Wednesday, July 30, 2014

Do you think jurors should be able to pose questions to lawyers and trial witnesses?

See  - Do you think jurors should be able to pose questions to lawyers and trial witnesses?





"x x x.



Last week, the jury in a Boston corruption trial had a whopping 281 questions for lawyers and trial witnesses. Among other questions, jurors asked for a definition of "racketeering."
The Boston Globe interviewed lawyers and law professors about their thoughts on the practice of allowing juror questions during trial. One defense lawyer said she thinks it's a "dangerous step."
“In order for you to generate those questions, you have to be an advocate for one side or the other, and that’s where the problem comes in,” Rosemary Scapicchio said. “You shouldn’t want a juror to be in a position to advocate for one side or the other before all of the evidence comes in.”
This week, we'd like to ask you: Should jurors be able to pose questions to lawyers and trial witnesses? Have you ever been a part of a trial where juror questions were allowed and had a positive or negative impact?
Answer in the comments.
x x x.
Featured answer:
Posted by KBM: "In my practice, I use hierarchical and other graphics to embed information for later recall. Timelines; decision trees, org charts, Gantt charts, flowcharts and images of key documents/text. My brain works better recalling concept and factual detail stored as images rather than as just words. I suspect this is related, in no small part, to the act of creating those devices. Which is why I always have to go back to the store for whatever I forgot, when I make a shopping list. It’s just words."
Lloyd Thomas
Jul 23, 2014 4:34 PM CDT
In Arizona during Criminal Trials jurors can submit questions to the judge. I have had judges ask the jurors if they have any questions before excusing a witness.  If questions are submitted the judge reviews them with the attorneys. If there are no objections the questions are asked, either by the judge or which ever party was examining the witness.  The issue then becomes how much follow up can the parties do.
2.
AndytheLawyer
Jul 23, 2014 5:25 PM CDT
I’d prefer that prospective jurors be able to ask questions to the lawyers during voir dire.  They’d reveal as much about the jurors’ bias and IQ as their answers to the lawyers’ questions.
3.
Epaminondas T. Hadalatl
Jul 23, 2014 8:06 PM CDT
It might be OK so long as there is some procedural buffer to make sure the questions are proper and seeking admissible information. Counsel should not be placed in the position of having to object to questions from the jury in the presence of the jury, because it could create a collateral bias on the part of jurors who don’t understand there may be good reasons why some of their questions should not be asked.
4.
StephenG
Jul 24, 2014 12:12 AM CDT
There is always aa procedural buffer - counsel may object to the questions beforehand - but as a veteran of over 200 complex civil and criminal jury trials I regard juror questions as a very bad idea for several reasons.
First, it is a serious infringement on the parties’ right to order and structure their own cases. The parties have to live with the outcome, and they have a right to structure and order the presentation of proof (subject to the court’s discretion in this area) as they see fit.
Second, allowing jurors to pose what amount to cross-examination or issue questions tacitly invites jurors to step out of their role as the impartial judges of the facts into something more akin to advocacy.
Just as I prefer judges to take a less active role in the trial and act as referee and gate keeper, I think it essential that jurors stay out of the way and let the parties try their own cases.
American justice is ADVESARIAL not inquisitive in nature such as are courts in civil law countries such as Italy - where the court asks the questions.
I still think the adversarial trial system the best at protecting individual rights.
5.
Savannah Guy
Jul 24, 2014 7:52 AM CDT
I have been a trial lawyer for more years than I care to count… and I’ve also been the foreman of a Federal jury in a major criminal trial [no, I cannot fathom how I was allowed onto the jury either, presumably both sides just ran out of peremptory challenges].
Anyway, I have read the Larry Lawyer comments above about the brilliant advocate controlling the evidence presente to the passive jury, as well as how the jury shouldn’t be advocates for this/that/or the other thing.  What a load of horsefeathers!  Whatever happened to the idea that the trial is supposed to be a truth finding process? Oh, right… that got lost amidst lawyer hubris.
Well, here’s a news flash for Larry Lawyer—the trial belongs to the parties, and to the public, not you.
And guess what else, gang?  From the very get go, the jurors are in the judgment seat.  They actually see your little tricks.  Very little escapes their collective gaze.  In my trial, where I was the foreman, two of our jurors lip read what the Asst U.S. Attorney was coaching a FBI witness to say during the short break the judge took to go to the bathroom!  After that, no one was too pleased with what the FBI agent was saying.  It was clear, both from what the two jurors told us later in the jury room, as well as from the FBI agent’s referring to a written script [no, I cannot make this up!] that he was little more than a mannequin on parade.  Add that to the fact that a crucial piece of evidence got “lost” in the FBI lab, and you get the idea that the Feds didn’t look too good.
Next issue as a reality check for Larry Lawyer:  if you don’t think that jurors should “advocate” for one version of events over another, just what the heck DO you think is going on in the back room during jury deliberations?
Please… get real.
Should the jurors be allowed to ask questions?  Well, why not?  Assuming the jurors’ questions are presented to the judge beforehand, and assuming that the questions are subject to the parties’ objections, they can only serve to clarify whatever it is the jury is finding troublesome.  Would you really prefer that the jury goes back into the jury room and flips a coin?  That we just guess about this or that?  Well, if you don’t allow jury questions at all, that’s what’s going to happen.
I am grateful for my one chance to be on a criminal jury.  It was instructive and refreshing—all of our jurors tried very, very hard to do the right thing.  And, by the way, what happened in our case was a split verdict.  The U.S. Attorney had piled on a number of over-the-top charges, but had several solid counts as well.  We acquitted the defendant on the bogus nonsense and convicted him of the obviously proven charges.  The Feds were downcast… gee, they didn’t fall for our song-and-dance routine… while the defense was sad but grateful the convictions weren’t any worse.
That might even be called Justice under the circumstances, one might think.
6.
StephenG
Jul 24, 2014 8:52 AM CDT
@5,
Respectfully, I do not employ “tricks” during trials; California jurors are extremely educated and sophisticated.
I do spend hundreds of hours thinking through the order of proof, the order of witnesses, and the order of questions for maximum effectiveness.
And yes, the trial belongs to the parties, but my client pays me to win - not to “fight the good fight” or to ask aimless questions until the truth somehow emerges.
In fact I typically take my own depositions then abstract my own depositions and on top of that spend 40 to 60 hours per adverse witness preparing my cross-examination of key witnesses, which examination is informed by 35 years of experience.
This is not amateur hour and it’s not a free-for-all.
At least North of the Mason Dixon.
7.
Pacific
Jul 24, 2014 10:10 AM CDT
Some states allow this, e.g., Wisconsin.  In the Wisconsin criminal trial I observed, the defense found it helpful.  As an attorney it is easy to get the case off base or the juror may not understand the concepts.  If so, it is the attorney’s job to teach.
8.
SlipKid
Jul 24, 2014 10:12 AM CDT
@4: Agree. Jurors asking questions without a filter in the process means they would be left to their own devices in determining whether, for example, the probative value of evidence is outweighed the prejudicial effects. Jurors are not referees of process.
9.
StephenG
Jul 24, 2014 12:43 PM CDT
Unfortunately pop culture has given some members of the public the wrong impression about what it is trial lawyers do.
There are hacks in every profession, but a seasoned and effective trial lawyer is very much trying above all else to keep the case on track.
Especially in criminal cases, jurors are acutely skeptical of defense counsel.
In my former jurisdiction it was necessary to build trust and credibility with the jury very gradually. This is done by laying out very clearly your view of the evidence in opening statement and then DELIVERING on everything you promised and also by focusing on the key points and not getting bogged down in pettiness or triviality. And by never being perceived as hiding the ball.
An effective trial lawyer carefully structures her presentation in a logical and orderly way that makes a lasting impression and makes the key facts easy to grasp and to remember later.
It’s very frustrating when a judge messes with that orderly and effective presentation by taking over extensive questioning or allows the jury to do so.
Jurors can also become invested in the points raised by “their” individual questions and may give that evidence an exaggerated importance.
10.
BMF
Jul 24, 2014 12:56 PM CDT
@ 5: You’re forgetting one thing: Unless the 11th Circuit has some weird procedures in effect for criminal trials that I’m not aware of, a jury is a fact-finder only to the extent that evidence is properly before the court. The alleged “fact” that jurors were able to lip read an FBI agent’s lips as he conversed with a witness is unreliable, at best. It is also extraneous evidence that was not properly before the court because the court was apparently in recess! To put it in simple terms, this is no more reliable or admissible than a Google search for information on your cell phone during the break would be.
Had the court been properly informed that this was going on—which you as jury foreman and a court officer had an obligation to do—this proceeding would most likely have resulted in a mistrial. I don’t care how many f*cking years you had as a trial lawyer: expediency does not equal justice!
11.
BMF
Jul 24, 2014 12:58 PM CDT
FBI agent should be US Attorney above.
12.
Judgejj
Jul 25, 2014 7:23 AM CDT
I was a military judge for 24 years.  The court members (jury) are allowed to ask questions after both sides domplete their examination of the witness.  This often came as a surprise to civiian attorneys hired by an accused.  The military jurors are all employed, articulate and college educated, so the questions were usually neutral and insightful, picking up on factual issue the lawyers missed or intentionally glanced over. 
There is always concern about some question that might tank the case, but I never encounered one.  Once a juror even asked when they could question the accused (who was not going to testify.)  That simply gave me a chance to reinforce my opening instructions on burden of proof, and that the defense had no duty to offer any evidence.  Better that the question was asked in open court (and addressed by the judge) than discussed later to the accused’s detriment in the deliberation room. 
Some judges required the questions be in writing, and passed to the lawyers and perhaps discussed in a hearing out ot the presence of the jury.  That wasted a lot of time.  I accepted oral questions and clarified them orally if needed.  I ruled spontaneously if the question was clealry inappropriate, and otherwise let lawyers object (and even argue it) in front of the jury.  I explaining that it should not be held against either side as that was their duty.  Most importantly, if a question was disallowed, I always explained in plain language why.  Finally, it was always my hope that the jury would ask all of the questions I intended to ask of the witness, as there is a legitimate concern that the jury would place undue weight on a queston simply because it was asked by the judge.
13.
StephenG
Jul 25, 2014 7:54 AM CDT
@12,
“Once a juror even asked when they could question the
accused (who was not going to testify.)”
That remark alone in the presence of other jurors would require a mistrial in a civilian court as so called “Griffin error”. In fact, a defendant has a right to object to a jury instruction that he has a right not to testify as calling undue attention to his silence at trial.
That is just one example of the pitfalls posed by juror questions in civilian courts.
As to military courts, you know what they say” “Military justice is to justice as military music is to music”.
14.
Judgejj
Jul 25, 2014 8:20 AM CDT
@13 What do you think those jurors say in the deliberation room about the defendant’s silence when they are not instructed about the right to remain silent, and not to draw any inferences from the silence?
And, what prejudice compells you to denigrate a court system with which you are so obviously unfamiliar?
15.
Marion Walker
Jul 25, 2014 8:56 AM CDT
Filtered questions can be a help to any side and provide useful information about the jury’s perspective on a case. An employer’s “notice” about discriminatory remarks or actions is always at issue in employment litigation and questions from the jurors about the evidence of that notice or actions of a manager can be helpful in addressing issues or testimony with other witnesses or in closing.
16.
StephenG
Jul 25, 2014 9:18 AM CDT
1. The evidence. 
2. I was admitted to the practice of law before the California Supreme Court, the Northen District of California, the Eastern District of California, and the 9th Circuit since 1978 and I have had an extremely varied general trial practice and am also an avid reader and legal scholar and have learned a thing or two about a thing or two in my 60 years‎ about a thing or two. I have also read the book “Military Justice is to Justice as Military Music is to Music”.
But let me ask you - would you rather be tried as a criminal defendant before a state court jury of 12 or by a military tribunal?
17.
Pat. Pend.
Jul 25, 2014 9:24 AM CDT
Many years ago I was defending a patent litigation concerning a cell-based assay.  We look at the whole case in great detail and the claim is simply gobbledygook but to the extent it means anything, it is anticipated (e.g., invalid).  But the technology is complicated and the judge permits the jury to proffer questions each night for the parties’ experts to confer over and answer jointly.
One day there is a demonstrative presentation of how the process works, with a cell portrayed in one color and after a cell-surface receptor interacts with a ligand, the cell is shown with changed color to show that it now had the ligand attached.  So that night, we get a question: “does the cell really change color?” and it occurs to me that irrespective of the merits, twelve laypersons really have no idea what is happening here and we are going to lose.
Which in fact we did, although that was reversed on appeal at the Fed. Cir.
18.
J
Jul 25, 2014 10:08 AM CDT
#16: So you don’t have any experience practicing in military courts, but you read a book published in 1970? Did you also stay in a Holiday Inn Express last night?
I’ve had experience at the federal and state level, as well as in military courts. Honestly, I really like the practice of jurors asking questions in military courts. They would have sheets of paper they could write the question on, and both sides would have a chance to check a box to object, not object, or request a hearing outside the jury’s presence. It allows them to ensure they’re understanding, and also allows the attorneys to see where they’re focusing their questions.
Moreover, I’d definitely pick a military court if I were accused of a crime. The military grand jury (Article 32) offers a lot of benefits to an accused, in my experience the juries are very engaged and educated, and there are no mandatory minimums if convicted.
19.
RebeccaW
Jul 25, 2014 10:18 AM CDT
Just finished a five day civil trial. Jurors submitted 26 questions, and two follow-ons. Questions are written, counsel and judge review the questions and there is opportunity to object, then the judge reads the questions to the witness, then counsel can ask follow-on questions.  I think it’s a great system. The jurors are trying to figure out the facts, and the attorneys are too close to the case to always see what the jurors will want to know. I’ve been on a couple juries, and those juries worked hard to get it right.
20.
KellyB
Jul 25, 2014 10:23 AM CDT
In a personal injury trial we once had a jury asked, “How do you calculate general damages?” after deliberating for only an hour or two.  We, the plaintiff’s side, began celebrating in our minds as this was an incredibly tough case of liability.  Later, we found out, that the jury was jumping all around on the verdict form and not following the rules like a bunch of morons.  Defense verdict.
21.
Samson Woldemariam
Jul 25, 2014 11:25 AM CDT
No. Simply because there are going to be issues of admissibility that the Judge will have to ultimately rule on. Waste of time & resources.
22.
Judgejj
Jul 25, 2014 11:47 AM CDT
@16.  Your evidence is a collection of anecdotes written during the Vietnam War by an investigative reporter?
Thanks for laying out your background.  Impressive, but irrelevant despite your age and having learned “a thing or two,” several times.  Apparently none of “things” was learned first-hand in a U.S. Court Martial. 
My background, on the other hand involves serving as a trial judge before you even entered law school.  As I said in passing, 24 years as a military judge.  About 2,000 criminal trials, from misdemeanors to capital cases.  Over 40% litigated to verdict before a military jury.  In those cases, the cumulative acquittal rate was around 18%, well above that in most civilian jurisdictions.  I attribute that mostly to the diligence of the military juries in following the judge’s legal instructions, and perhaps being overly generous in determining what doubts were “reasonable.” 
Although it is irrelevant to this discussion, I am no longer in the military, but I’m still a judge.  As for your question, some states do not require a 12 member jury.  And I would still choose a military jury any day.
23.
J
Jul 25, 2014 11:54 AM CDT
@21: As opposed to when lawyers ask questions and there aren’t issues of admissibility?
Perhaps it’s because of my practice area (criminal), but I’ve generally been impressed with jurors at every level I’ve practiced at, even when I lose.
24.
KellyB
Jul 25, 2014 12:01 PM CDT
@23:  In my opinion, it depends on your location.  It’s harder to find a suitable jury in rural areas.
25.
BMF
Jul 25, 2014 12:55 PM CDT
@ 14: In my experience, most attorneys will give an instruction. If the attorneys fail to do so, the judges will usually give the instruction sua sponte, because of the fundamental legal concept underlying the defendant’s silence.
26.
James Pollock
Jul 25, 2014 1:39 PM CDT
I have experience as a college instructor, so perhaps I view questions differently than the practitioners here, but questions are good.  They show that the audience is engaged in what they’re seeing, but they didn’t understand something that was just presented.  Instead of going forward with the presentation anyway, you have an opportunity to correct a mistaken or missing understanding before you build any further concepts on the audience (or audience member’s) flawed foundation.
In normal proceedings, the trial lawyer examining the witness must attempt to put themselves in the shoes of the jury, and make sure the testimony is understandable in terms the jury understands.  At the same time, they have to be thinking in terms of building their own case and countering the opposition’s case.  That’s a lot of mental juggling.  It’s easy to let something get past because WE know what the witness meant when they used that term of art, and sometimes we forget that EVERYONE doesn’t necessarily know.
27.
Michigan Lawyer
Jul 25, 2014 2:38 PM CDT
My personal belief is that jurors should be able to ask questions. After all, they are the ones who will decide the case. Oftentimes, the question can help the lawyer identify areas of the case that need a little more attention (or inattention depending on which side of the aisle). With appropriate filters and safeguards (including jury instructions and admissibility rulings from the bench), questions from the jury provide insight into where the jury’s “head” is in a particular case. It speeds up the deliberation process as well. Now that I have tried cases where the jury can ask questions, I would not want it any other way.
Michigan Courts have allowed questions by the jury since 2010. I am a Plaintiff’s personal injury lawyer, and can usually get a case settled before trial. I have had 2 jury trials since the new Court Rules went into effect. The rules leave questions by the jurors up to the Judge’s discretion. Personally, I like it. The juror writes a question down and before a witness is excused, the Judge asks the jury if there are any questions. The questions are passed to the Judge, who calls the lawyers up to the bench and we all silently read them.
Unless the question is clearly inadmissible, the Judge asks the lawyers if there are any objections to the question. The question may be asked in a slightly different way to preserve non-bias. If it will be asked, the Judge reads the question to the witness, who answers. Both attorneys have a chance to follow up on the answer. Michigan also has a court rule allowing for the Judge or attorneys to provide commentary (or summary) on what a witness just said. I am totally against that and thankfully, so are most attorneys and Judges in Michigan so we don’t have to deal with that very often.
28.
Yankee
Jul 25, 2014 3:35 PM CDT
Jurors should be able to pose questions to trial witnesses, since they do, after all, sit as the finders of fact.
Although jurors should be subject to the same general limitations as the parties to the proceeding when asking questions (e.g., relevance), any question posed by the jury should persumptively be permitted.
29.
StephenG
Jul 25, 2014 4:16 PM CDT
This is getting off topic, but a blue ribbon jury of three - you might as well have the court decide the facts. Second, stricter rules of evidence in California state court vs military court favor the defense. And my acquittal rate is well above 70% thank you. Nor would I be caught dead in a Holiday Inn. Four Seasons iis more my style.
30.
Tom Youngjohn
Jul 25, 2014 9:26 PM CDT
I like the idea of anonymous questions which either side’s lawyer can answer, or can ask of their witness if they wish. Anonymity though.
31.
ColinC
Jul 26, 2014 7:27 PM CDT
@StephenG:
“Tribunal” does not have any relationship with the word “three.” You would know that if your familiarity with military justice was more than passing.
“Tribunal” derives from the Roman military structure, where a tribune, akin to a modern field or flag officer, sat in judgment over a proceeding. The term applied regardless of the number of judges.
Your misapplication of the term belies your ignorance.
32.
StephenG
Jul 27, 2014 4:14 AM CDT
“A trio of members may suffice for a Special Court-Martial proceeding” – source http://en.wikipedia.org/wiki/United_States_military_jury#Jury_composition
(I can take the time to provide an official US Military source if you insist.)
My point was, that blue ribbon tribunals, “juries”, fact-finders, or whatever nomenclature you prefer – especially tribunals of 3 – do not favor the defense in criminal litigation. One might as well agree to a court trial.
Of course there are fact-based exceptions, where, for instance the accused is highly unsympathetic and/or the defense is highly technical, and he/she is unlikely to get any sympathy from a lay-jury. However, a court trial in such instances is a low percentage desperation move.
I do have a sufficient command of the English language to know that “tribunal” does not refer to the number 3. I was alluding to the fact that in the military justice system you could wind up being judged by a tribunal of three. 
BTW, I did some additional reading of the Military Rules of Evidence, and note some additional potentially disadvantageous aspects of military justice for the defense.
Unlike in a civilian court,  any question may be objected to not only on the grounds of calling for “classified” information, but also on the grounds that the question calls for “government information” that is “harmful” to the government. So cross-examination of government prosecution witnesses and examination of defense witnesses could be potentially shut down if the answers might prove harmful or embarrassing to the military. (See Rules 505 and 506; see, generally, Manuel for Court’s Martial, United States (2012 Edition), http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf.
I have been called a lot of things sir – some of them justified – but “ignorant” I am not.
I notice the two military and/or former military commenters here so far seem a tad defensive.
I wonder why that is?
It may be links like the following, originally published by US News and World Report:
http://www.warchronicle.com/MilitaryJustice/analysis/UnequalJusticeUSNewsWorldReport.htm
33.
judgejj
Jul 27, 2014 6:44 AM CDT
You started this conversation @13 by diverging from the topic with a gratuitous attack on military justice, that had nothing to do with the question presented. 
I wonder why that is?
Your knowledge on the subject is so superficial that you believe you grasp even the nuances by researching Wikipedia. 
Yes, misdemeanor courts in the military can legally proceed with only three jurors, but that happens very infrequently, and only as a result of challenges (preemptory and for cause).  More frequently, when the number drops below 3, sufficient additional members are added so that the average special court is empanelled with at least 5 o6 six jurors.  Did Wikipedia mention that? 
I also note that California was considering non-jury trials for some categories of misdemeanors.  That might adversely impact your acquittal rate at “well above 70%, thank you.” @29.  If it is based on anything else, your local prosecutors have WAY too much money and time on their hands.
Reading rules of evidence in a vacuum also results in superficial analysis.  Like federal district courts, military courts can (and do) conduct classified trials, or classified portions of trials.  When classified information is presented by the prosecution or the defense, the classified information is presented in a classified hearing. 
I agree with @18.  You must have stayed at a Holiday Inn Express last night.
34.
StephenG
Jul 27, 2014 7:10 AM CDT
Me thinks the lady doth protest too much.
35.
StephenG
Jul 27, 2014 7:15 AM CDT
PS: Since I retired last year my acquittal rate of 78% will remain. And, the California Constitution - as well as the US Constitution - gives the right to trial by jury where incarceration may result.
36.
judgejj
Jul 27, 2014 10:43 AM CDT
When you don’t have the facts or the law, quote Wikipedia and Shakespeare @34.  Glad it worked for your clients @35.  Doubtless you crave the last word, and you may have it.
37.
StephenG
Jul 27, 2014 12:02 PM CDT
If you read my post I clearly stated that I would be happy to provide a US Military citation - which proved unnecessary because you conceded the point.
With all due respect you do sound a bit defensive. Okay, a lot defensive.
I notice that you (and the former military judge) conveniently ignored the analysis and observations set forth in the cited US News article, including conviction rates far higher than claimed in these comments, a system that allows prosecutors to hand pick court’s Marshall panelists, a double standard applied to officers vs enlisted men, the same lawyer being allowed to prosecute, then defend the same accused and other serious issues.
38.
StephenG
Jul 28, 2014 2:32 PM CDT
Just came across this news article; apparently Congress and the DOD don’t share some of the “pro military justice” opinions expressed above:
HEADLINE: Pentagon plans major review of military justice system
QUOTE: “’It’s been over 30 years since the military code of justice was reviewed. It’s simply time,” said Lt. Col. J. Todd Breasseale, a Pentagon spokesman.”
QUOTE: “’As I understand it, it will be a top-to-bottom review, which means everything is on the table,’ Fidell said. ‘I think this is part of the larger dismay that the country has been feeling about whether the system was functioning in the best way possible.’”
QUOTE: “He said the panel should address a ‘dramatic disparity’ between civilian and military defendants in their rights to appeal to the U.S. Supreme Court if convicted. Most of those convicted in military courts cannot appeal to the high court, he said, only to the military appeals court.”
http://articles.latimes.com/2014/apr/15/nation/la-na-military-justice-20140416
x x x."
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