Briefly
Articles in this Issue...
- ShowMeCourts.org - A New Resource for Missourians
- The Case for Allowing Jurors to Submit Written Questions
The Missouri Bar's Commission on the Independence of the Judiciary envisioned it. Then the state bar's communications department built it. Now, ShowMeCourts.org is up and running. The website is a resource for lawyers, reporters and members of the public who want to understand more about the what, where, why and who of Missouri's courts and judiciary.
ShowMeCourts.org is an addition to the growing group of websites that make the third branch of Missouri's government less of a mystery to the public. Although much of the information on ShowMeCourts.org can be found on the bar's website, www.mobar.org, or the Missouri Judiciary website, www.courts.mo.gov, additional information has been compiled and new links arranged for quick and easy access.
The website serves as a doorway into Missouri's court system. Those who click onto the site will find everything from the principles upon which the courts are built to the physical location of every courthouse in Missouri. A special section of ShowMeCourts.org even includes lesson plans for students prepared by The Missouri Bar's law-related education director.
In the months and years ahead, Missourians will be making critically important decisions about the courts and judges. Should Judge X be retained? Should the legislature allocate more money for the courts? Are judges fulfilling their constitutional responsibilities? ShowMeCourts.org can serve as a resource for anyone interested in learning the facts behind the issues. Instead of searching all over the Internet, visitors to ShowMeCourts.org can find within just minutes details about court funding, the benefits and elements of the Missouri Non-Partisan Court Plan, the role of judges, and many other pertinent facts about the courts and judiciary.
Additional resources are now being prepared and will be regularly added to the site.
by Eugene A. Lucci
Juror questioning of witnesses is neither a new nor an innovative concept in the common law and American jurisprudence. Jurors have questioned witnesses in England since the eighteenth century, and the practice has existed in America since 1825.
At common law, those charged with capital crimes were not afforded counsel unless legal issues needed debating. The judge and jury were authorized to ask questions. With the lack of counsel and few procedural and evidentiary rules, criminal trials were solely in the hands of judges. As the English court system evolved, more emphasis was placed on fair procedure. Defense counsel played an increasing role, while the role of jurors as active participants diminished. The emphasis on the quality of evidence, shaped by examination by counsel, relegated the juror to the role of passive, neutral observer.
The practice of juror questioning of witnesses in federal courts dates back as far as 1954. By allowing juror questioning, courts sought to promote clarification of acts and the discovery of truth. At least 30 states and the District of Columbia permit jurors to question witnesses. A few states prohibit the practice. Every federal circuit that has addressed the issue of juror questioning of witnesses agrees that it is a practice that should be left entirely within the court's discretion. In most military hearings, members of court-martial panels have the opportunity to question witnesses.
The first American court to address the validity of jury questioning of witnesses, in 1895, asserted that the practice was not prejudicial to either party in the suit and emphasized that it was a commendable practice since it helped the jury to "properly determine the case before them."
Originally, juror questioning was know as "juror outbursts," which gives some idea as to the formality of the procedure. If a juror had a question, the juror would simply blurt it out in open court. During the 1950s and 1960s, courts began establishing more formal procedures. The earliest case in which a court created formal procedures for juror questioning was decided in 1926.
Controlling the process
Certain procedural safeguards can reduce or eliminate the risks of jury questioning of witnesses. The demeanor of the judge and how the judge addresses the issue make the difference. The judge decides whether a witness should be asked questions posed by jurors. This applies to both civil and criminal cases. The judge should give preliminary limiting instructions about the procedure being available, what questions will be allowed, and the technical rules involved. He or she should explain that questions are not encouraged but are to be sparingly used. Jurors should be told that they are not advocates, and must remain neutral. They should also be told that they are not to draw any inference if their question is not asked, because the rules of evidence and rulings by the judge in the case will limit even the parties' questioning, and that they are not to reveal any unasked question to the other jurors.
Jurors should be told that the judge is the "gatekeeper" and determines which questions will be asked, and in what format. Juror questions should be limited to matters attested to during direct and cross-examination, and to clarifying information already presented. The questions should be of the type that a fact-finder, and not an advocate, would ask. They should be factual, not argumentative. Questions should not be asked to express views on the case or to argue with a witness. The juror questions should come only after the witness is finished testifying, but before the witness leaves the stand.
Questions should be in writing, collected by the bailiff and submitted directly to the judge, and never to the witness. Questions should not be discussed with the other jurors and should not be signed. The parties should be given the opportunity to object to the questions, outside the hearing of the jurors, and the questions should be made a part of the record. The judge, and not the attorneys or jurors, should pose the questions to the witness in a neutral, non-intimidating, non-argumentative manner. Each party should have the opportunity to further question the witness on issues raised by the juror questions. The trial court should, in its discretion, withhold juror questioning of witnesses if it will not be beneficial to the case and aid jurors in the execution of their responsibility. Juror questioning is simply an extension of the court's own power to question witnesses in accordance with the rules of procedure.
Reasons for opposition
Unpredictable testimony. Some attorneys oppose jury questioning of witnesses because they think it will upset their well-laid plans in the construction of their case and its execution. But the attorneys are not the sole arbiters of the scope and content of testimony. The judge can ask questions. And in the judge's discretion, the jury also can ask questions. In addition, live testimony is inherently unpredictable. Juror-inspired questions do not inevitably mar the careful orchestrations of trial counsel. If testimony in court were so predictable, then trial counsel would have no need for carefully-indexed and cross-referenced depositions, and all witnesses would testify via pre-recorded video. The parties do not get to "choose" what the witnesses say when they testify. Nor should they get to decide whether the jury inquires of the witness. In addition, the mere fact that testimony was elicited by a juror's question does not mean that the entire jury will not properly compare and weigh that testimony along with everything else in the trial.
Delay. Some advocates have argued that allowing jurors to submit written questions is inefficient and will result in needless interruption and delay. However, that has not been my experience. The trial is not "interrupted" or "delayed" by juror questions, any more than the trial is "interrupted" by objections from counsel, or "delayed" by requiring counsel to lay the foundation for admitting an exhibit, or by lengthy sidebar discussion. When allowed by the judge, juror questions are an integral part of the trial process. Questioning is likely to save time with improved understanding by the jurors, reduced questioning of other witnesses, and shorter jury deliberations.
Premature deliberation. Another objection has been that the very process of formulating questions invites a juror to begin deliberating before all the evidence has been submitted. But jury deliberation is far more than merely giving consideration to the evidence. Jurors necessarily give consideration to the evidence as it comes in. As individuals, they watch, listen, assess demeanor, and give private consideration to everything that happens in the courtroom. They also inevitably formulate questions in their mind about the evidence. Occasionally, in courts where juror questions are allowed, they articulate those questions to the judge, and sometimes their questions get asked and answered. Jury deliberation is the group process of formulating answers to the questions posed by the evidence and the law. In fact, group deliberations cannot take place effectively unless individual jurors already have begun to formulate questions in their minds about the evidence. When a witness answers an individual juror's questions, it helps to lay the proper foundation for effective deliberations by the jury as a group. Juror questioning of witnesses is no more indicative of a prematurely made-up mind of a juror than a judge's questioning of witnesses in a bench trial is of the judge's premature decision.
Curing confusion
If the jury is confused about the evidence, then jurors should be allowed to ask questions designed to alleviate the confusion. If, after clarifying their confusion, the jury is not persuaded, then they should decide against the party with the burden of persuasion. The idea that justice is somehow served by a confused jury that is not allowed to express its confusion and seek clarity of understanding is flat wrong. If the failure to persuade results from curable juror confusion, then the party with the burden of proof is not the only one who suffers. The entire community suffers because a miscarriage of justice has occurred. And that miscarriage of justice will undermine pubic confidence in the judicial system as disgruntled parties and lawyers and jurors all become ambassadors of cynicism. To say that the party with the burden of persuasion or proof must make its points clear or suffer the loss at trial ignores the fact that a jury may just as easily rule in favor of the opposing party (the one without the burden) if the jurors are confused about the evidence.
The burden of proof
Some say that the duty of the petit jury is to decide not what the truth is, but whether the party with the risk of non-persuasion has satisfied its burden of proof. Of course, such an artful framing of the question conflicts directly with the common experience of jurors. That is not how jurors think. In deciding whether the party with the burden of proof has met its burden, the jury also must decide what the truth is. How else can they possibly decide that the burden has been met? The "burden of proof" is the burden of proving that something is true.
In deliberations, the jury does more than merely assess the credibility of the witnesses and weigh the evidence. The jury also uses its common experience to assemble the testimony and evidence into a coherent representation of reality. Often, as a necessary precondition for deciding whether the burden of proof has been met, the jury first decides which party has presented the most coherent representation of reality - the one that best accounts for the testimony and the facts in evidence. Indeed, the closing arguments of counsel are often an effort to influence the jury in deciding which party's version of the truth best accounts for the testimony and the evidence.
It should be no surprise that an experienced advocate - whose relationship with the "search for truth" is necessarily subordinated to his duty to represent his client - would downplay the truth-seeking function of a trial judge and a petit jury in the courtroom. It serves his or her purposes to reduce the truth-seeking function of the judge and jury to the most passive role possible. For an advocate, the search for truth is helpful only to the extent that the truth is on the side of his client. And in a jury trial, the truth serves only one party at best. To quote Judge Marvin E. Frankel, "[T]ruth and victory are mutually incompatible for some considerable percentage of the attorneys trying cases at any given time."
If the "search for truth" has no place in a jury trial, then one would expect that statement to have persuasive value in a closing argument to a jury. Counsel could use a portion of closing argument to "remind" the jury that their deliberative duties have nothing to do with searching for the truth. Of course, such an argument would likely offend the sensibilities of most petit jurors who - as the bedrock of the common law - are not generally conversant with the skewed, anti-truth perspective of an advocate.
In short, jurors are naturally and commonly concerned with figuring out, based on the evidence and the testimony, what really happened. Certainly, they must do so within the structure of deciding whether the party with the burden of proof has proved his case, but the mere fact that this structure exists does not eliminate the jury's search for enough truth to decide what really happened. Juror questioning of witnesses helps the trial to be more than a mere contest of advocacy; it helps the trial to maintain a proper focus on the search for truth.
Confusion v. "reasonable doubt"
Criminal defense attorneys frequently object to jury questioning of witnesses because they think juror confusion will inure to the benefit of the defendant by creating reasonable doubt. The premise is faulty - not all juror confusion will result in an acquittal. Further, jurors are instructed on the law: reasonable doubt "is a doubt based on reason and common sense." Reasonable doubt is not a doubt based on confusion, misinformation, and ambiguity. In the conduct of the most important of a juror's own affairs, would the juror act upon confusion, misinformation, and ambiguity - or would the juror seek clarity by asking questions? The hallmark of the American trial is the pursuit of truth. Such truth - and, in the end, justice - is attainable in all cases, including criminal, only if the jury makes its decision based on reason and common sense.
The search for truth
Notwithstanding the partisan role of the advocates, and the rules protecting various rights, one of the main objects of the litigation process is still the search for truth. To the extent that a juror's question assists in the search for truth, and to the extent that the trial judge exercises his or her discretion to allow it, the juror's question should be asked.
Certainly, there are benefits of juror questioning of witnesses. Questioning facilitates juror understanding, attentiveness, and overall satisfaction, improves communications, and corrects erroneous juror beliefs. Some contend it promotes the search for truth and justice.
When a court allows jurors to pose written questions, the court is neither abolishing the common practice of muzzling jurors, nor is it adding a new practice. The court is exercising its discretion to use a centuries-old, common law procedure to enhance the truth-seeking function of the jury trial. The search for truth is central to the legitimacy of a trial's function. If the trial does not effectively develop the facts and comprehensibly present them to the fact finder, justice is serendipitous. Any concerns that jurors might become advocates for one party or another are alleviated by the role of the judge who decides whether the question should be asked, and if so, then how the question should be asked. In short, when a judge asks questions that have been submitted by a juror, it is a procedure that has historically and traditionally been committed to the sound discretion of the trial court to serve the search for truth. The fact that the question originated with a juror is less important than the fact that the judge deems the question worthy of being asked.
Eugene A. Lucci is a judge of the General Division of the Common Pleas Court in Lake County, Ohio.
The preceding article is reprinted, with permission, from the July-August 2005 issue (Vol. 89, No. 1) of Judicature, the official publication of the American Judicature Society.