Order                                                                           Michigan Supreme Court
                                                                                      Lansing, Michigan

  March 9, 2012                                                                         Robert P. Young, Jr.,
                                                                                                  Chief Justice

  3/December 2011                                                                       Michael F. Cavanagh
                                                                                              Marilyn Kelly
                                                                                        Stephen J. Markman
                                                                                        Diane M. Hathaway
  142234                                                                                    Mary Beth Kelly
                                                                                            Brian K. Zahra,
                                                                                                       Justices


  PEOPLE OF THE STATE OF MICHIGAN,
            Plaintiff-Appellee,
  v                                                          SC: 142234
                                                             COA: 293285
                                                             Macomb CC: 2009-000434-FC
  MAURICE ANTHONY RICHARDS,
           Defendant-Appellant.

  _________________________________________/


         On order of the Court, leave to appeal having been granted and the briefs and oral
  arguments of the parties having been considered by the Court, we VACATE our order of
  May 18, 2011. The application for leave to appeal the October 19, 2010 judgment of the
  Court of Appeals is DENIED, because we are no longer persuaded that the questions
  presented should be reviewed by this Court.

         YOUNG, C.J. (concurring).

          In 2008, this Court decided to institute a pilot project to test the efficacy of several
  proposed changes to court rules pertaining to jurors. The project began in late 2008 and
  ended December 31, 2010. On June 29, 2011, this Court issued an administrative order
  instituting many of the proposed jury reforms by amending MCR 2.512, 2.513, 2.514,
  2.515, 2.516, and 6.414.1 The rules went into effect on September 1, 2011, and the Court
  said it would review the efficacy of the changes in 2014.

  1
     489 Mich ___. Proposed MCR 2.513(K) allowed predeliberation discussions in
  criminal trials, see 482 Mich lxxxix, xcvii, while the newly enacted MCR 2.513(K)
  allows trial judges to permit jurors to discuss a case during midtrial recesses in civil cases
  only.
                                                                                            2


       While the pilot project was ongoing, defendant was charged with carjacking and
felony-firearm. Defendant admitted that he stole the victim’s car, but he claimed that
contrary to the victim’s testimony, he never brandished a pistol. The trial judge
announced to the jury during preliminary instructions that he was one of seven circuit
judges who had been chosen to participate in a pilot program to test proposed changes to
the way jury trials are conducted. The judge explained that contrary to past practices, the
jurors would be permitted to discuss the evidence among themselves during the trial, as
long as all the jurors were present in the jury room. He also explained that it was
important for them to keep discussions tentative until they had heard all of the evidence,
the court’s instructions, and the attorneys’ arguments. The jurors were also given
notebooks with some of the instructions. Defense counsel objected to allowing the jurors
to engage in predeliberation discussions. The jury ultimately convicted defendant as
charged.

       Defendant appealed as of right, claiming that the jurors’ predeliberation
discussions violated his due process right to trial by an impartial jury. The Court of
Appeals rejected defendant’s claim and affirmed his convictions in an unpublished
opinion per curiam.2 The Court of Appeals held that the jurors’ predeliberation
discussions did not violate defendant’s right to a fair trial because the trial court’s order
was consistent with Administrative Order 2008-2 and because none of the potential
problems with allowing jurors to engage in predeliberation discussions were implicated.

      We granted defendant’s application for leave to appeal and directed the parties to
address “whether the circuit judge’s instruction to the jury permitting jurors to discuss the
evidence among themselves in the jury room during trial recesses violated the
defendant’s right to an impartial jury and a fair trial.”3

      Criminal defendants have a right to an impartial jury4 and to a fair trial,5 but there
is no explicit constitutional right prohibiting jurors from discussing the case among
themselves before the matter is submitted to them for decision. In this case, defendant
2
 People v Richards, unpublished opinion per curiam of the Court of Appeals, issued
October 19, 2010 (Docket No. 293285).
3
    People v Richards, 489 Mich 924 (2011).
4
  The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State and district wherein
the crime shall have been committed . . . .” US Const, Am VI.
5
  The Fourteenth Amendment provides,“[N]or shall any State deprive any person of life,
liberty, or property, without due process of law . . . .” US Const, Am XIV, § 1.
                                                                                            3

claims a due process violation. In resolving a due process challenge, we must consider
whether a particular procedure—such as the procedure forbidding jurors from
undertaking predeliberation discussions—is fundamentally necessary to ensure a fair
trial.6 Since “[h]istorical practice is probative of whether a procedural rule can be
characterized as fundamental,”7 it is appropriate to consider the history of juries in
English and American jurisprudence. The earliest English juries conducted their own
investigations and asked questions at will during trial.8 Over time, juries became less and
less active.9 By the eighteenth century, “the jury model available to the colonies was one
based on almost total jury passivity.”10 Most, if not all, of the colonies had prohibitions
on predeliberation discussions in place when the federal Constitution was ratified.11
Thus, the historical practice in the United States since the time of ratification has been to
prohibit predeliberation discussions.

        While consideration of an historical practice is a relevant inquiry, a practice is not
constitutionally required merely because it has traditionally been used in American
courts. In Williams v Florida, the Supreme Court of the United States upheld Florida’s
use of 6-person juries, notwithstanding the common law tradition of 12-person juries.12
In doing so, it established a framework to determine whether a particular aspect of a jury
trial “has been immutably codified into our Constitution.”13 The Court concluded that the
Framers did not “equate the constitutional and common-law characteristics of the jury.”14
Rather, a court must examine “the function that the particular feature performs and its


6
    Duncan v Louisiana, 391 US 145, 148-49 (1968).
7
    Medina v California, 505 US 437, 446 (1992).
8
  Dann, “Learning lessons” and “speaking rights”: Creating educated and democratic
juries, 68 Ind LJ 1229, 1232 (1993).
9
    Id. at 1232-35.
10
     Id. at 1235.
11
     Id. at 1235-36.
12
   Williams v Florida, 399 US 78, 103 (1970). While the issue in Williams was not
identical to the issue presented in the instant case, the Court’s analysis is helpful because
the Williams Court was faced with the task of evaluating the constitutionality of a
longstanding jury tradition that did not have explicit textual support in the Constitution.
13
     Id. at 90.
14
     Id. at 99.
                                                                                            4

relation to the purposes of the jury trial”15 to determine whether that feature is “an
indispensible component of the Sixth Amendment.”16

       To this end, the Court stated that the “essential feature of a jury obviously lies in
the interposition between the accused and his accuser of the commonsense judgment of a
group of laymen, and in the community participation and shared responsibility that
results from that group’s determination of guilt or innocence.”17 Thus, in Williams, the
Court concluded that “the 12-man requirement cannot be regarded as an indispensable
component of the Sixth Amendment.”18

        Applying the framework required by Williams leads me to conclude that allowing
jurors to engage in predeliberation discussions neither violates the basic purposes of a
jury nor prevents members of the community from using their common sense to decide a
defendant’s guilt by discussing among themselves the evidence as it is produced during a
trial. In fact, there is evidence that predeliberation discussions enhance a jury’s ability to
reach a fairer and just result.19

        Those who oppose a rule allowing predeliberation discussions typically raise five
arguments in support of their claim that predeliberation discussions are unconstitutional.
All are based on intuition about human behavior and have no real support in studies of
jury behavior. First, they argue that “since the prosecution’s evidence is presented first,
any initial opinions formed by jurors are likely to be unfavorable to the defendant, and
there is a tendency for a juror to pay greater attention to evidence that confirms his initial
opinion.”20 Even if this unsupported assertion were true, it would have no bearing on the
issue presented because jurors can rely on earlier-presented evidence more than later-
presented evidence even when predeliberation discussions are not allowed. The

15
     Id. at 99-100.
16
     Id. at 100.
17
     Id.
18
     Id.
19
   Anderson, Let jurors talk: Authorizing predeliberation discussion of the evidence
during trial, 174 Mil L R 92, 104, 109, 111, 113, 115, and 118 (2002). During
Michigan’s recent pilot program, 91 percent of jurors who responded indicated that
predeliberation discussions helped them understand and recall evidence and that it helped
them reach a correct verdict. Most of the participating judges who responded reported
that they thought the practice increased fairness, efficiency, and understanding.
20
     Commonwealth v Kerpan, 508 Pa 418, 422 (1985).
                                                                                            5

prosecution traditionally presents its evidence first. This is an inevitable aspect of our
system as the prosecution bears the burden of proving every element beyond a reasonable
doubt and the defendant does not have a duty to present any evidence. There is also some
contrary evidence that during predeliberation discussions jurors may be alerted to
problems with their initial impressions and pay closer attention to potential flaws or
strong arguments in opposition to their initial impressions.21 Thus, the fact that the
prosecution presents its evidence first does not create impartial juries or render trials
unfair.

       The second asserted problem with allowing predeliberation discussions is that
“jurors might form premature conclusions without having heard the final arguments of
both sides” or the court’s final instructions on the law they are to apply to the facts of the
case.22 Again, individual jurors can just as easily reach premature conclusions in cases in
which predeliberation discussions are prohibited. Jurors can also reach premature
conclusions that favor a defendant just as easily as they can reach premature conclusions
about a defendant’s guilt.23 Moreover, to reduce the effects of not having the final
instructions on the law, the jurors in the instant case were given binders with some of the
pertinent instructions at the beginning of the trial.

       Third, opponents of predeliberation discussions argue that predeliberation
discussions create partiality and render the trial unfair because “once a juror declares
himself before his fellow jurors he is likely to stand by his opinion even if contradicted
by subsequent evidence.”24 Again, this position is not based on anything more than a
supposition about human behavior. Even if this were a valid assumption, the trial judge
here gave repeated, emphatic, and clear instructions to the jurors to keep an open mind
during predeliberation discussions. I believe that we should presume that the jurors
followed those instructions just as we presume that they follow other instructions.25 If

21
  In one study, jurors who were allowed to engage in predeliberation discussions “were
no more likely to favor the testimony presented at the beginning of the trial . . . than they
were to favor what they heard immediately at the end of trial before deliberations . . . .”
Anderson, 174 Mil L R at 117-118; see also id. at 115.
22
     Kerpan, 508 Pa at 422-423.
23
  When reviewing the constitutionality of 6-person juries in Williams, the Supreme Court
of the United States relied on studies to conclude that the advantage of having a slightly
smaller jury “might just as easily belong to the State” as to the defendant. Williams, 399
US at 101.
24
     Kerpan, 508 Pa at 422.
25
     People v Graves, 458 Mich 476, 486 (1998).
                                                                                              6

jurors are told that predeliberation discussions are tentative, then a juror’s personal
embarrassment of retreating from an earlier stated opinion is significantly curbed.
Interestingly, contrary to the assumption that jurors might become fixed in an early
impression of the case, studies suggest that jurors allowed to engage in predeliberation
discussions change their mind just as often as those who do not engage in predeliberation
discussions.26

       A fourth argument in opposition to predeliberation discussions is that “the
defendant is entitled to have his case considered by the jury as a whole, not by separate
groups or cliques that might be formed within the jury prior to the conclusion of the
case.”27 Again, when, as in this case, the trial judge gives repeated, emphatic, and clear
instructions that the jury may only discuss the case when all jurors are present and
participating, we should presume that the jurors followed that instruction.28 Admittedly,
there is some evidence that jurors allowed to engage in predeliberation discussions have
disobeyed instructions to only engage in discussions when all jurors were present.29
However, jurors who are willing to disobey the instruction to not engage in
predeliberation discussions without all the jurors present are just as likely to disobey a
judge’s instruction not to engage in predeliberation discussions at all. The fact that some
juries may discuss the case without all members present also does not necessarily deprive
defendants of the right to a fair trial or make juries impartial because it is the type of error
that could benefit the defendant just as easily as it could benefit the prosecution.

       The final argument against allowing predeliberation discussions is that such a
practice allows alternate jurors to exert undue influence on the 12 people actually charged
with reaching a verdict. As with the other criticisms, there is no claim or evidence that
the practice leads to a prejudiced or biased jury or that it somehow makes the trial
fundamentally unfair. Allowing alternate jurors to participate in predeliberation
discussions does not benefit one side more than the other and thus does not render the
jury impartial. Since this argument fails to demonstrate how allowing predeliberation
discussions undercuts the basic purpose of a jury, it is unpersuasive.

       Because I see no real evidence that generally allowing the jurors to engage in
predeliberation discussions will render a defendant’s trial unfair or render the jurors
impartial, and defendant here does no more than recite the unsupported assertions that


26
     Anderson, 174 Mil L R at 115.
27
     Kerpan, 508 Pa at 422.
28
     People v Abraham, 256 Mich App 265, 279 (2003).
29
     Anderson, 174 Mil L R at 117.
                                                                                          7

predeliberation discussions are a bad idea, I concur in this Court’s order denying
defendant’s application for leave to appeal the Court of Appeals’ decision.

        Our decision to deny defendant’s application for leave to appeal the Court of
Appeals’ decision does not ignore or overrule precedent. Justice HATHAWAY claims in
her dissenting statement that our decision fails to adhere to “precedent” set forth in
People v Hunter.30 However, this Court’s discussion of predeliberation juror discussions
in Hunter was clearly nonbinding obiter dictum. “Obiter dicta are not binding precedent.
Instead, they are statements that are unnecessary to determine the case at hand and, thus,
lack the force of an adjudication.”31 In Hunter, this Court held that the circuit court’s
instruction to the jury regarding self-defense was erroneous and “sufficiently prejudicial
in our view to require reversal and remand . . . .”32 After so holding, this Court
“deem[ed] it appropriate to comment on 1 other aspect of this case,” specifically, the
circuit court’s instruction to the jury at the beginning of the trial allowing the jurors to
discuss the evidence among themselves throughout the course of the trial.33 Because this
Court had previously held that the self-defense instruction was sufficiently prejudicial to
require reversal of the defendant’s conviction, any “comment”34 on the instruction
allowing jurors to discuss the evidence throughout trial was obiter dictum and not
“nationally accepted precedent” as Justice HATHAWAY claims. We are not bound to
adhere to statements in Hunter suggesting “juries should be directed by the court [to not
engage in discussions about the evidence] until ready to deliberate upon their verdict at
the conclusion of the trial.”35 Accordingly, Hunter does not control the outcome of this
case, and for the reasons previously set forth, allowing jurors to engage in predeliberation
discussions in this case did not violate defendant’s right to due process of law.

           MARILYN KELLY, J. (dissenting).

       I believe that allowing the jurors to discuss the evidence before deliberations
began violated defendant’s Sixth Amendment right to a fair trial and an impartial jury.
For that reason I respectfully dissent.

30
     People v Hunter, 370 Mich 262 (1963).
31
  People v Peltola, 489 Mich 174, 190 n 32 (2011) (quotation marks and citation
omitted).
32
     Hunter, 370 Mich at 269.
33
     Id.
34
     Id.
35
     Id.
                                                                                          8


        This is a criminal matter. Defendant was jury convicted of carjacking and felony-
firearm. When delivering preliminary instructions to the jury, the circuit court judge
announced that his court was part of a pilot project to test proposed changes in the way
jury trials were conducted.36 The judge explained that, contrary to past practices, the
jurors would be permitted to discuss the evidence among themselves when in the jury
room with all jurors present. He further instructed them that it was important to
remember that any discussion was tentative until they had heard all the evidence, court
instructions, and attorneys’ arguments.

       The rule against allowing jurors to discuss the evidence before deliberation is
deeply rooted in our jurisprudence. And as with many traditions, the rule has a purpose.
It serves to ensure that an accused receives a fair trial with an impartial jury. Twenty-six
states and the federal court system have statutes or court rules that explicitly bar
predeliberation jury discussions in criminal cases or do so by caselaw.37


36
  Administrative Order Number 2008-2 authorized certain Michigan judges to participate
in a pilot project to study the effects of proposed jury reforms. See 482 Mich 1xxxix.
Those reforms included proposed changes to MCR 2.513(K), which pertains to jury
deliberation. The pilot version, which was not adopted for use in criminal jury trials, see
489 Mich ___, provided that judges may inform jurors that they may discuss evidence
among themselves during trial recesses, 482 Mich at xcvii. I opposed this inclusion then,
482 Mich at cix, as I do now.
37
  Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Idaho, Illinois,
Iowa, Kansas, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, North
Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Utah, Wisconsin,
Wyoming. Alas R Crim P 27(c)(1); Ariz R Civ P 39(f) (permitting discussion in civil
cases but allowing court to prohibit it for good cause); Ark Code Ann 16-64-117 and 16-
89-118; Cal Civ Proc Code 611; People v Flockhart, __ P3d ___; 2009 WL 4981910
(Colo App, 2009), cert gtd ___ P3d __; 2011 WL 597016 (Colo, 2011); State v
Washington, 182 Conn 419, 429 (1980); Fla Stat 918.06; Idaho R Civ P 47(n); State v
McLeskey, 138 Idaho 691, 697 (2003); Illinois Sup Ct R 436(b)(3); Iowa Ct R 1.927(1)
and 2.19(5)(d); Kan Stat Ann 60-248; Kan Crim Pattern JI 3d 101.02; Jones-Harris v
State, 179 Md App 72, 88 (2008); Kelly v Foxboro Realty Assoc, LLC, 454 Mass 306,
313 n 17 (2009); MCR 2.513(K); Mo Rev Stat 494.495; Mont Code Ann 25-7-402 and
46-16-501; Neb Rev Stat 25-1110; ND R Ct 6.11; Okla Stat tit 12, § 581; Okla Stat tit 22,
§ 854; Or R Civ P 58(C); Commonwealth v Kerpan, 508 Pa 418, 422-423 (1985); State v
McGuire, 272 SC 547, 551-552 (1979); Tex R Civ P 284; Utah R Crim P 17(k); Utah R
Civ P 47(l); Wis Stat 805.13(2)(b) and 972.01; Wyo Stat Ann 1-11-208 and 7-11-206(c);
see also United States v Jadlowe, 628 F3d 1, 16-17 (CA 1, 2010).
                                                                                          9

       As was pointed out in Winebrenner v United States,38 allowing jurors to discuss
the evidence during the presentation of a criminal case is inherently risky given the
foibles of human nature. Jurors may draw conclusions without hearing all the evidence
and without all needed instructions from the court.39 The result is that the burden of
proof is improperly shifted to the accused.

        In our system, a person accused of a crime is innocent until proved guilty.40 The
burden remains on the prosecution to prove beyond a reasonable doubt that the accused is
guilty, and the accused need not present evidence of his or her innocence. If jurors have
decided the case for the prosecution before the accused has had the opportunity to present
evidence, the burden has effectively shifted to the accused to change the jurors’ minds.
In my opinion, this violates the accused person’s constitutional rights. No instruction to
the jurors to correct the violation, however artfully contrived, can overcome this obstacle.

       I believe that the instructions given to the jury could not overcome the
Constitutional violation that occurred in this case. For that reason, I do not find
compelling the prosecution’s and the concurrence’s reliance on the article by Anderson,
Let jurors talk: Authorizing pre-deliberation discussion of the evidence during trial.41

        First, Anderson recommends changes to the procedures used in federal military
trials. In his summary, he states:

                  From a military law standpoint, no constitutional, statutory,
           regulatory, or case-made rules are an impediment to authorizing pre-
           deliberation discussions among jurors. In addition, because the Sixth
           Amendment right to a trial by jury does not apply to the military, the
           precedential value of Winebrenner and its progeny to courts-martial
           practice is, arguably, nil.[42]
Earlier in the article, Anderson dismisses the concerns in Winebrenner by stating that
cautionary instructions can overcome any rights violations.43 However, the fact that he
then states that the Sixth Amendment does not apply to the military courts illustrates that
the answer is not so clear for nonmilitary courts.
38
     Winebrenner v United States, 147 F2d 322, 327-329 (CA 8, 1945).
39
     Id. at 328; see also People v Hunter, 370 Mich 262 (1963).
40
     Coffin v United States, 156 US 432, 453, 458-459 (1895).
41
     174 Mil L R 92 (2002).
42
     Id. at 121.
43
     Id.
                                                                                            10


       Second, Anderson discusses the jury reform projects in Arizona, California,
Washington, D.C., and Colorado.44 While it is correct that the Arizona reviewing
committee did recommend that predeliberation discussions be allowed in both civil and
criminal cases, the Arizona Supreme Court declined to adopt the change for criminal
cases.45 The court expressed “‘concerns about a division among the federal courts of
appeals on the question whether permitting [predeliberation] juror discussions deprives
the defendant of the Sixth Amendment right to an impartial jury.’”46 In addition,
California and Colorado made modifications only to their civil jury procedures.47
Washington, D.C., made no formal rule changes at all.48 Despite any assertion to the
contrary, to date there is no case precedent or formal or informal rule in the Washington,
D.C., courts that permits predeliberation discussions.

       For these reasons, I believe that instructions that allow predeliberation jury
discussions in criminal cases are erroneous and the error cannot be harmless beyond a
reasonable doubt. I would reverse the judgment of the Court of Appeals and remand the
case for a new trial.

         HATHAWAY, J. (dissenting).

44
     Id. at 104–112 (2002).
45
     See id. at 106.

         As a result of the controversy over allowing predeliberation discussions in civil
trials, the Arizona judiciary authorized an experiment to evaluate the changes discussed
in Diamond, et al., Juror discussions during civil trials: Studying an Arizona innovation,
45 Ariz L R 1 (2003). Fifty civil trials and predeliberation jury discussions and
deliberations were videotaped. The study found some benefits to the discussions, such as
that they “facilitate understanding and enable jurors to correct impressions of the
evidence when it is presented.” Id. at 48. But other findings were negative. For
example, “data also showed that the jurors often violated the admonition to discuss the
case only when all of them were present in the jury room,” id. at 33, and “it is all but
impossible to determine a satisfactory answer to . . . whether the expression of early
verdict preferences in a case causes the jury to arrive at a particular verdict,” id. at 58-59.
To date Arizona does not allow predeliberation discussions in criminal trials.
46
  Anderson, 174 Mil L R at 106, quoting Dann & Logan, Jury reform: The Arizona
experience, 79 Judicature 280, 283 (1996).
47
     See id. at 108, 112.
48
     See id. at 110.
                                                                                        11


        I fully share Justice MARILYN KELLY’s concerns that allowing the jurors to discuss
the evidence before deliberations violated defendant’s Sixth Amendment right to a fair
trial and an impartial jury. I write separately to express my consternation at this Court’s
failure to adhere to the constitutionally based and nationally accepted precedent set forth
in People v Hunter,49 which has protected due process rights in criminal jury trials for
over 50 years. In Hunter, this Court unanimously held that predeliberation discussions
among jurors violate the constitutionally afforded due process right to a fair trial.50 The
justices agreed that it is “clear beyond any doubt that jurors should not be encouraged to
discuss evidence they have heard and seen during the course of trial until all of the
evidence has been introduced, the arguments to the jury made, and the jury charged by
the court . . . .”51 In so holding, Hunter recognized that “[t]here is no right more sacred
than the right to a fair trial. There is no wrong more grievous than the negation of that
right. An unfair trial adds a deadly pang to the bitterness of defeat.”52

       By allowing the Court of Appeals’ opinion to stand, this Court has rendered
Hunter meaningless without expressly overruling it. This indirect overruling of Hunter
casts aside firmly established caselaw without even a forthright acknowledgement that
the Court is abandoning precedent, let alone offering reasons for doing so.53 While the

49
     People v Hunter, 370 Mich 262 (1963).
50
  The concurring statement characterizes the holding in Hunter as dictum, and thus not
binding on this Court. I disagree. Courts of this state have followed Hunter and treated it
as binding precedent for more than 50 years. As stated by the Court of Appeals in this
case:

                Defendant correctly observes that the trial court’s instruction
         allowing the jurors to discuss the evidence during recesses is contrary to
         longstanding precedent. See People v Hunter, 370 Mich 262, 269-270; 121
         NW2d 442 (1963), and People v Blondia, 69 Mich App 554, 557-558; 245
         NW2d 130 (1976). However, the trial court was expressly authorized by
         Supreme Court Administrative Order No. 2008-2 to instruct the jurors in
         the manner that it did. [People v Richards, unpublished opinion per curiam
         of the Court of Appeals, issued October 19, 2010 (Docket No. 293285), 2.]
51
     Hunter, 370 Mich at 269.
52
     Id. at 272 (quotation marks and citations omitted).
53
   When defendant’s case was tried, the trial court was participating in a pilot project
authorized pursuant to Supreme Court Administrative Order No. 2008-2. The pilot
project was implemented on August 5, 2008, which was before I became a member of
this Court. The project ran until December 31, 2010. Among the procedures authorized
                                                                                          12

justices of this Court may have debated the proper approach to stare decisis in the past,54
it should cause considerable pause that precedent is now dealt with in such a cursory
manner.

        Furthermore, in light of today’s terse order, it is unclear whether this Court has
abandoned the constitutional rights recognized in Hunter for all future cases, or whether
the constitutional rights of accused defendants were only abandoned for purposes of the
pilot project.55 The lower courts and litigants are simply left to speculate because today’s
order provides no guidance. In either event, it is troubling that this issue is only now
being formally addressed by this Court rather than having been properly addressed at the
beginning of the pilot project. Given the significance of the rights involved, this Court
should have, at a minimum, formally addressed this issue before authorizing this pilot
project, or the project should have been limited to cases in which both parties consented
to the procedures.

        Further, the concurring statement relies on the results of this Court’s pilot project
that tested these so-called “jury reforms.” However, I am not persuaded that those results
in any way diminish the constitutional concerns shared by the overwhelming majority of
jurisdictions that have addressed this issue. Almost all jurisdictions in the country either
expressly forbid or have not adopted this procedure56 because of the clear constitutional
concerns involved. Most importantly, as acknowledged in the concurring statement, the
prohibition of predeliberation discussions among jurors has been part of the historical

by the pilot were interim deliberations in all cases, including criminal matters. Defendant
objected to the use of interim jury discussions and argued that Hunter precluded such
discussions. On appeal, the Court of Appeals acknowledged that Hunter was binding
precedent but stated that this Court, through AO 2008-2, allowed Hunter to be
disregarded for purposes of the pilot project. Unfortunately, this Court failed to offer any
acknowledgment of, or explanation for, disregarding Hunter in the order authorizing the
project.
54
     See Univ of Mich Regents v Titan Ins Co, 487 Mich 289 (2010).
55
    It remains unclear how many defendants were subject to this project. This Court
received surveys concerning approximately 100 cases conducted as part of the project.
These surveys were submitted by some, but not all of the courts that participated in the
pilot project. But regardless of the number of defendants subjected to this pilot project, it
is inappropriate to abandon constitutional rights merely to test a procedure.
56
   Twenty-six states and the federal court system have statutes or court rules that
explicitly bar predeliberation jury discussions in criminal cases. Only two states, Indiana
and Maryland, specifically authorize predeliberation discussions in criminal cases. The
balance of the states do not provide for the use of the procedure in criminal cases.
                                                                                          13

criminal jury trial system in the United States since the ratification of the Constitution.
This procedure has been embodied in our judicial system and considered a component of
a fair trial since the 1700s. Changing such a historically established procedure should at
a minimum carry a heavy burden of demonstrating why the established procedure is
wrong, and why the new procedure will serve to significantly enhance the criminal justice
system. The majority’s order today instead stands mute in its rationale.

         The concurring statement claims “there is evidence that predeliberation
discussions enhance a jury’s ability to reach a fairer and just result,” citing the statistic
from our pilot project that “91 percent of jurors who responded indicated that
predeliberation discussions helped them understand and recall evidence and that it helped
them reach a correct verdict.” But this statistic, and the reliance on it, overlooks several
important factors. First, our pilot project failed to demonstrate any objective evidence
that interim jury deliberations will result in any substantial improvement in the jury trial
system. The data from this Court’s pilot project was compiled from a mere 30 jury
trials.57 Data from 30 trials is simply inadequate to produce anything more than
anecdotal observations.

       But regardless of the number of jurors’ votes tallied, our pilot project failed to use
control groups or employ independent monitoring techniques (such as videotaping jury
sessions) to objectively evaluate the efficacy of the procedures. Among the out-of-state
studies reviewed by this Court, only one study, conducted in Arizona, used objectively
verifiable monitoring to determine the actual impact of juror interim deliberations.58
Significantly, Arizona specifically declined to include criminal matters in the project
because of the same constitutional concerns that Justice MARILYN KELLY and I have
expressed. Even when tested in the civil trials, the Arizona study concluded that the
overall impact of interim discussions was only “modest” and contained shortcomings.59
Thus, where objective testing has been implemented, it has not demonstrated any
substantial improvement in the jury system, let alone alleviated the due process concerns
at stake in criminal trials.

57
   While the pilot project collected surveys concerning approximately 100 cases, only 30
cases were reviewed by this Court. The majority of the surveys collected were from
criminal trials.
58
   The 2002 Arizona study used a control group by dividing juries into “discuss” and “no
discuss” groups and the jurors were videotaped so that objective monitoring could be
employed. See Shari S. Diamond and Neil Vidmar, Juror Discussions During Civil
Trials       <http://www.law.northwestern.edu/faculty/fulltime/diamond/papers/arizona_
civil_discussions.pdf> (accessed June 2, 2011).
59
     Id.
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        The fact that a juror feels something is helpful in reaching a verdict cannot
outweigh the constitutional rights implicated. For example, if a pilot project allowed
jurors to talk to family and friends about evidence during trial, and the vast majority of
jurors in the project concluded that consulting with family and friends was helpful in
coming to the correct decision, would that mean that courts could jettison the obvious
constitutional concerns raised by such out-of-court consultations? Certainly, speaking
with trusted family members or friends to help form conclusions and opinions is, by
human nature, a helpful and desirable way to decide matters; it is what people do
everyday and are comfortable with. But it does not logically follow that, because a
majority of jurors would find it helpful or desirable, the procedure is workable or
desirable for the criminal justice system or that it would afford a fair trial. Similarly,
simply because the vast majority of jurors might find conducting research on the Internet
throughout the trial helpful in reaching the “correct” verdict,60 it does not logically follow
that the trial would be fair or that due process concerns would be eliminated. The issue is
not whether a procedure is deemed helpful to jurors, but rather whether this historic
change in the manner in which trials are conducted significantly improves the jury trial
system, as demonstrated by objective and verifiable evidence, while maintaining the
integrity and the fundamental fairness of the trial process.

       Finally, I find no merit in the concurring statement’s suggestion that because
“there is no explicit constitutional right prohibiting jurors from discussing the case among
themselves before the matter is submitted to them for decision,” no constitutional right is
at stake. There are a multitude of historical jury trial procedures impacting fundamental
fairness in trials that are not expressly addressed in the Constitution. Following such
logic, virtually all safeguards of fairness in trials, such as not allowing jurors to conduct
research or to discuss evidence with those not on the jury, could be cast aside in favor of
juror preference.

       In sum, precluding predeliberation discussions among jurors has been an accepted
part of our criminal jury system since the time of the ratification of our Constitution.
Moreover, the established procedure is supported by thoughtful and well-




60
  Our pilot project asked jurors if interim deliberations assisted them in reaching the
“correct verdict.” I question the use of the phrase “correct verdict” because it requires a
comparative analysis. But what would the juror be comparing the “correct” verdict to?
What would an “incorrect” verdict be? The phrase presupposes that verdicts reached
without using the procedure are somehow “incorrect,” which is a supposition without
support.
                                                                                                               15

accepted reasons, and there is no objective evidence that there will be any substantial
improvement in the criminal justice trial system by abandoning it. Accordingly, I dissent.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         March 9, 2012                       _________________________________________
       t0306                                                                 Clerk
