Re-direct? Re-cross? Jury?
You’re in on trial. The State has put on it’s main witness. Oops! They forgot to ask the most important question. You quietly mumble: “no cross!”, elated inside. Then a squeaky voice speaks up and asks that very question. Wait! Who said that?
If you’re in Florida, the answer very well might be: The Jury. After some “tweaks” in their jury system, Florida judges must now allow jurors to take notes and, in civil cases, ask questions of witness. In criminal trials, they will stick to their “old” practice of having jurors submit questions which the judge then decides whether they should be asked of the witness or not.
According to the article, these changes “follow a nationwide trend toward fuller participation by the citizen deciders of fact.” Huh? Where am I living? What nationwide trend? What other jurisdictions permit this?
It sounds cute, I know it does. Sensible, that does not make it. Take the really, really stupid hypothetical I opened this post with. That damn squeaky voiced juror just diluted the State’s burden of proof! What if it’s a leading question? Or calls for hearsay? Can you object? How does this work!? Permit me to say: Does Not Compute.
After the most comprehensive review ever of Florida’s jury system, a state committee decided the potential benefits “strongly outweigh” any potential harm. The committee, which included judges, attorneys and former jurors, said jurors should be treated as full partners, not bystanders, at trials.
This is the bizarro-world legal system. Juries are not “partners” (can we at least use less dumb terms?). In fact, we’ve got a perfectly good term for them already: Jurors.
Some local judges have allowed both practices for years. Circuit Judge Doug Baird, who hears civil cases in Pinellas County, is one of them.
“Actually, the juries come up with some pretty good questions,” he said.
Good for them, Judge Baird, but it’s not their damn job. You know what, why don’t we dispense with attorneys altogether and let the parties be subject to intense questioning by juries, who then retire to deliberate their verdict. Heck, why need a Judge? Or the rules of evidence? Or law schools (oh, sorry)?
There are limits, of course. Jurors can’t blurt out legally inappropriate questions such as, “Has the defendant been to prison before?” Instead, they write down their questions, hand them to a bailiff and wait as the judge and attorneys discuss whether a question is relevant to the case.
Right. So when the smart juror writes a question that the negligent prosecutor forgot to ask, what do we do then?
Terrible, terrible idea. Why must we tinker so?
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about 4 years ago
In Oregon juries are allowed questions. Questions aren’t allowed until cross is complete. The Judge reviews the questions, then brings up counsel to review. Most of the questions are rejected on relevency grounds. I personally like having the jury put questions in. The questions give me an idea of what they’re thinking and helps finalize closing argument. I haven’t seen too many damaging questions.
about 4 years ago
Let the jurors have their fun. Remember, we’re trying to get at the truth here.
about 4 years ago
I can see how this is bad for defendants, but I’m not convinced it’s bad for justice.
I’m sure it’s really cool to win one this way, but it sounds like a criminal is going free because the prosecutor goofed, not because his case was weak.
Correct me if I’m wrong, but almost anyone could remind the prosecutor to ask a question he missed, as long as he hasn’t rested his case.
I’m not saying it’s a good idea to let jurors ask questions, but I don’t understand the point of your example.
about 4 years ago
The point is the burden of proof. Yes, they may ask questions damaging to the State too – I recognize that, but we’re quite okay with convictions where the defense attorney is pretty incompetent and yet when the prosecutor forgets to ask a question – it becomes about a quest for truth.
Every “player” in this “game” has his/her own role. The jury decides based on the evidence presented to it. Why don’t we allow juries to go to crime scenes or read newspapers?
Burden of proof – the State has it and the state alone must meet it.
about 4 years ago
I agree with Gideon. How do you cross for six hours after a one jury question AFTER you have already said no cross — you are going to piss off a s—load of jurors. If the State can not prove their case as to all elements of the offense (ok, can’t prove the PFC) why should the f——n jurors get to clean up their case for them? That isn’t their job and it isn’t the f—–n judge’s job either.
Trials have nothing to do with justice, they have everything to do with whether the state has done a “good enough job” to take away a man’s liberty. Indeed, DNA testing tells us how badly we do in figuring out who done it (some studies indicate 1 in 3 suspects police think did it are excluded by DNA).
Inded, if trials were about truth we would allow without any type of bar third party confessions, polygraphs that were exculpatory, and a whole host of other “evidence.”
about 4 years ago
Trials certainly should have something to do with justice, else why have trials? And if trials aren’t intended to achieve some semblance of justice, how do we know if we’re doing them right?
If the prosecutor is aware of a piece of evidence, has it available, and it’s admissible, I still can’t see how it matters if he asks the question or a juror does. Preserving the effects of a prosecutorial memory lapse doesn’t sound like a very good argument to me.
I think a better argument is that during a trial jurors by design (1) are ignorant of the law, (2) don’t know the facts of either side of the case, and (3) have no stake in the outcome. It’s hard to imagine a group of people less qualified to elicit testimony in a trial where someone else’s money or freedom is on the line. What’s next? Allowing the jurors to call witnesses they think might be interesting?
In other words, in an adversarial trial system it is only necessary that each party to the case be allowed to present evidence. Non-parties, including the jury, have no good reason to be eliciting evidence.
Also, “fuller participation by the citizen deciders of fact” is meaningless nonsense.
about 4 years ago
Yeah, I’m still numbly outraged about this. I’d feel better about it if the jury was also allowed to ask the judge what the possible range of sanctions would be for the criminal defendant. Given the inherent discrepancies of resources when the state goes after a lone individual, let’s not pretend that the jury asking questions gets us any closer to “truth.” And the jury finding “truth,” as we all should know, often isn’t remotely related to what’s “just.”
about 4 years ago
As already noted, here in Oregon, the judge MAY alow jurors to ask questions. In my jurisdiction, there are only two judges who routinely engage in this practice.
I’ve had good experiences and bad experiences, and most questions submitted to the judge don’t get asked.
about 4 years ago
I agree with Gideon, per usual.
On another point: We seem to be confusing the terms “justice” and “truth.” Justice, whether we want to admit it, is about moral righteousness. A bunch of legislators get together and decide what should be allowed and what should not be allowed. They decide on punishments for that which is forbidden. Then we have a process for all of it. That’s justice. And very often, it has very little to do with truth.
about 4 years ago
Scoplaw, what’s the big deal here? A juror is haled into court and forced to listen to the presentations and then, in the criminal context has to decide whether to convict or not convict (with the attendant bad consequences if they get it wrong–and yes it’s bad when a guilty person goes free), and you think it a horrible thing for them to be allowed, with supervision, to ask questions.
And, by the way, this provision could help defendants too. Probably none of you here are familiar with the Dowaliby case. Basically, some guy was convicted on absolutely zero evidence of murder. Turns out that one of the key reasons the guy was convicted was that a photograph of the crime scene had what looked like part of the wall being punched out. The jurors thought that showed that the defendant had a nasty temper (of course, the damage showed nothing of the sort–it had been there before the Dowalibys had bought the home). Perhaps a juror would have asked about that. Bad example? Maybe, but my point is that if jurors can clear up misconceptions, then that may help you guys sometimes.
Actually, I am going to use the hackneyed point: “Better 100 men go free than one guilty be imprisoned . . . .” Assuming that jury-sponsored questions make trials do a better job at getting the facts right, then with better factfinding, we’d have more reliable verdicts, which would help factually innocent defendants to the detriment of the more numerous guilty ones. So, then, shouldn’t defense attorneys be in favor of this, as a whole?
And here’s another question for all:
If you had a choice: What would you like better, trying 11 cases and getting the ten guys off who did it but losing the case where the guy was actually innocent, or vice versa.
about 4 years ago
You’re asking these questions as though it’s actually possible to determine (in the vast majority of cases) whether a crime was committed and just who committed it.
The very idea of a “factually guilty” or “factually innocent” defendant assumes quite a bit.