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Advisory Jury

ADVISORY JURY

A jury that makes recommendations to a judge but does not render final judgment.

Advisory juries are authorized by Rule 39(c) of the Federal Rules of Civil Procedure (FRCP). This provision states that in all actions where the plaintiff does not have the right to a jury trial, the court may authorize an advisory jury if a party requests it or the judge concludes independently that it is appropriate. The "verdict" the advisory jury renders is not binding on the judge. Advisory juries are typically used when the federal government is the sole defendant in a civil lawsuit and when the claims at issue are particularly sensitive. In addition, obscenity trials sometimes employ an advisory jury to determine whether the material in question is obscene based on community standards. Because the FRCP serves as the model for state rules of procedure, most states also authorize advisory juries.

The advisory jury originated in English courts of equity, in which the chancellor (the name for an equity court judge) heard cases without a jury but had discretion to appoint a jury to advise him. In modern law a judge has great discretion in determining how much weight an advisory jury verdict will bear on a final judgment. Some judges adopt advisory jury findings unless they are clearly erroneous while other judges consider the findings an additional piece of evidence to be weighed in deciding the case.

After the government siege of the Branch Davidian compound in Waco, Texas, in 1993, an advisory jury was used in a lawsuit against the federal government filed by the survivors of the fire that ended the siege, and relatives of those who died in the fire. The survivors' wrongful death action asked for $675 million in damages. Under the federal tort claims act the survivors did not have a right to a jury trial but the federal judge concluded that an advisory jury was needed. In July 2000, the jury ruled in favor of the federal government on all counts and the judge endorsed these findings in a final judgment.

further readings

"Practice and Potential of the Advisory Jury." 1987. Harvard Law Review 100 (April).

Wisenberg, Solomon. 2000. "What the Waco Advisory Jury Did Not Hear." CNN.com: Law Center. Available online at <edition.cnn.com/2000/LAW/07/columns/fl.wisenberg.waco.07.20> (accessed August 6, 2003).

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