Colorado is one of an increasing number of states that allow jurors in civil trials to discuss evidence before they begin formal deliberations and reach a verdict.
By doing so, jurors can talk about evidence when it is fresh in their minds, hear divergent views, pinpoint important issues and clear up confusing testimony, supporters say. But critics say jurors can come to conclusions before all the evidence is heard.
Former Colorado Supreme Court Justice Rebecca Kourlis, chief architect of the Colorado effort to allow predeliberation discussion, believes the change helps jurors as they see and hear the evidence.
“I think it allows people to process information in a way that is comfortable to them …,” she said. “None of us learn alone. The very first day in grade school, you learn in combination with other learners. Jurors are clearly no different.”
But Dan Hoffman, former dean of the University of Denver School of Law who is now in private practice, does not like predeliberation discussions.
Hoffman said he and others have suspected for years that jurors were already discussing evidence, even though they weren’t supposed to.
“It (the jury reform) further aggravates the problem,” Hoffman said.
Lawyer Sueanna Johnson was a juror in a breach-of-contract case in Denver in January. She said juror discussions in the case frequently revolved around the credibility of witnesses and what each witness said.
Johnson said the jurors waited until all the evidence was presented before making a decision.
“It was very much, ‘wait and see what the defendant puts on,”‘ Johnson said. “The jurors were very diligent, making sure they did a proper job. They took the job very seriously.”
The jury was conservative in its use of predeliberation discussions, Johnson said, but the new policy will free juries in other cases to discuss the evidence as they see fit.
Arizona was the first state to allow jurors to discuss a case before deliberating, and Colorado began studying that effort a few years ago.
In 2003, the Colorado Supreme Court gave judges statewide permission to allow predeliberation discussion. The practice has been in widespread use for the past year in Colorado. Now, 26 states nationwide allow jurors to discuss evidence prior to formal deliberations.
Alan Avery, who specializes in defending medical malpractice lawsuits, said a benefit of the practice is that jurors can immerse themselves in a case, rather than having to sit silently next to each other until deliberations begin.
He said if jurors are confused about witness testimony, they can talk about it among themselves and even question witnesses.
“It can clarify that confusion,” Avery said.
Some defense attorneys last year challenged the right of jurors to ask questions, but the Colorado Supreme Court found that it did not violate a defendant’s right to a fair trial.
Jack Olsen, a lawyer with 27 years’ experience, said another benefit is that if one juror misses something during testimony, other jurors would likely have caught it.
“When you have a group like that, they don’t miss a thing,” Ol sen said.
One recent case in Denver in which jurors were allowed to discuss the evidence prior to deliberations resulted in a defense verdict.
Carol Rothman, a juror who served on a legal malpractice case, said the jury had little time to discuss the evidence as it was coming in. The case involved an Iranian woman who believed she was facing possible deportation because an immigration lawyer’s law firm failed to send federal authorities a correct filing fee.
Rothman said the judge told the jurors that the only time they could discuss the evidence was when they were all together in the jury room.
“I don’t think you have the time to do it” during breaks, Rothman said.
During breaks, Rothman said, the jury discussed the cultural differences between Iran and the United States. The jury discussed how the plaintiff, a young woman, always kept her eyes down and never smiled and how her father sat directly behind her. Jurors also couldn’t figure out why the case hadn’t been settled out of court.
Nobody on the jury was in a rush to reach judgment, Rothman said.
Craig Fleishman, the defense attorney in the case in which Rothman served, objects to the practice. He said he believes the discussions give the plaintiff an unfair advantage because the plaintiff always presents evidence first.
If the jurors begin deliberating on the credibility of witnesses, the validity of claims, the accuracy of facts, and work toward a resolution before the defendant puts on his case, the result is “quite unfair,” Fleishman said.
The jury in Fleishman’s case came back in three hours.
Kourlis said studies have shown that the belief that jurors make up their minds early in trials is incorrect.
“It is patronizing in some regard that jurors don’t have the capacity to understand that it is important that they don’t make up their minds until it is all over,” Kourlis said. “They are not going to behave differently because they can discuss it among themselves. You put them in the jury box, there is this magic. They understand that they hold justice in their hands and that it is up to them to make the best decision they possibly can.”
Staff writer Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com.
