IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO GR 15, NEW GR 28, CR 47, CrR 6.8, CRLJ 38, CrRLJ 6.8, CR 43, CRLJ 43, CR 51, CrR 6.15, CRLJ 51 AND CrRLJ 6.15

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ORDER NO. 25700-A-730

     The Washington State Jury Commission having recommended the adoption of the proposed amendments to GR 15, NEW GR 28, CR 47, CrR 6.8, CRLJ 38, CrRLJ 6.8, CR 43, CRLJ 43, CR 51, CrR 6.15, CRLJ 51 AND CrRLJ 6.15, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(f), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Office of the Administrator for the Court's websites expeditiously.

     (b) The purpose statement as required by GR 9(d), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 90 days from the date published in the Washington Reports. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 6th day of March 2002.

Gerry L. Alexander

Chief Justice

     (1) Background: Just before the Washington State Jury Commission completed its work, the Supreme Court amended GR 15. Language was added in section (j) establishing a presumption of privacy for juror information. Section (j) also includes a provision that allows the parties and their attorneys to petition the court for access to juror information after the conclusion of a trial. The Commission recommended that GR 15 be further amended to address two additional issues. First, the process for petitioning the court for access to juror information should be expanded to apply to all members of the public. Second, GR 15 does not address master jury source list records. GR 15(a) states in part, "The clerk shall maintain all documents and materials filed with the court, and shall make available for public examination all files, cases, records, documents or materials which have not been ordered destroyed or sealed." Thus, court clerks currently permit access to the master jury source list records containing potential jurors' names and addresses. The situation could arise where access to the address information for jurors in a particular trial has been restricted by the court. Yet, currently, it would be possible to obtain the master jury source list from the clerk's office containing those jurors' addresses.

     (2) Purpose: The proposed amendment to section (j) seeks to give the public the same mechanism as the parties and attorneys to petition the court for access to individual juror information. The new section (k) seeks to resolve the apparent contradiction between GR 15(a) and GR 15(j) related to the master jury source list maintained by the clerk's office.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 18.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

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     [j] Access to Juror Information. Individual juror information, other than name, is presumed to be private. After the conclusion of a jury trial, the attorney for a party, or party pro se, or member of the public, may petition the trial court for access to individual juror information under the control of court. Upon a showing of good cause, the court may permit the petitioner to have access to relevant information. The court may require that juror information not be disclosed to other persons.

     [k] Access to Master Jury Source List. Master jury source list information, other than name, is presumed to be private. Upon a showing of good cause, the court may permit a petitioner to have access to relevant information from the list. The court may require that the information not be disclosed to other persons.

GR 9(d) Cover Sheet

     (1) Background: The Washington State Jury Commission recommends that in order to promote broad citizen participation and to send a message that courts respect the time commitments of citizens, a state-wide policy should be established that will strictly enforce and limit the granting of jury excusals while liberally granting requests for postponement. The Commission recommends creating a standardized process for postponing jury service that includes prompt responses to correspondence from prospective jurors. Best practices for granting excusals and postponements are detailed in Recommendation 10 of the Commission's Report.

     (2) Purpose: This proposed rule allows a judge to delegate written authority to disqualify, postpone, or excuse a potential juror from jury service. The proposal adopts a policy of liberally allowing postponements for personal or work-related inconvenience and of strictly limiting excusals.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 10.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

     [a] Scope of rule. This rule addresses the procedures for postponing and excusing jury service under RCW 2.36.100 and 2.36.110 and for disqualifying potential jurors under RCW 2.36.070 (basic statutory qualifications).

     [b] Delegation of authority to postpone, excuse, or disqualify.

     (1) The judges of a court may delegate to court staff and county clerks their authority to disqualify, postpone, or excuse a potential juror from jury service.

     (2) Any delegation of authority under this rule must be written and must specify the criteria for making these decisions.

     (3) Judges may not delegate decision-making authority over any grounds for peremptory challenges or challenges for cause that fall outside the scope of this rule.

     [c] Grounds for postponement of service.

     (1) Postponement of service for personal or work-related inconvenience should be liberally granted when requested in a timely manner.

     (2) Postponement shall be to a specified period of time within the twelve-month period pursuant to RCW 2.36.100(2).

     [d] Grounds for excusal from service.

     (1) Excusal from jury service shall be limited and shall be allowed only when justified by the criteria established in RCW 2.36.100(1) and 2.36.110.

     [e] Grounds for disqualification of potential jurors. [Reserved. See RCW 2.36.070.]

GR 9(d) Cover Sheet

Note-Taking by Jurors:

     (1) Background: Court rules currently allow jurors to take notes with the permission of the trial judge. Although many judges in the state allow jurors to take notes during trial, the practice is not universal. Research shows that jurors who take notes remember the evidence more accurately, apply the evidence to the law more accurately, are more attentive during trial, and are more satisfied with jury service. The Washington State Jury Commission recommends that jurors should be permitted to take notes during trial, regardless of the length or complexity of the trial.

     (2) Purpose: The proposed amendment would permit jurors to take notes in every case.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 29.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

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     [j] Note-Taking by Jurors. With the permission of the trial judge, In all cases, jurors shall be allowed to may take written notes regarding the evidence presented to them and keep these notes with them during when they retire for their deliberation. The court may allow jurors to keep these notes with them in the jury room during recesses, in which case jurors may review their own notes but may not share or discuss the notes with other jurors until they begin deliberating. Such notes should be treated as confidential between the jurors making them and their fellow jurors, and shall be destroyed immediately after the verdict is rendered.

GR9(d) Cover Sheet

Note-Taking by Jurors:

     (1) Background: See Background statement for CR 47.

     (2) Purpose: See Purpose statement for CR 47. Also, the rule's last sentence is being revised to parallel other court rules on this topic: CR 47; CRLJ 38; and CrRLJ 6.8.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 29.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

GR 9(d) Cover Sheet

Note-Taking by Jurors:

     (1) Background: See Background statement for CR 47.

     (2) Purpose: See Purpose statement for CR 47.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 29.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

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     [h] Note-Ttaking by Jurors. With the permission of the trial judge, In all cases, jurors shall be allowed to may take written notes regarding the evidence presented to them and keep these notes with them during when they retire for their deliberation. The court may allow jurors to keep these notes with them in the jury room during recesses, in which case jurors may review their own notes but may not share or discuss the notes with other jurors until they begin deliberating. Such notes should be treated as confidential between the jurors making them and their fellow jurors, and shall be destroyed immediately after the verdict is rendered.

GR 9(d) Cover Sheet

Note-Taking by Jurors:

     (1) Background: See Background statement for CR 47.

     (2) Purpose: See Purpose statement for CR 47. Also, the rule's last sentence is being revised to parallel other court rules on this topic: CR 47; CRLJ 38; and CrR 6.8.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 29.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

GR 9(d) Cover Sheet

Questions of Witnesses from Jurors:

     (1) Background: The Washington State Jury Commission recommended that jurors should be allowed to propose written questions for witnesses during civil trials, subject to careful judicial supervision. Permitting jurors' questions acknowledges the important role of jurors as active learners and active participants in the search for the truth, promotes efforts to focus on the merits of a case rather than speculation, and avoids the real possibility of an erroneous verdict based on confusion or misunderstanding. Judges and attorneys who have used this procedure report that the great majority of juror questions are serious, concise, and relevant to the issues of the trial. Counsel also find the questions to be a useful gauge of how clearly they are explaining their case. Jurors who have been permitted to ask questions indicate the procedure kept them engaged in the proceeding and gave them greater satisfaction with jury service. Studies verify that the advantages to jurors and the trial as a whole outweigh the feared risks. Best practices will be developed for these procedures.

     (2) Purpose: The new section would permit jurors to submit written questions for witnesses in civil cases.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 33.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

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     [k] Juror Questions for Witnesses. The court shall permit jurors to submit to the court written questions directed to witnesses. Counsel shall be given an opportunity to object to such questions in a manner that does not inform the jury that an objection was made. The court shall establish procedures for submitting, objecting to, and answering questions from jurors to witnesses. The court may rephrase or reword questions from jurors to witnesses. The court may refuse on its own motion to allow a particular question from a juror to a witness.

GR 9(d) Cover Sheet

Questions of Witnesses from Jurors:

     (1) Background: See Background statement for proposal to amend CR 43.

     (2) Purpose: See Purpose statement for proposal to amend CR 43.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 33.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

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     [k] Juror Questions for Witnesses. The court shall permit jurors to submit to the court written questions directed to witnesses. Counsel shall be given an opportunity to object to such questions in a manner that does not inform the jury that an objection was made. The court shall establish procedures for submitting, objecting to, and answering questions from jurors to witnesses. The court may rephrase or reword questions from jurors to witnesses. The court may refuse on its own motion to allow a particular question from a juror to a witness.

GR 9(d) Cover Sheet

Questions from Deliberating Jurors and Requests to Rehear or Replay Evidence

     (1) Background:

     (a) Questions from Deliberating Jurors. The failure of trial judges to be of greater assistance to jurors during deliberations is a primary source of juror confusion. Research shows that the vast majority of the time, judges answer jurors' requests for clarification of instructions by simply referring the jurors to the instructions without further comments. Although many judges and lawyers consider juror questions an inconvenience, they should be welcomed as opportunities to determine whether additional or corrective action is necessary to ensure juror comprehension. Judges should exercise their discretion to respond more fully to deliberating jurors' questions. As long as the judge does not impermissibly comment on the evidence, imply a view on the merits, or pressure the jury, the judge's response will not constitute error.

     (b) Requests to Rehear or Replay Evidence. Court rules provide that when the jury retires for deliberation, it must take with it the written instructions given, all exhibits (except testimonial exhibits such as depositions) received in evidence, and the verdict form(s). However, the court rules do not specifically address the jury's ability to review testimonial evidence after deliberations have begun. Concerns sometimes are expressed that granting these requests may be interpreted as an unconstitutional comment on the evidence or that jurors might place undue weight on the selected testimony.

     In State v. Koontz, 102 Wn.App.309 (2000), the Court of Appeals upheld the replaying of videotaped trial testimony when requested by a jury that was otherwise deadlocked. The Court of Appeals held that trial courts have broad discretion to reread or replay trial testimony at a jury's request, but also emphasized that this discretion must be exercised with caution due to the dangers inherent in rereading testimony for deliberating jurors (noted above). Both the Koontz opinion and the Report of the Washington State Jury Commission discuss these dangers along with appropriate safeguards. Appropriate safeguards include: soliciting argument from the parties; giving the jurors cautionary instructions; making sure that the requested testimony does not overemphasize any particular party's position; ordinarily not selecting additional evidence for the jury to hear lest jurors interpret this as a judicial comment on the evidence; and rereading or replaying the testimony in open court instead of allowing the jurors to review the testimony in the jury room. Best practices will be developed for these procedures.

     (2) Purpose: The proposed amendment would establish procedures for deliberating jurors to ask questions regarding clarification of instructions or questions on evidence. It would also grant judges discretion to allow jurors to rehear evidence as long as appropriate safeguards are in place.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 38, 39, and 40.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

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     [i] Questions from Jury During Deliberations Further Instructions. After retirement for deliberation, if the jury desires to be informed on any point of law, the judge may require the officer having them in charge to conduct them into court. Upon the jury being brought into court, the information requested, if given, shall be given in the presence of, or after notice to the parties or their counsel. The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff without any indication of the status of the jury's deliberations. The court shall notify the parties of the contents of the questions and provide them an opportunity to comment upon an appropriate response. Written questions from the jury, the court's response and any objections thereto shall be made a part of the record. The court shall respond to all questions from a deliberating jury in open court or in writing. In its discretion, the court may grant a jury's request to rehear or replay evidence, but should do so in a way that is least likely to be seen as a comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes the possibility that jurors will give undue weight to such evidence. Any additional instruction upon any point of law shall be given in writing.

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GR 9(d) Cover Sheet

Questions from Deliberating Jurors and Requests to Rehear or Replay Evidence

     (1) Background: See Background statement for proposal to amend CR 51.

     (2) Purpose: See Background statement for proposal to amend CR 51.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 38, 39, and 40.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

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     [f] Questions from Jury During Deliberations Additional or Subsequent Instructions.

     (1) After retirement for deliberation, if the jury desires to be informed on any point of law, the judge may require the officer having them in charge to conduct them into court. Upon the jury being brought into court, the information requested, if given, shall be given in the presence of, or after notice to the parties or their counsel. The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff. The court shall notify the parties of the contents of the questions and provide them an opportunity to comment upon an appropriate response. Written questions from the jury, the court's response and any objections thereto shall be made a part of the record. The court shall respond to all questions from a deliberating jury in open court or in writing. In its discretion, the court may grant a jury's request to rehear or replay evidence, but should do so in a way that is least likely to be seen as a comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes the possibility that jurors will give undue weight to such evidence. Any additional instruction upon any point of law shall be given in writing.

     (2) After jury deliberations have begun, the court shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate.

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GR9(d) Cover Sheet

Questions from Deliberating Jurors and Requests to Rehear or Replay Evidence

     (1) Background: See Background statement for proposal to amend CR 51.

     (2) Purpose: See Background statement for proposal to amend CR 51.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 38, 39, and 40.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

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     [i] Questions from Jury During Deliberations Further Instructions. After retirement for deliberation, if the jury desires to be informed on any point of law, the judge may require the officer having them in charge to conduct them into court. Upon the jury's being brought into court, the information requested, if given, shall be given in the presence of, or after notice to the parties or their counsel. The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff without any indication of the status of the jury's deliberations. The court shall notify the parties of the contents of the questions and provide them an opportunity to comment upon an appropriate response. Written questions from the jury, the court's response and any objections thereto shall be made a part of the record. The court shall respond to all questions from a deliberating jury in open court or in writing. In its discretion, the court may grant a jury's request to rehear or replay evidence, but should do so in a way that is least likely to be seen as a comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes the possibility that jurors will give undue weight to such evidence. Any additional instruction upon any point of law shall be given in writing.

     [j] Unchanged

GR 9(d) Cover Sheet

Questions from Deliberating Jurors and Requests to Rehear or Replay Evidence

     (1) Background: See Background statement for proposal to amend CR 51.

     (2) Purpose: See Background statement for proposal to amend CR 51.

     (3) Washington State Bar Association Action: None.

     (4) Supporting Materials: Washington State Jury Commission Report to the Board for Judicial Administration, July 2000, Recommendation 38, 39, and 40.

     (5) Spokesperson: Hon. Daniel Berschauer.

     (6) Hearing: Not recommended.

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     [e] Questions from Jury During Deliberations Additional or Subsequent Instructions.

     (1) After the jury retires for deliberation, any instructions shall be given in writing. They may be given in open court or delivered to the jury room, but only in the presence of, or after notice to, the parties and their lawyers. The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff. The court shall notify the parties of the contents of the questions and provide them an opportunity to comment upon an appropriate response. Written questions from the jury, the court's response and any objections thereto shall be made a part of the record. The court shall respond to all questions from a deliberating jury in open court or in writing. In its discretion, the court may grant a jury's request to rehear or replay evidence, but should do so in a way that is least likely to be seen as a comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes the possibility that jurors will give undue weight to such evidence. Any additional instruction upon any point of law shall be given in writing.

     (2) After jury deliberations have begun, the court shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate.

     [f] Unchanged

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The brackets and enclosed material in the text above occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

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