The very idea of a “factually guilty” or “factually innocent” defendant assumes quite a bit.

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.

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.

I’ve had good experiences and bad experiences, and most questions submitted to the judge don’t get asked.

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.

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.”

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.

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.