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September/October 2005


American Bar Association Principles for Juries and Jury Trials

By The American Jury Project
Stephan Lansman, Reporter
Available at

Reviewed by David V. Wilson II

In 2004, American Bar Association President, Robert J. Grey, Jr., asked the ABA Litigation and Criminal Justice Sections as well as the Judicial Division of the ABA to study the workings of juries in America, and to develop principles for juries and jury trials to take the jury experience into the 21st century. This effort led to the American Jury Project. Composed of judges, trial lawyers, and academics, the American Jury Project presented draft principles for jury trials to a group of more than 100 academics, citizen groups, and national, state, and local Bar leaders at the National Symposium on the American Jury in October, 2004. The verbal debate and written comments generated by this symposium were incorporated into the draft principles and the revised unified set of Principles for Juries and Jury Trials resulted. On February 14, 2005, the American Bar Association House of Delegates unanimously passed a resolution adopting the Principles for Juries and Jury Trials as part of the official policy of the American Bar Association.
The purpose of the Principles for Juries and Jury Trials is to provide a suggested framework for reform and updating of jury trials and individual state judicial systems as well as the federal court system. They also serve as a guide for those areas of the jury trial process not currently covered by existing law. As the preamble to the Principles states, “Each principle is designed to express the best of current day jury practice in light of existing legal and practical constraints.” There are 19 principles, each organized with a series of standards designed to promote those principles. Where necessary, different standards governing those principles are set forth for civil and criminal jury trials. For example, under Principle 1, which states that the right to jury trial shall be preserved, there are different standards set forth for waiver of jury trial by criminal defendants, as opposed to parties in a civil case.
Reflecting a desire to reaffirm that jurors are equal participants in jury trials, along with counsel, judges, and parties, Principle 2 provides that “Citizens have the right to participate in jury service and their service should be facilitated.” To that end, the standards for Principle 2 call for paying jurors a reasonable fee that will defray expenses such as travel, parking, meals and child care. It also calls for respecting juror’s time by calling in the minimum number of panelists deemed necessary and by minimizing their waiting time. It also calls for job protection for jurors by prohibiting employers from discharging, laying off, or otherwise penalizing employees who must work because of jury service. Further, the standards call for prohibiting employers from requiring jurors to use leave or vacation time for the time spent on jury service or from requiring employees to make up the time they served on juries.
The Principles call for jury trial standards that would reflect a change in current Texas practice. For example, Principle 3 states that “Juries should have twelve members.” In particular, juries in civil cases should be constituted of twelve members “wherever feasible,” which would reflect a change in practice for most county courts, should the principles be incorporated into Texas law. However, the standards for Principle 3 affirm that six person juries are appropriate for misdemeanor criminal cases. Another principle that would be a change for Texas civil practice is Principle 4, which holds that “jury decisions should be unanimous.” Currently, civil verdicts by twelve person juries can be returned by as few as ten jurors. Under Principle 4, this would not be allowed until “after jurors deliberated for a reasonable period of time” and only if concurred on by at least 5/6ths of the jurors.
In a sign of evolving practice in jury trials, Principle 13, addressing promoting juror understanding of the facts involved, discusses the procedures for allowing jurors to question witnesses. In particular, the standards under Principle 13 recite, “In civil cases, jurors should, ordinarily, be permitted to submit written questions for witnesses.” Currently, Texas law is unsettled as to the trial court’s authority in civil cases to allow jurors to question witnesses. There are no standards in the Texas Rules of Civil Procedure when the trial court does allow such questioning. In such a vacuum, the standards for juror questioning under Principle 13 should prove a valuable starting point for judges and practitioners. It should be noted that Principle 13 suggests limiting juror questions to written questions, and it calls upon courts to “take into consideration the historic reasons why courts in a number of jurisdictions have discouraged juror questions.”
The genesis of the American Jury Project was a study by the section of Litigation of the American Bar Association called “The Vanishing Jury Trial.” This study determined through analysis of state and federal court statistics that the jury trial in America was being used less and less in civil and criminal cases. Thus, the American Jury Project was born to preserve and promote the jury trial as the 21st century approaches maturity. As policy makers in state legislatures and Congress, as well as state high courts in their rule making capacity, address the law governing jury trials in the future, the Principles for Juries and Jury Trials should prove a useful guide. They may also prove useful to practitioners at trial and on appeal when events arise which are not currently covered by state or federal law. For example, one can conceive of circumstances where counsel for a habeas petitioner may point to the Principles or their standards in arguing the client was denied a fair trial. Likewise, counsel may find the Principles useful in circumstances where trial courts provide trial notebooks to jurors or allow jurors to participate by submitting questions to witnesses, by pointing to them as a suggested framework for those practices, which are not currently covered by Texas law.

David V. Wilson II is a shareholder with Hays, McConn, Rice & Pickering and an Associate Editor of The Houston Lawyer.


Twelve Angry Men

BMGM/UA, 1957
Directed by Sidney Lumet
Story and Screenplay by Reginald Rose

Reviewed by Marc M. Tittlebaum

The 1957 classic film, Twelve Angry Men, portrays the very essence of our judicial system—trial by jury. Unlike any other film in the legal genre, Twelve Angry Men spends 99 percent of the film behind the sacred boundary of the jury room. In fact, all but three minutes of the movie takes place in the small jury room. Throughout the film, the very fabric of human nature is peeled back to reveal the inner struggle that often goes unnoticed in our honorable profession. Henry Fonda stars in the film that was masterfully brought to life by Director Sidney Lumet, who also directed 1982’s The Verdict, starring Paul Newman. Fonda also co-produced the film. Twelve Angry Men is closely based on the screenplay by the same title written by Reginald Rose. Rose adapted the screenplay from his script for a tele-play version of Twelve Angry Men. It was considered low budget for the time and was filmed in only 17 days. The film was nominated for three Academy Awards: Best Picture, Best Director and Best Adapted Screenplay.1
The movie opens with a shot of the courthouse steps. We are then immediately taken through the courthouse and into the courtroom, where the jury is being charged in a murder trial by a weary judge. Twelve Angry Men has been criticized over the years as being overly idealistic. However, as much as the film is a celebration of the value and effectiveness of our jury system, it is also an indictment and critique of the same.
The murder trial involves a young uneducated Puerto Rican boy charged with first-degree murder in the stabbing death of his father. The twelve angry jurors are both all male and all white. The case goes to the jury on the “hottest day of the year,” and the men are literally locked in a sweltering jury room to deliberate. The men, anxious to be done with the inconvenience of jury service, immediately take a vote. The result is 11-1 in favor of a guilty verdict, with Fonda’s Juror No. 8 as the lone holdout.
Fonda’s performance is striking and poignant, as he clearly carries the film. As the deliberations progress, Juror No. 8 stands strong in the face of criticism and indifference and opens the minds of the other jurors by forcing them to look at the evidence without the filters and prejudices that are innate to man. Although one must remember that Twelve Angry Men is a work of fiction, the dynamic among the jurors is believable and moving. Much of the deliberations focus on the closed-mindedness, bigotry and ignorance of many, if not most, of the jurors. As the deliberations continue, Fonda is able to, through sound reason and discussion, compel the other jurors to truly understand the essence of reasonable doubt in our criminal justice system.
Twelve Angry Men is a must see, especially for the trial attorney. It runs just over one and one half hours and is a quick and enjoyable movie that you should make time to see.

1. Twelve Angry Men failed to win any Oscars that year, with The Bridge Over The River Kwai sweeping all three categories.

Marc M. Tittlebaum, a commercial litigator at King, LeBlanc & Bland, PLLC, graduated Magna Cum Laude from South Texas College of Law. Using his English/Creative Writing undergraduate degree from LSU, Marc was an Articles Editor at South Texas.


Tales from the Southwest Courtroom

Judge James Barlow
Xlibris, 300 pages
Available at

Reviewed by Benjamin K. Sanchez

In this day and age of legal thrillers routinely topping the best-sellers list, many attorneys have tapped into their artistic skills by becoming authors. We all know fiction attorney-authors such as John Grisham and Scott Turow, and we also know that fiction is stranger than reality in most cases. Therefore, it is always a pleasant surprise to read memoirs of those in the legal community because we, as attorneys, can truly relate to the events in the lives of our colleagues.
Judge James E. Barlow’s Tales from the Southwest Courtroom is especially pleasing because of its Texas setting. Judge Barlow has been a lawyer, state legislator, Bexar County district attorney, district judge, and law school adjunct professor. You would think with his military background that Judge Barlow would be no-nonsense in his delivery, and you’d be wrong. What works for Barlow’s memoirs is his easy conversational style. The experience of reading his book is similar to gathering around the campfire while Grandpa tells his tales of yesteryear!
Barlow saw the criminal world from all angles. He “defended, prosecuted, and judged murderers, whores, thieves, madams, and con men for a lifetime.” Through this experience, Barlow is able to comprehend, analyze, and explain all sides of the criminal justice system. This gives the reader a unique perspective from someone who has been there and done that.
There is a reason, however, that Barlow’s memoirs are self-published through Xlibris. Barlow doesn’t mince words and calls them as he sees them. Sometimes that leads to what some may call “political incorrectness.” I enjoyed this change of pace because it allowed me to understand Barlow as a person and thus truly understand why he did the things he did. As Barlow states in his foreword, he wanted to tell his side of it while he still could. “So there it is, the truth, with all its bugs, as I saw it. This is not fiction. I did not make it up. It is just what happened as I saw it,” writes Barlow.
Barlow’s life and career is far more interesting than any fiction novel, proving once again that reality is stranger than fiction.

Benjamin K. Sanchez practices with the firm of Leyh & Payne LLP. He is a member of The Houston Lawyer editorial board.