Heath: Trump’s Verdict and Jury Reform
by Judge Dan Heath
Like many of you, I watched with interest the recent so-called “Trump Hush Money Trial.” I was an Allen County trial judge for more than twenty-two years from January of 1997 to April of 2018 and, during that time, I conducted dozens of civil jury trials. So during the Trump trial I kept a watchful eye on the management of the trial under New York law. Specifically, I was a stunned to learn that in 2024 the State of New York does not allow its juries to retire to deliberate with a copy of the jury instructions in hand! The “Trump Hush Money Trial” jury did not have a copy of some thirty-five pages of final instructions to consult as they deliberated. The case was certainly complicated enough to warrant the jury having a copy of the court’s final instructions as it deliberated.
While I’m surprised at what happened in the Trump case, I’m happy to explain to Journal-Gazette readers that Indiana is a leader in jury reform. In the balance of this piece let’s review some of those jury reforms that have taken place in Indiana — reforms that trust jurors to make reasonable use of evidence and instructions during trial and deliberation.
First, though, I have a confession and some historical context for you. My first jury trials did notinclude my giving the jury of copy of the instructions. I was mentored not to give them the instructions. Jurors simply were not trusted to make proper use of instructions outside the presence of the judge.
Fortunately, while I was navigating my new career on the bench In 1997, Indiana was getting serious about jury reform, taking its lead from 1993 reforms already in place in Arizona. Under the leadership of our Indiana Supreme Court Chief Justice Randall Shepard, and committees from our judicial conference and state bar, a joint committee issued its 2001 “Juries for the 21st Century” report which contained a number of new recommendations for managing jury trials that showed great, new found trust in the intelligence, reasonableness and common sense of Hoosier jurors. [See “Jury Trials Aren’t What They Used to Be” by Randall T. Shepard, Indiana Law Review (2005): 859-866.] Many of the recommendations set forth in that report have been embodied in “Indiana Jury Rules” for more than two decades (since around 2001) and some were quite controversial, if not now, certainly then.
For example, if you attend any trial in Indiana today, you’ll find that the lawyers can give the jurors a “mini statement” as the court opens the trial to begin the jury selection process so the prospective jurors have an idea of what the case is about before they are selected. After jurors are selected and the court begins giving the jury “preliminary instructions,” each juror will have a copy of those instructions as a part of a “jury notebook” that also contains a copy of documents admitted into evidence by stipulation. Later a copy of the court’s final instructions are also given to each juror to have with them as the court reads the instructions to them and to have with them during deliberation. Tablets and pens are given to each juror for note taking during the trial and also in case jurors want to ask witnesses questions by submitting written questions to the judge! Also, jurors can discuss the evidence in the case during breaks in the jury room when they are all present as long as they reserve judgment about the outcome of the case until deliberations begin! These last reforms were highly controversial.
Shortly after our new rules were adopted, I was asked by our Chief Justice Shepard to attend a meeting of the Michigan Bar Association House of Delegates to answer questions about our new rules. Lawyers there were aghast that we Hoosiers would allow jurors to discuss trial evidence during breaks as a long-standing instruction to jurors almost everywhere was not to discuss evidence with anyone prior to deliberation. “How could you possibly allow jurors to discuss the case prior to deliberation?” was what I recall a Michigan lawyer asking me. And I recall telling him, “You know that jurors are likely discussing your cases during trial whether you have instructed them to or not. You might as well treat the jury realistically.” I remain firm in my belief today that we did the right thing by our Hoosier jurors. New York should do the same.
Judge Dan Heath, an adjunct scholar of the Indiana Policy Review Foundation, recently retired from the Allen County Superior Court, has a biography that stretches over five decades of Indiana political history, serving on numerous congressional campaigns and in public offices before joining the bench. Heath was narrowly defeated in the 1989 special election to fill Dan Quayle’s congressional seat. Earlier, he was chief of staff and safety director for Fort Wayne Mayor Paul Helmke, and before that administrative assistant to Lt. Gov. John Mutz, and district representative for Congressman Dan Coats. A version of this essay was scheduled to appear in the Fort Wayne Journal Gazette.
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