SEPARATION AND SEQUESTRATION OF

DELIBERATING JURIES IN CRIMINAL TRIALS


HON. JONATHAN LIPPMAN

CHIEF ADMINISTRATIVE JUDGE

OF THE COURTS


 

APRIL 1, 1999

TABLE OF CONTENTS

Page

I. INTRODUCTION...1

II. BACKGROUND1

III. THE LEGISLATION4

IV. THE 1997 REPORT .5

V. NEW DATA...7

A. Number of Cases in Which Juries Separated or Were Sequestered.7

B. Length of Separation and Sequestration9

C. Length of Deliberations...10

D. Objections to Separation.11

E. Mistrial Motions and Allegations of Intimidation, Tampering or
Improper Contact12

VI. COST SAVINGS13

VII. ANALYSIS AND RECOMMENDATION.16

VIII. CONCLUSION...19


I. INTRODUCTION

In 1995, the Legislature authorized a trial court presiding over a criminal jury trial, except for a trial involving a Class A felony offense or a Class B or Class C violent felony offense, to declare a temporary recess in deliberations and permit the jury to separate for a reasonable period of time before returning to court to resume deliberations. L. 1995, c. 83, § 209. In a report dated March 1, 1997, Chief Administrative Judge Jonathan Lippman analyzed the law's impact up until that date. The law was set to expire on March 31, 1997, but the Legislature subsequently extended the expiration date to June 30, 1999. L. 1997, c. 435, § 67. This report analyzes the impact of the law since the release of the Chief Administrative Judge's March 1997 report.1

II. BACKGROUND

Prior to enactment of the 1995 legislation, New York mandated sequestration of deliberating jurors in all criminal trials. Although virtually every other jurisdiction in the nation had rejected mandatory sequestration, New York continued to adhere to this ancient practice. For years, the Unified Court System had proposed legislation to abolish mandatory sequestration and provide judges with the discretion to permit juries to separate. This proposal received support in the 1994 report of The Jury Project, which concluded that "[t]he case against mandatory sequestration is overwhelming." Report of The Jury Project, p. 113 (March 31, 1994).

There were strong arguments in support of eliminating the mandatory sequestration rule. First, elimination of the rule would result in significant cost savings for the State. Estimating the average cost of sequestering a criminal jury at over $2,800 per night, the Unified Court System calculated the annual expense of jury sequestration to be approximately $3 million, covering security, lodging and meal costs.

Further, mandatory sequestration has been found to have a discouraging effect on jurors' willingness to serve, and its elimination was considered an important step in promoting jury service and making the jury experience more positive for jurors. In many counties, the very real prospect of separation from home and family contributed significantly to the low response rates to qualification questionnaires and summonses sent to prospective jurors. And for jurors who did serve, the desire to avoid overnight sequestration was thought to impact on actual deliberations, with some juries arriving at verdicts more quickly than they otherwise would to allow them to return home at the end of the day's deliberations. It was hoped that removal of this coercive effect would assure that verdicts are always carefully considered.

Finally, there was concern that the impact of mandatory sequestration on the make-up of the criminal juries was creating potential constitutional and statutory problems. As was discussed in The Jury Project report (p. 115), a disproportionate number of women seemed to be seeking excusal from service on criminal juries because they were unable to be away from home overnight due to child or elder care responsibilities. In addition, members of certain religious groups, as well as some disabled jurors requiring special assistance, frequently could not be sequestered and therefore asked to be excused from criminal juries. The excusal of disproportionate numbers of women and members of religious and other groups from service on criminal juries could give rise to challenges to convictions in criminal cases alleging that the jury array did not represent a fair cross-section of the community. See Jud. Law § 500; cf. Batson v. Kentucky, 476 U.S. 79 (1986).

In contrast to the anticipated positive impact of the legislation, some feared that the elimination of the mandatory sequestration rule would lead to a significant increase in the number of mistrials, therefore adding to the costs of jury trials. There was concern that separated jurors would both be susceptible to jury tampering and fail to return to court to continue deliberations after being allowed to go home overnight, leading to mistrials and the expense of retrials. It was also predicted that separated juries would deliberate significantly longer than sequestered juries, resulting in additional costs to the system.

III. THE LEGISLATION

In 1995, the Legislature enacted section 209 of chapter 83 of the Laws of 1995. The legislation amended section 310.10 of the Criminal Procedure Law to authorize trial courts in criminal cases, except cases involving a Class A felony or a Class B or Class C violent felony, to permit the jury to separate during deliberations. Pursuant to the legislation, at any time after the jury has been charged or has commenced deliberations, the court may declare the deliberations to be in recess and permit the jury to separate for a reasonable period of time specified by the court. Except on a weekend or holiday, the court may not permit the jury to separate for more than 24 hours. Prior to permitting the jury to separate, the court must afford the parties an opportunity to be heard on the question, on the record and outside the presence of the jury. In addition, before the recess, the court must admonish the jury in accordance with CPL § 270.40,2 and direct the jury not to resume deliberations until all jurors have reassembled in the designated place when the recess ends. CPL § 310.10(2).

The legislation applied to all criminal jury trials begun on or after July 5, 1995, and was set to expire on March 31, 1997. L. 1995, c. 83, § 362. The Legislature subsequently extended the law's expiration date to June 30, 1999. L. 1997, c. 435, § 67.

IV. THE 1997 REPORT

The Chief Administrative Judge's 1997 report analyzed the impact of the new law from its effective date of July 5, 1995 to February 14, 1997. Immediately following the law's effective date, the Office of Court Administration (OCA) devised a jury deliberation form and circulated it to trial courts throughout the State. Instructions accompanying the form explained the requirement that the form be completed by the clerk of the trial part in every criminal trial in which the jury deliberated, whether or not the jury was sequestered. When the clerk completed the deliberation form, he or she was required to submit the form to OCA, where the responses were maintained in a computer database.

Between the period July 5, 1995 and February 14, 1997, the courts submitted 4,878 jury deliberation forms to OCA. The forms revealed that, during this period, juries actually separated during deliberations in 688 cases.3Of those cases, the court permitted separation in its discretion under CPL § 310.10 in 598 cases; in the remaining 90 cases, sequestration was mandated under the statute (that is, the cases involved a Class A felony or Class B or Class C violent felony), but the defendant, or in some cases both parties, consented to separation.4 The court sequestered the jury in 849 cases. Of those cases, sequestration was mandatory under the statute in 761 cases; in the remaining 88 cases, separation was permitted under the statute but the court nevertheless ordered sequestration. In the cases in which juries separated, the total number of nights of separation was 1,089; the total number of nights of sequestration was 987. The average length of jury deliberations was 2.32 days for the separated juries and 2.16 days for the sequestered juries. An objection to jury separation was made in only 12% (86) of the cases in which juries actually separated.

Overall, $1.85 million was saved in security, lodging, meals and other costs during the period of the experiment, and over 6,000 fewer jurors were spared the burdens of sequestration. In addition, only one mistrial was granted for reasons relating to the jury's separation during deliberations; and allegations of intimidation, tampering or improper contact concerning a separated juror were made in only a single case, although the court ultimately denied the motion for mistrial in that case after finding that no prejudice had resulted.

The report concluded that the experiment was an overwhelming success. The goals of the legislation were achieved -- substantial costs were avoided, the jury experience was improved and the representativeness of jury pools increased -- with no significant new costs resulting.

V. NEW DATA

During the period between February 15, 1997 and March 1, 1999, the courts submitted 5,570 completed jury deliberation forms to OCA.5 Of this total, 5,032 were submitted by superior courts and 538 were submitted by local criminal courts. The information collected in these forms is summarized below.

A. Number of Cases in Which Juries Separated or Were Sequestered

As shown in Table 1, juries actually separated during deliberations in 935 cases. In 808 of these cases, the court permitted separation in its discretion under section 310.10; in the remaining 127 cases, sequestration was mandated under the statute -- that is, the cases involved a Class A felony or a Class B or Class C violent felony -- but the defendant (or in some cases both parties) consented to separation. Under the legislation, the court could have permitted separation in an additional 2,050 cases, but deliberations in those cases lasted only one day and the issue of separation did not arise.

TABLE 1

SEPARATION AND SEQUESTRATION

STATUTORY REQUIREMENT JURY DELIBERATIONS

 

SEPARATION PERMITTED

ONE-DAY DELIBERATION MORE THAN ONE-DAY DELIBERATION TOTAL DELIBERATIONS
SEPARATED SEQUESTERED TOTAL
2,050

808

(1069 Nights)

72

(94 Nights)

880 2,930
SEQUESTRATION REQUIRED 1,590

127

(154 Nights)

923

(1165 Nights)

1,050 2,640
TOTAL 3,640

935

(1223 Nights)

995

(1259 Nights)

1,930 5,570

Cases involving mandatory sequestration under the statute (the case included a Class A felony or Class B or Class C violent felony) constituted slightly under one-half (47%) of all cases. Juries were sequestered in 923 cases of these cases for a total of 1,165 nights. In 1,590 of the cases, deliberations did not extend beyond a single day and sequestration was not required.

Juries also were sequestered in 72 cases (for a total of 94 nights) in which sequestration was not mandatory under the statute but the courts nevertheless ordered sequestration.

B. Length of Separation and Sequestration

Table 2 provides data on the length of separation in the 935 cases in which juries actually separated. In the majority of the cases (729, or 78%), the jury was separated for one night. Throughout the State, the total number of nights of jury separation was 1,223, an average of 1.31 nights for each of the 935 separated cases.

TABLE 2

LENGTH OF SEPARATION

(Cases with More Than One Day of Deliberations)

Nights Separated Number of Cases Percent
1 729 78%
2 151 16%
3 38 4%
4 or more 17 2%
Total 935 100%

Table 3 indicates the length of sequestration in the 995 cases in which the jury was sequestered. Sequestration lasted one night in 81% of the cases, two nights in 14% of the cases and three or more nights in 5% of the cases. The total number of nights sequestered was 1,259, an average of 1.27 nights for each of the 995 sequestered cases.

TABLE 3

LENGTH OF SEQUESTRATION

(Cases With More Than One Day of Deliberations)

Nights Sequestered Number of Cases Percent
1 810 81%
2 135 14%
3 or more 50 5%
Total 995 100%

C. Length of Deliberations

Concern was expressed in light of the legislation that the elimination of mandatory sequestration in every criminal case could lead to more protracted jury deliberations, and therefore fewer savings to the State. The data does not support this conclusion. During the 1993-94 fiscal year, the average length of jury deliberations in criminal trials (superior court and local criminal court) was approximately 1.18 days.6 Since the legislation's extension in 1997, the average length of jury deliberations in such trials has not changed -- it remains 1.18 days.

Table 4 sets forth the average lengths of jury deliberations in criminal trials for juries that were either separated or sequestered (that is, the jury deliberations were not concluded within one day) since the effective date of the legislation. As shown, sequestered juries deliberated for an average of 2.26 days; separated juries deliberated only slightly longer -- an average of 2.31 days.

TABLE 4

LENGTH OF JURY DELIBERATIONS:

SEQUESTERED VS. SEPARATED CASES

Statutory Category Separated Sequestered
Separation Permitted

2.32

(808 cases)

2.32

(72 cases)

Sequestration Required

2.21

(127 cases)

2.26

(923 cases)

Total

2.31

(935 cases)

2.26

(995 cases)

D. Objections to Separation

Objections to separation were made in a total of 27 cases. Table 5 identifies the number of cases and the party objecting to separation. In five of the cases in which objections were made, deliberations lasted only one day and the question of separation or sequestration was not an issue. In two of the cases in which objections were made, the court sequestered the jury. Overall, objections to separation were made in only 20 (or 2%) of the 935 cases in which the jury actually separated during deliberations.

TABLE 5

Party Making Objection Number of Cases
Defense Only 18
Prosecutor Only 6
Prosecution and Defense 3
Total 27

E. Mistrial Motions and Allegations of Intimidation, Tampering or

Improper Contact

Of the 935 cases in which the jury actually separated, a motion for mistrial based

upon the jury's separation was made in only a single case. In no case were allegations raised that jurors were intimidated, tampered with or improperly contacted during separation. The one case in which the mistrial motion was made was a New York County prosecution for criminal sale of a controlled substance in the third degree. In that case, one of the jurors failed to appear in court at the start of the second day of jury deliberations. When the trial judge contacted the juror at home by telephone, the juror assured the court that he would be arriving in court later that morning. However, when the juror failed to appear later in the morning and then could not be reached after repeated calls to his home, the court declared a mistrial.7

VI. COST SAVINGS

One of the primary goals of the legislation has been accomplished with the achievement of substantial cost savings. In fiscal year 1993-94 -- the most recent year prior to enactment of the legislation for which jury sequestration data are available and the fiscal year upon which the projections made in the 1994 Jury Project report were based -- the total cost to sequester juries was $3.12 million. For the 1997-98 fiscal year, sequestration costs decreased by over $1.02 million to approximately $2.1 million. Discounting the increased lodging costs resulting from a new court system policy to improve the experience of sequestered jurors, the projected cost of jury sequestration for fiscal year 1998-99 is approximately $2.12 million, constituting a savings of $1.005 million over the 1993-94 fiscal year.8 Overall, the legislation has produced nearly $3.5 million in total savings since its effective date. These amounts are summarized in Table 6.

TABLE 6

JURY SEQUESTRATION COSTS

FISCAL YEAR
Savings Since July 1995
Category 1993-94 1995-96 1996-97 1997-98 1998-99
Total Cost 3,123,619 2,374,269 2,099,418 2,096,944 2,488,885 -
Savings over Fiscal 93-94 - 749,350 1,024,201 1,026,675 634,734 3,434,960
Sequestered Cases (est.) 938 725 607 608 619 -
Sequestered Nights (est.) 1,089 827 706 752 787 -
Sequestered Jurors (est.) 11,256 8,700 7,279 7,300 7,423 14,863
Jurors Spared Sequest. - 2,556 3,977 3,956 3,833 14,322

In fiscal year 1997-98, the number of sequestered nights was 752, a reduction of nearly one-third (31%) from the 1,089 nights of sequestration in fiscal year 1993-94. In fiscal year 1998-99, the number of sequestered nights is projected to be 787, a reduction of 28% since fiscal year 1993-94. Since the legislation's enactment in July 1995, over 14,000 fewer jurors have been sequestered.

Table 7 sets forth the relative costs and realized savings for security, lodging and

meals. Security, which accounts for nearly two-thirds of the cost of jury sequestration, was reduced from nearly $2.1 million in fiscal year 1993-94 to $1.27 million in fiscal year 1997- 98 and to $1.28 million in fiscal year 1998-99. The total savings in security costs since July 1995 is expected to be $3.01 million. In addition, almost $365,000 has been saved in lodging costs (which account for over one-quarter of the cost of jury sequestration), and almost $60,000 has been saved in meal costs.

TABLE 7

BREAKDOWN OF JURY SEQUESTRATION COSTS

FISCAL YEAR Savings Since July 1995
Category 1993-94 1995-96 1996-97 1997-98 1998-99
Security 2,097,414 1,525,330 1,299,751 1,271,282 1,282,405
Savings over 93-94 - 572,084 797,663 826,132 815,009 3,010,888
Lodging 800,395 644,908 598,457 611,342 982,185
Savings over 93-94 - 155,487 201,938 189,053 (181,790) 364,688
Meals 225,810 204,031 201,210 214,320 224,295
Savings over 93-94 - 21,779 24,600 11,490 1,515 59,384
Total Cost 3,123,619 2,395,158 2,099,418 2,096,944 2,488,885
Savings over 93-94 - 749,350 1,024,201 1,026,675 634,734 3,434,960

New Costs

Virtually no new costs resulted from jury separation. As discussed in Section V, the length of jury deliberations in criminal cases since enactment of the legislation (an average of 1.18 days) is no different than in fiscal year 1993-1994 (an average of 1.18 days). Accordingly, jury separation has not led to additional juror fees or other costs associated with lengthier deliberations.

VII. ANALYSIS AND RECOMMENDATION

The deliberation forms received from courts throughout the State during the period that the legislation has been in effect clearly demonstrate that the experiment permitting deliberating juries in criminal trials to separate has been successful -- the stated goals of achieving cost savings for the State, improving the jury experience and fostering more representative jury pools were all met. The predicted negative impact -- more mistrials and increased costs -- simply did not occur.

Achievements

As the data in Section VI indicates, the experiment has realized significant fiscal savings of nearly $3.5 million. Approximately $3.01 million of the total is in the area of security -- that is, a reduction in overtime for the supervision of sequestered jurors by court officers and local law enforcement personnel -- $365,000 in reduced costs for lodging of sequestered jurors, and over $60,000 for meal costs.

As important as the cost savings are for the State, perhaps the primary achievement of allowing deliberating jurors to separate is the benefits to citizens who are required to serve as jurors in criminal trials. Since enactment of the legislation, over 14,000 New Yorkers have been spared the unwanted burdens of separation from home and family. Moreover, those who simply could not be sequestered for family and religious reasons, and therefore could not participate in this most basic democratic function, were able to serve as jurors, often for the first time. This increased participation in the jury process in turn enhances the representativeness of juries, reducing the possibility for legal challenge of convictions on the ground that they do not contain a fair cross-section of the community.

No Increased Mistrials, Negative Effects or Costs

The data also clearly demonstrates that, contrary to some predictions, allowing juries to separate does not give rise to an increased number of mistrials, result in any negative effects or generate any significant new costs.

The facts in this regard are dramatic. Since enactment of the legislation, of the more than 1600 criminal trials in which juries actually separated, mistrials were granted for reasons relating to the jury's separation in only two trials -- or approximately one-tenth of one percent of the trials. Allegations of intimidation, tampering or improper contact concerning a separated juror were made in only a single case, and the court in that case ultimately denied a mistrial motion after finding that no prejudice had resulted. Moreover, objections to separation were raised in only seven percent of the cases in which the court permitted the jury to separate; since the legislation was extended in 1997, this percentage was only two percent. This strongly suggests that separation is now being met with broad acceptance among defense attorneys and prosecutors.

Nor has separation resulted in any meaningful new costs. Since enactment of the legislation, the average length of jury deliberations has not changed. Thus, separation has not led to any increase in juror fees and other costs that would arise from longer deliberations.

Recommendation

In sum, the four-year experiment has demonstrated that separation of deliberating juries in criminal trials benefits the State and its citizens, without prejudicing criminal trials or engendering any significant new costs. A compelling case has thus been made for providing permanent statutory authority for trial judges to permit separation of juries in all criminal trials (with the exception of capital cases).

The experiment's proven success has created a strong argument for affording judges the discretion to permit separation not only in the less serious criminal cases but also in cases involving the more serious offenses now excluded from the legislation. Since the legislation's enactment, deliberating juries were separated (on consent) in 217 cases involving a Class A felony or a Class B or Class C violent felony, without incident. Cases involving these more serious offenses comprise close to half of the superior court criminal trials conducted in New York each year. If the legislation were expanded to permit jury separation in these trials, the number of jury sequestrations would be limited to those cases in which trial judges determined that sequestration was necessary to safeguard the integrity of the jury's deliberations. This would result in substantially greater fiscal savings, thousands of additional jurors spared the burdens of sequestration and further improvements in the representativeness of jury pools, all without any harm to the parties.

In virtually all other jurisdictions around the nation, including the federal courts, sequestration of deliberating juries is not mandatory in trials involving these offenses. Throughout the country, and in federal courts right here in New York State using the same jurors that the State courts use, criminal prosecutions involving murder, major drug operations, organized crime and terrorism take place without mandatorily sequestered juries and without prejudice to the case. There is no legitimate reason for declining to extend this practice to the New York courts, where it has been demonstrated that separation works and works well. As innumerable jurisdictions have concluded, the determination whether sequestration is warranted should be left to the discretion of the trial judge, who is familiar with the case and its circumstances. New York's rule should be no different. Accordingly, the legislation should be expanded, on a permanent basis, to authorize separation in the trial judge's discretion in all criminal cases, with the exception of capital offenses. A copy of the Judiciary's legislative proposal implementing this recommendation is attached as Appendix B.

VIII. CONCLUSION

For all of the reasons set forth above, and on the basis of the data presented in this

report, it is recommended that trial judges be afforded permanent statutory authority to separate deliberating juries in all criminal trials, with the exception of capital cases.


1 Although the Legislature had mandated submission of the Chief Administrative Judge's initial report, see Criminal Procedure Law § 310.10(3), the Legislature did not require preparation of a second report when it extended the legislation in 1997. Nevertheless, this report has been prepared to assist the Legislature in its determination of what action to take as the June 30, 1999 expiration date approaches.

2 Section 270.40 generally requires the court to instruct the jurors that they may not discuss the case with anyone, read or listen to media accounts of the case, visit or view any premises connected to the allegations of the case, or agree to accept or discuss with anyone any compensation for supplying information about the case, and that they must promptly report to the court an attempt by anyone to improperly influence a juror.

3 The term "separation" is used herein to mean overnight separation of the jury.

4 See People v. Webb, 78 N.Y.2d 335 (1991) (notwithstanding the mandatory jury sequestration requirement, defendant may consent to separation of jury).

5 Following the issuance of the March 1, 1997 report, the jury deliberation form was expanded to collect additional information pertaining not only to jury deliberations but also to voir dire proceedings. A copy of the expanded form is attached as Appendix A.

6 Fiscal year 1993-94 is used in this comparison because it is the most recent year prior to enactment of the legislation for which "deliberation nights" statistics are available.

7 The case is not identified in this report by name or indictment number because the defendant was ultimately acquitted upon his retrial, and thus the record in this case was sealed pursuant to CPL § 160.50.

8 Lodging costs increased significantly in fiscal year 1998-99 because of a new policy to provide each sequestered juror with his or her own room. Under the new policy, lodging costs increased in fiscal year 1998-99 by over $370,000 from the prior year, boosting total sequestration costs to approximately $2.5 million. As a result, actual sequestration savings in fiscal year 1998-99 were about $635,000 over the 1993-94 fiscal year.