A questioning jury

Every thinking criminal defense lawyer is, at some point every year, occupied with the idea of improving the jury trial process. Having readily concluded that the lawyer himself is not to blame and is at the peak of his abilities, the focus naturally turns to the only laymen in the room: the jurors. For once, though, the lawyer’s narcissism isn’t misplaced. The jury is, most often, the ultimate arbiter of whatever it is at dispute. Having spent thousands of hours ranting on this blog about how the system is flawed and how jurors are like black boxes and you should ELI5, I can’t pass up the opportunity to comment on something unusual that’s occurring in a high profile trial in Arizona.

Jodi Arias is someone who’s accused of doing something and for some reason the trial is getting a lot of publicity. The interesting thing, from my perspective, is the fact that Arizona seems to be a state that permits juror questioning of witnesses during criminal trials. And so Ms. Arias has spent the last few days answering over 100 questions from the jurors in her case. Much to her supposed dismay, the questions in her case seem to indicate that the jury thinks she’s full of shit.

There’s no doubt in my mind that our system is imperfect and even the jury trial itself could use improvement, but whether jurors should be permitted to ask questions of witnesses at all is a very interesting question that I’ve neglected in the past. I’ve written about proposals permitting questions, among others, and of a proposal to permit Q&A during closing arguments (which I still think is a fabulous idea), but the idea that jurors will get to ask questions of my defendant sends a shiver or two down my spine.

The initial knee-jerk negative reaction stems from the fear of losing control, as evidenced by what’s happening with Arias. Losing control of the defense and perhaps undoing some of the work done to that point and also losing control of the trial itself when jurors ask absurd questions designed solely to disclose their displeasure or incredulity.

On the other hand, the allure of knowing just what the jury is thinking and being given a limited opportunity to address or reinforce their doubts is far too tempting. I’d always want to know, rather than not. I’m the lawyer who hangs out in the courtroom after a verdict so I can talk to jurors, because I want to know why they voted one way or another, so I can learn and put it to good use next time. But that’s merely educational. Wouldn’t it be great to know what they’re thinking while the trial is going on?

This excellent article in The Jury Expert argues just that: that lawyers needs to get over their fear (and indeed they do once they’ve gone through a trial with juror question) and embrace the positives (see also the ABA’s 19 principles to improve jury practice [PDF]). Surprisingly, there is some clinical research on the impact that permitting jurors to ask questions has on trials:

Larry Heuer and Steven Penrod examined the impact of allowing jurors to take notes and ask questions in both civil and criminal trials through two experiments, one conducted in Wisconsin state courts, and the other involving both state and federal courts in 33 states. [...] They found that when jurors were allowed to ask questions, jurors felt more informed about the evidence, thought the questioning of witnesses had been thorough, and were more confident they had sufficient information to reach a verdict.

According to judges and attorneys jurors did not ask inappropriate questions, and jurors did not report being embarrassed or angry when their questions were objected to. They also found that jurors did not draw inappropriate inferences from unanswered questions. Jurors remained neutral, rather than becoming advocates, when they were allowed to ask questions, and did not rely more heavily on the answers to their own questions than the rest of the trial evidence. However, jurors, attorneys, and judges did not report increased satisfaction with the trial or verdict when jurors were able to ask questions compared to when they were not.

Attorneys in the study reported that their greatest fears regarding juror questions were not realized: information they deliberately omitted was not brought up, questions did not interfere with their trial strategy or cause them to lose command of their case, nor did they prejudice their client. After the trial, both judges and attorneys in cases where jurors were allowed to ask questions said they were more in favor of allowing jurors to ask questions than did those judges and attorneys on trials where juror questions were not permitted.

Of course, this is not a practice that should be wantonly permitted: there have to regulations on instructions, objections and what, exactly, is the standard that would permit a question to be asked. Do both parties need to consent? These are questions about implementation, not the wisdom of the practice itself.

The idea scares me because I think of the frustration mid-trial when I learn that the jury may be leaning toward convicting my client. But that eventuality exists whether I am aware of it or not. And if I am aware, I may be able to do something about it. In this instance, it might be better to kill Schroedinger’s cat.

Surprisingly, it seems Connecticut may already permit juror questions. See Spitzer v. Haims & Co., 217 Conn. 532 (1991) and see footnote 3 for the jury instruction related to juror questioning. In Spitzer, the CT Supreme Court held:

In examining this issue of first impression in our state, we note that the overwhelming majority of jurisdictions that have considered the issue conclude that, although the practice of juror questions should not be encouraged, it is within the discretion of the trial court to permit such a procedure. The principal risks articulated by the courts are that: (1) counsel may be inhibited from objecting to questions for fear of offending the jurors; People v. McAlister, 167 Cal. App.3d 633, 645, 213 Cal. Rptr. 271 (1985); (2) interruptions by jurors would disrupt courtroom decorum; Sparks v.Daniels, 343 S.W.2d 661, 667-68 (Mo. App. 1961); Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 188, 165 P. 1101 (1917); (3) questions asked by the jurors may not be relevant to the issues; State v. Howard, 320 N.C. 718, 725-26, 360 S.E.2d 790 (1987); and (4) asking questions may distort the jurors’ objectivity. People v.McAlister, supra.

In this case, however, the procedure implemented by the trial court operated to avoid most of these risks. The jurors wrote out their questions in the jury room, and the judge and attorneys reviewed them outside the presence of the jury, where the attorneys were allowed to voice their objections. This procedure avoided the risks that an attorney might decline to object for fear of offending the jury and that jurors’ questions would interrupt the court or the attorneys during the trial. Furthermore, the court instructed the jurors at the beginning of the trial that they could not draw any adverse inferences from the fact that a particular question was disallowed. Reviewing and ruling on the questions outside the presence of the jury dispelled any likelihood that an impermissible question would be asked.

For a lengthy list of cases discussing this issue, see footnote 8 of Spitzer. To see if your state permits it, see here. While Spitzer was a civil case, State v. Mejia seems to indicate that the practice would likely be extended to criminal trials as well (approving juror note-taking in criminal trials).

Has anyone out there tried it? I am willing to shed my steady habit for this and take juror questioning for a spin.

See also: Turkewitz’s blog.

10 thoughts on “A questioning jury

  1. Dan Antion

    The only jury I ever served on was in a civil case where a woman was suing the State of CT after she (claimed to have) slipped on a melted ice cream bar at a highway rest area. The questions we would have asked were ones about what seemed to be her history of falling and sustaining injuries at various places. The attorney for the State had tried to ask these questions during trial, but there were objections. The attorney tried to introduce a chart of falls and injuries into evidence, and the judge had us (jury) removed from the courtroom for over an hour. If so much legal energy is spent on controlling the message the jury hears, who would control what questions could be asked? It would seem to me that the questions most jurors would like to have answered are ones that one side or the other would like to have not answered.

    Reply
    1. Gideon Post author

      That seems about right. I think that the questions would go through the same process as if attorneys were asking them: they’d be submitted to a judge, the lawyers should have an opportunity to object, etc., and then a judge would rule whether to allow those questions.

      Did you feel as though you had to decide based on incomplete information? Was the information you lacked frustrating to you?

      Reply
  2. Nicholas Sarwark

    Colorado allows juror questions in all criminal trials. Over a sample of ~25, I’ve found that most jurors don’t ask questions of most witnesses, unless there’s a gap in the examination by the parties.

    When a juror has a question, they write it out and give it to the judge. The parties approach and have an opportunity to object based on the rules of evidence. If the question is proper, the judge asks the witness and most judges allow some follow-up by the parties. All written questions are made part of the record for appellate purposes.

    There’s no more lack of control in having a jury ask questions of your client than in having the state cross-examine, and it does provide insight into their concerns that you may be able to use in crafting your closing argument.

    Reply
    1. Gideon Post author

      It’s that “gap in examination” that gives me pause: what if the gap is a failure of the state to provide proof on an essential element? If the jury asks about it, does it clue the prosecutor in? That’s the one thing that I’m afraid of.

      Reply
      1. Dakota

        Gideon:

        As a practitioner, I understand the concern that allowing juror questions could help the state fill a gap should it have missed an essential element. If the state screws the pooch, why should they be saved by an attentive juror who actually asks the right question?

        But as a disinterested party, I’d rather this gap be filled if evidence exists that can fill the gap. And I don’t think many defense attorneys are going to be counting on prosecution screw ups to win cases. If they are counting on that, then they’re doing it wrong.

        Maybe I’m misinterpreting your argument, and if so, I apologize.

        Reply
        1. Bill Thompson

          As a 30+ career public defender in Ohio, the practical reality is that we end up trying a lot of cases where the only hope of acquittal rests with a prosecutor fumbling the ball because the client has nothing to lose; he or she is looking at a lengthy prison term whether they plead guilty or get convicted at trial. It’s also apparent that despite their supposed training and experience, not all attorneys are necessarily more savvy than the jurors who decide the cases. A juror with life experience which has fostered street smarts can sometimes have a better handle on an urban crime scenario than a lawyer lacking the experience. (We often find ourselves trying to identify these very types of jurors when our defense rests on practices or customs unique to urban life.) Given realities of our adversary system, enabling jurors to ask questions can only undermine the advantage of having counsel on either side who has managed to “out lawyer” their opponent. This practice has sporadic use here, but the trend seems to favor the increased utilization of this approach. It’s also my opinion that most judges who endorse the practice of juror interrogation do so, not in a search for the truth or justice, but instead, as elected officials, to ingratiate themselves with potential voters…

          Reply
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  4. Luther Garcia

    i have tried over 200 jury trials in Indiana. Some years ago juror questions were allowed. It has been my experience that only the defendant is asked questions.

    Reply
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