Dr. Harold J. Bursztajn, a clinical and forensic psychiatrist, is Associate Clinical Professor and Co-Director, Program in Psychiatry and the Law, Harvard Medical School at the Massachusetts Mental Health Center. Linda Stout Saunders, a former Special Judge for Concord District Court (Concord, N.H.), is President-elect of the New Hampshire Trial Lawyers Association. Archie Brodsky is co-author of The Truth About Addiction and Recovery.

Presenting complex, unfamiliar evidence to a jury in a long trial in which emotions are running high is a formidable task. Our long experience working with group dynamics in both the legal and mental health systems has led us to identify some major obstacles to achieving a just verdict under these conditions. When jurors hear a case that stretches over weeks and even months, they can become bored and resentful. People who feel bored, numb, and frightened are especially susceptible to falling back on their preconceptions and prejudices when deciding a highly emotionally charged case. Attorneys can then foment feelings of fear and helplessness about going through such an arduous process into wishes for revenge, whether against the defendant or, as perhaps in the O.J. Simpson case, against the police and white racism.

The longer people are isolated from their loved ones and their usual surroundings, the more they surround themselves mentally with familiar experiences, especially in response to complex evidence that seems threatening by virtue of its unfamiliarity. Thus, when jurors daydream or even doze off, they hear the evidence (even more than they ordinarily would) through the filter of their own memories, fantasies, and dreams. For example, DNA is unfamiliar to most people, and so is psychosis. In insanity-defense cases, jurors typically fall back on the familiar experience of being sane, and so they discount the possibility of insanity. When DNA or blood grouping evidence is introduced in a trial where racial prejudice is at issue, what jurors may find most salient is the everyday experience of being discriminated against on the basis of one's skin color or race -- that is, on the basis of one's genes or "blood."

Various reforms have been proposed in the wake of the O.J. Simpson trial. But what would they really accomplish? Should we stop sequestering juries except when clearly necessary? Yes, since sequestering intensifies the isolation that distorts reasoning. Limit the use of peremptory challenges in jury selection? That will alleviate the appearance of manipulation, but we'll still end up with jurors who are generally unfamiliar with complex evidence and who, under stress, act like any other human beings. Bar TV cameras from the courtroom? Television may exacerbate the posturing atmosphere of a trial like Simpson's, but keeping the cameras out may prevent a well-run trial from serving as a therapeutic event that reaffirms the community's sense of justice. Shorten the duration of trials? That can reduce frustration and resentment, but in complex cases considerable time may be needed to present the evidence properly.

It makes more sense to ask how that time can best be used. The most promising reforms, we believe, are those that would involve the jury not as passive, bored spectators but as active, responsible participants. In medicine, the patient's participation in a dialogue with the physician has been recognized as a valuable part of the decision-making process. What works for the individual doctor and patient becomes the heart of group psychotherapy. One model for jury involvement that we have seen work effectively is long-term therapy groups for people addicted to a variety of self-limiting or self-destructive lifestyles. These are people who have proved largely resistant to preaching about the evils of, say, alcohol. Instead, they can benefit from an interactive approach to confronting their own preconceptions.

For example, people who have been drinking heavily for years have often had their problem-solving skills atrophy through their ready resort to alcohol. To overcome this blinkered vision, the group leader engages the group in a collaborative dialogue for the purpose of problem solving. The leader addresses each individual respectfully, eliciting their prejudices without endorsing them. If someone says, "Being drunk makes me a better driver," the leader asks how that is so. The person may then explain that, if he does not drink, he becomes so preoccupied with his problems that he is distracted and overanxious behind the wheel. The leader then asks, "Is there any other way besides drinking to keep yourself from getting so preoccupied? Does anyone else have any suggestions?" In time, the group members take over more of the work of the group from the leader. They build a fund of shared experience which becomes familiar to them, so that they can draw on it for alternatives to their prior beliefs and habits.

Juries would deliberate more effectively if they, too, could draw on such shared experience in problem solving. Deliberation is a public interchange, an airing of hypotheses and conclusions in the corrective light of social reality, not just a silent consultation with one's personal beliefs, feelings, or even conscience. To deliberate, the jurors must actively engage with one another. But how can they do that if they have been sitting passively for months, as the Simpson jury did?

To set the stage for deliberation, the jury must be actively involved in the trial itself. The machinery for this involvement already exists in the practice of allowing jurors to question witnesses directly. The Federal Rules of Evidence establish the right of a federal trial judge to question witnesses, and federal and state courts have held that it is within a trial judge's discretion to permit questions from jurors. Judges in at least thirty states are soliciting written questions from jurors and posing them to witnesses after screening them with the two sides' attorneys.

For some years, legal observers have urged that this procedure be more broadly utilized. Studies by the American Judicature Society, the State Justice Institute, and other organizations have shown that allowing juror questioning keeps jurors alert, focuses their attention on relevant issues, and enhances their sense of participation and responsibility. Judges find these benefits especially clear in complex cases.

By encouraging jury involvement, the judge can help the jury move from "hot" to "cool" decision making (to use the terminology of psychologist Irving Janis). Hot decision making is driven by the passions of the moment; people grasp for instant solutions to relieve emotional pressures and conflicts among themselves. Cool decision making is fostered by openly addressing uncertainty and talking out the issues.

Trial attorneys sometimes seek to stimulate hot decision making, as when the prosecution plays on the jury's sympathy for crime victims. The problem is that both sides can play the revenge game, as in the Simpson trial, where the jury seems to have identified with the defendant as a fellow prisoner in the long trial. But when the judge refuses to yield control of the case to the attorneys and the jurors are allowed to be more than silent observers, the judge can model cool decision making by the tenor of his or her questions to witnesses as well as by guiding the jury's questions. Like the therapy group leader, the judge engages jurors in a dialogue, demonstrating by example how they can question not only witnesses, but also their own and one another's beliefs and prejudices.

When jurors are invited to ask questions, their concerns and uncertainties can be aired and addressed. Yes, sometimes there is police misconduct and even conspiracies. But what is the evidence that there was a conspiracy in this case? And if there was, would it compromise the case against this defendant? In this way, judge-led juror questioning can explore alternative ways of understanding the grains of truth around which prejudices coalesce. Although trials will never in and of themselves be therapeutic, trials in which jurors participate actively will have the potential for healing rather than exacerbating the divisions in our communities.

Copyright on this material is retained by Harold J. Bursztajn, M.D.. Permission is granted by Dr. Bursztajn to reprint this article in its entirety, including this copyright notice and the by-line, for educational purposes only. Expressed written consent from Dr. Bursztajn must be obtained before reproduction of this article for any other purpose.