Daily Archives: July 9, 2011

We the jury…have some questions

The efficacy of the jury system has provided much fodder for thought here at ‘a public defender’, starting way back in 2008 when Florida proposed giving jurors the right to submit questions to be asked of witnesses, and most recently last year, in a series of posts about the need for unanimity and general ways to improve the jury system (through Q&A during closing arguments or better jury instructions).

I started out with the firm view that any active participation by jurors during a criminal trial was antithetical to the idea of the burden of proof resting squarely on the State. I have softened my stance a bit, as can be seen in the Q&A post, and now I am definitely intrigued by the prospect of a limited trial run wherein jurors can ask questions of the lawyers (but I’m still very hesitant to let jurors pose questions to witnesses).

Michigan has recently introduced some interesting changes to their rules, which have got me even more interested in this idea:

Michigan jurors will be able to pose questions to witnesses; take notes; get mid-trial commentaries from lawyers; in civil cases, discuss the evidence while the case is still in progress, and get a final summation from the judge, according to the 14-page order hammered out after a two-year test period.

Once again with the “pose questions to witnesses”. But let’s skip that for now. The “mid-trial commentaries” seem like an interesting prospect, but have a fatal flaw, especially in a criminal case. No defense attorney would avail of this. Either this “mid-trial commentary” comes before the State has rested, in which case why would a defense attorney comment on the strength of the State’s case up to that point, giving the State ideas about what witnesses they need to call, or if it’s done after the State’s case, there’s little difference between this “mid-trial commentary” and closing argument.

I suppose there might be very rare and specific cases in which the defense could utilize this commentary to set up their case-in-chief, but the risk seems far greater than the reward.

Some of the objections to the other proposals are self-evident: an impartial final summation of the facts from the judge? Talk about an appellate issue nicely wrapped in a bowtie. And frankly, jurors should always have the ability to take notes and should always receive the judge’s final instructions in writing.

I’ve never quite understood the prohibition against jurors discussing the case while evidence is still being presented. What does it prevent, exactly? Do we really believe that if they don’t talk to one another they won’t make up their minds until all the evidence has been presented? That’s naive. In fact, discussing the evidence during the presentation of the evidence may help some jurors better understand the evidence that is subsequently presented: some may have missed a key piece of evidence and thus lose context for a following witnesses testimony. It doesn’t bother me as much.

But this reiteration of the need for some sort of change in the jury system has reinforced the notion in my head that a limited period of dialogue between the jurors and the lawyers after the presentation of all evidence might greatly assist the jury in their decision-making. One of the judges who’s quoted in that Michigan article is right: jurors aren’t children. But as I’ve argued before, the best way to approach them is that they are, and what better way to do that then to let them ask you questions about your case, so you can clearly address their issues with the evidence – or lack thereof? What are the downsides to this? [See this article by Walter Olson in a 2003 issue of Reason for further thought.]