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.]

8 thoughts on “We the jury…have some questions

  1. Jen

    I generally favor written jury instructions going back with deliberations. In my circuit, it varies depending on the judge and I never understood why judges were opposed. (Of course, my cynical side says it’s because we don’t want jurors to actually understand the law because then they might acquit.)

    1. Gideon Post author

      I’ve found that it’s usually the other way around: if they misinterpret the law, they convict. I prefer them getting paper copies of the instructions, because that way, I can zoom in on a particular element and really drive it home and they can take that back with them and look at it.

  2. Karl Keys

    I hate written instructions as  I find it invites jurors to play advocate rather than trier of fact.  

    On the question in main, that of experimental deliberations, the Ninth Cirxuit on Tuesday in United States v. Calvin Bryan Evanston, 2011 U.S. App. LEXIS 13647 (9th Cir 7/5/2011), rendered an interesting opinion. Jury was deadlocking.  Judge inquired as to what the questions were that were causing deadlock. Judge permitted additional argument on those points.  Jury convicted panel reverses for the obvious reasons.  I’m curious to see whether the case is retried or whether we end up with additional opinions either en banc or cert. 

    Relatedly, I always try to argue in closing that questions equal doubt – that IRL we dont talk about doubt but we do talk about whether all legitimate questions have been resolved.  If a juror has any reasonable question about the prosecutions proofs or lack of proofs they have a reasonable doubt. I find that it helps clarify and sway our way where the legalese of the charge leads to unfavorable befuddlement on the only real issue in any case, whether the Government has provided sufficient proofs  to take away some mother’s son’s life or liberty.

    1. Gideon Post author

      That’s really interesting. Thanks for the tip. I’m going to go read that case.

      I also like the way you frame “questions = doubt”. I’m trying hard in each of my trials to “de-legalese-ify” my arguments to the jury and every bit helps.

      1. Jen

        Part of the Georgia instruction on reasonable doubt is:

        “After giving consideration to all the facts and circumstances of this case, if your minds are wavering, unsettled or unsatisfied, then that is a doubt of the law, and you should acquit the defendant.”

        It’s easy to put that up on a screen in closing and then talk about all the reasons why your mind should be “wavering, unsettled and unsatisfied.” Questions do equal doubt.

  3. APDinGeorgia

    I’m an APD in Georgia, in a rural circuit right outside Atlanta. I did a trial with a visiting judge recently who allowed jurors to submit questions in writing during recesses to the judge, who shared them outside the presence of the jury with both the state and the defense. We were not allowed to tell the jury the answer directly, but were advised that we could recall witnesses or go a little out of bounds on direct or cross (it worked out mainly in my favor) to answer the question.

    My coworkers were all aghast and up in arms and apparently had never seen anything like this, but frankly, it was an interesting way to get a peek at what the jury was thinking and it allowed me to ask questions on direct of my witnesses that were not 100% relevant. I knew I could venture into those areas though because the judge had already said he’d allow it as a way to answer the jury’s questions, which made my direct exams a lot more in-depth and beneficial.

    In my case it worked out well for me, but I hate to think of how it would have worked out had the questions generated good material for the State, or asked something totally inadmissible. I have no idea how the judge would have handled it–frankly, he was a bit eccentric. Overall I didn’t think it was a half-bad system though, it might be a baby-step in the right direction.

    1. Gideon Post author

      I’m becoming more and more convinced that we need to at least experiment with this, for several reasons. Primarily that juries are not the brightest in the bunch and if we can know what they’re thinking before they deliberate, we can re-calibrate our strategy or get them to focus on what’s relevant.

      I also have become a firm believer that juries should at least know what the maximum potential punishment is.

  4. Martin Budden

    “Michigan jurors will be able to pose questions to witnesses; take notes;…”

    This implies that jurors previously were not allowed to take notes. Is this indeed the case? What possible justification is there for refusing to allow a juror to take notes?


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