Q&A in closing arguments

In a recent string of posts around the ‘sphere, the jury trial system has come under some scrutiny, mostly in the area of unanimous verdicts. I wrote this post, and then a few days later Volokh had these posts, which prompted Scott to write this.

That the jury trial system is imperfect has been known for ages and commentators have struggled with ways to improve it, if at all. For instance, take a look at this tantalizing teaser of an article written by the great Wigmore in 1929 (I’d love to get my hands on the rest). Here’s a more recent article on the ills plaguing the jury trial system and what can be done about it.

But as Wigmore said in that 1929 piece, the arguments against the jury trial system are either simple problems that can be remedied or are made in the absence of a better alternative. It seems, then, that we’re stuck with this system for the foreseeable future. And one can trumpet the “best legal system in the world” all we want, in some sort of mindless obeisance, but we’d all be better served if we thought of ways to improve the system, tweak it to better fulfill the goals it was established for.

Part of the problem with the jury system, from what I can tell in my limited experience, is not a problem with the system itself, but with how it is utilized. And by that I mean how the players in the system – lawyers and judges – employ the mechanisms. A lot of the common ills: complex laws, jurors voting their gut can be traced or blamed in part to the failure of the participants to understand the nature of the system.

We like to say that people are tried by a jury of their peers. Yet we lawyers treat these peers as if they were our own, not that of the defendant. The language we use is archaic, complicated and downright stupid and confusing. The format of the jury trial is usually a patchwork of testimony that may or may not be tied up in the end by lawyers depending on their level of competence. Sometimes, I watch trials with which I have no connection and marvel at the fact that jurors are able to reach verdicts of any sort at all. A juror must feel like he’s getting a quick glimpse into an intensely technical and complicated and petty world and the first instinct must be to run in the opposite direction as soon as possible. Trials are cumbersome, which only add to the desire to not participate.

The changes we must make as lawyers and judges, in the way we treat jurors and the way we treat them to the evidence in a case are perhaps best left to another, lengthier post.

The point of this one, taken from this comment, is to tweak the system a bit to give jurors additional tools in reaching the correct decision. I’m against permitting jurors to ask questions of witnesses during the pendency of the trial, because in my view it interferes with the State’s burden of proof – at least in criminal trials.

But the idea of permitting jurors to ask questions of the lawyers during closing argument – a la oral argument before an appellate bench – is an intriguing one.

It is often said that you can make or break a case in closing argument: the key piece of evidence left unexplained, the big problem with the defense untouched, leaving jurors no choice but to convict or acquit, simply because you didn’t address it. So why not take the one hour of closing arguments that most courts permit and turn 15 or 20 minutes of that into a free-flowing back and forth between the jurors and the lawyers? Let jurors ask questions about the application of the law to the evidence, explore their doubts about the meaning of evidence presented, clarify their understanding of the import of a particular piece of evidence.

After all, if we want the jurors to decide the case based on the evidence presented to them, then at least let us help them understand the evidence presented.

On the flip side, of course, a defense lawyer like myself may argue that doing so would only permit the State to fill in the gaps left by their case-in-chief and if they haven’t provided enough evidence to the jury, they should be allowed to fall on that omission. But it might also provide an opportunity for the defense lawyer to take that doubt expressed by a juror and exploit it, to drive it home and to further widen that gap in their mind.

A 15-20 minute session of questions and answers and rebuttals may help to clarify the evidence that has been presented to the jury, to focus the closing argument on the issues that the jury is truly wrestling with and it partially lift the shroud of secrecy that surrounds the jury’s decision making process.

4 thoughts on “Q&A in closing arguments

  1. Jeff Gamso

    And if the jury actually does its job properly, reaching a verdict solely on what the evidence did or did not prove, it won’t interfere with the burden of proof or (as I keep saying) the adversary system itself.

    Of course, sometimes I might wish the jury wouldn’t get clarification of how A + B = C. At other times, it would be useful to get a second crack at explaining why it is that 2 + 2 do not equal 17 (or even at why the state just didn’t prove that 2 + 2 = 4 despite the fact that it might be true).

    You’re right about the dangers of prosecutors filling in the gaps. The practice risks are real. So are the potential benefits. Systemically it seems workable. Whether it’s a good idea? That’s a different question. But it’s sure worth thinking about.

  2. Kevin

    RE: the prosecution filling in the gaps –

    From my point of view, if we allow jury Q&A, then we should get rid of the prosecutor’s rebuttal closing.

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