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Abstract

In the United States, the overwhelming practice in civil jury trials (and certainly in criminal trials) is that jurors must wait to deliberate until they have heard all the evidence, the attorneys’ closing arguments, and received the instructions on the law from the court. Generally, jurors may not discuss the evidence they are hearing or seeing as the trial progresses, and the judge, at multiple points during the trial, typically instructs jurors not to do so, especially before any recess.

Colorado, among a handful of other jurisdictions, is an exception to that practice. In civil jury trials in district court, the district judge may allow pre-deliberation discussions by the jury. The practice that began in 1998 through a pilot program authorized by the Colorado Supreme Court now seems like an afterthought. District judges routinely allow pre-deliberation discussion and instruct juries accordingly. I am among those judges.

But since the pilot program, little has been done to revisit how jury pre-deliberation discissions are working. Indeed, since 1998, no empirical research has been conducted to address how the practice plays out in district court trials, how often district judges allow pre-deliberation discussions, or how often a judge exercises her discretion to limit (or prohibit) such a practice and why. Similarly, while attorneys were polled in 1998, no new empirical research has been conducted on their views about pre-deliberation discussions.

This article seeks to ascertain those views, primarily through surveys of district court judges and attorneys who try cases in district courts throughout the state. The findings based on the survey responses suggest continued satisfaction with the practice of mid-trial discussions by juries.

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