by The Florida Bar News
Like children of yesteryear, jurors should be seen and not heard — until it’s time to ask for their verdict at the end of the criminal trial.
Out with that old tradition, recommend members of the Jury Innovations Committee of the Florida Supreme Court’s Judicial Management Council.
The committee embraces a new attitude that elevates jurors from muted mannequins filling the jury box to engaged, curious full partners in the trial, allowed to ask witnesses questions, like the lawyers and judge.
Inviting jurors to ask questions in criminal trials is one of 48 recommendations from the committee, chaired by Third District Court of Appeal Judge Robert Shevin, who plans to represent the committee at oral arguments before the Florida Supreme Court on Feb. 4.
“The goal of this committee from the get-go was to come up with suggestions to help bring about jurors who are more educated, who can understand the facts better, who will be much more in a position of being able to reach a conclusion, who will be more accurate about the decision-making process, who will be more confident in their verdict and decision — all of these things to get them to play a more active role, so we will have jurors who have a better understanding of the importance of their responsibility,” Judge Shevin said.
“And I would say questioning by jurors is designed to do just that.”
But some would rather have jurors simply listen to witnesses and keep their thoughts to themselves.
“I absolutely hate the idea of jurors asking questions in criminal cases, because they ask the wrong questions all the time,” said Miami criminal defense attorney Michael Catalano, a member of the Florida Bar Criminal Rules Committee that is busy drafting and voting on proposed rules to address the concept.
“To me, it shifts the focus of the trial and it interferes. Good lawyers are like air-traffic controllers. On both sides, good lawyers like to control the presentation, and when jurors ask questions, it could change the focus of how we’re presenting the case.”
The real issue should be making the trial a better experience for jurors, said Palm Beach County Judge Barry Cohen, who served on the Jury Innovations Committee’s In-Court Procedures Subcommittee that dealt with the jury-asking-questions issue.
“I think jurors will perform better the more friendly they find the surroundings. To tell someone who wants to think to not ask questions or take notes seems to only make their job more difficult,” said Cohen, who teaches the jurors-may-question-witness concept to new county judges.
And 11th Circuit Judge Fredricka Smith, who chaired the subcommittee, said, “I’m very much in favor of this innovation.”
Learning from the positive experiences of Arizona, Colorado, California, and the District of Columbia, the Florida committee concluded that benefits of allowing jurors’ questions in criminal trials “strongly outweigh any potential harm.”
Judge Smith has embraced the juror-questioning option in every one of her civil trials, allowed by Florida Statutes 40.50, since Oct. 1, 1999. Yet two years later, she notes, “very few lawyers are aware of it.”
“In every case, I tell lawyers about the law and how I employ it. I’m in favor of it, and it works out well,” said Judge Smith.
As Judge Smith explains, jurors don’t just blurt out their questions. After a witness has been examined and cross-examined, it’s the jurors’ turn to write down any questions they may have, and they are submitted without signing their names. Then, at a bench conference, the lawyers argue on the admissibility of each question, and the judge rules.
Smith tells the jurors at the beginning of the trial about their right to ask questions and instructs them not to take it personally if their questions cannot be answered because of the rules of evidence. Her subcommittee has recommended that the Supreme Court address the issue of jurors asking questions in criminal trials in its rule-making authority. The committee’s report noted that instruction by the District of Columbia Jury Project could serve as a model.
“The jurors love it. I haven’t done a real survey on it, but I can tell when I tell them they can ask questions, they like it,” said Judge Smith.
For those who fear that jurors questions will bog down a trial, burden the system with delay, or cause awkward moments when lawyers’ objections about jurors’ questions are sustained — Judge Smith said that hasn’t been her experience.
“A lot depends on the personality of jurors, rather than the nature of the case. I’ve had trials where not one question was asked. And I had a case where a juror asked a zillion, million questions. Come to think of it, that juror was a lawyer.”
Losing Control
Not everyone on Judge’s Smith’s subcommittee was gung ho about opening the courtroom floor to jurors.
Harry Shorstein, fourth Judicial Circuit state attorney, cautioned that allowing questions in criminal cases could cause reversible error.
“Some people thought it was disruptive — that may be too strong a word — but it took away from the attorneys’ ability, on both sides, to direct their strategy, and questions from jurors could negatively impact on their strategy,” said Shorstein.
“Particularly in criminal trials, we are extremely concerned about the protection of our case and procedures and want to avoid reversal on appeal, as well as protect the constitutional rights of the defendant. It has the potential to inject another element of appellate review . . . To allow jurors to question throws in a third party.”
But Judge Shevin counters: “I don’t think it should be controversial with any lawyer. The reality is it will provide them with jurors who are better educated, who may ask questions about issues not fully aired. And it might convince lawyers they might perhaps want to address an issue in a mini-argument or by putting on a witness. I think it will be helpful to both sides to understand weaknesses or strengths of their case.”
The debate goes beyond whether jurors should be allowed to ask questions in criminal trials. Another big question is whether, at the beginning of trial, the judge should announce an open invitation for jurors to inquire.
The Bar’s Criminal Procedure Rules Committee voted not to encourage questions by an instruction prior to testimony.
“. . .I was unable to write a rule that would cause this instruction to be given as needed (when a juror blurts out a question), and it didn’t seem fair to have a procedure and not tell jurors about it,” Statewide Prosecutor Melanie Hines wrote to the rules committee.
A week later, after conference calls, Hines submitted a revamped proposed rule on the issue, noting: “While there remains considerable debate over ‘planting the seed’ in the preliminary instructions vs. waiting to see if the jurors try to ask questions before giving the instruction, I believe a committee note could give the judge the option of handling it either way. Because several attorneys wish to know prior to voir dire if the court is going to give the initial jury question instruction, it will be incumbent on the attorneys to raise this matter prior to jury selection.”
As part of the Criminal Procedure Rules Committee’s proposal, there is an instruction that would limit the jurors from asking questions that would break new ground: “Please also keep in mind that the purpose of the questioning is to clarify testimony or other evidence and is not to explore theories of your own.”
Good Question
David C. Miller, who has been on the criminal bench in Miami’s 11th Circuit since January, has allowed jurors to ask questions in every one of his dozen trials so far. Though there is not yet a statute or rule specifically addressing it in criminal cases, Judge Miller believes he has the authority from case law: a 1994 Florida Supreme
Court death penalty case and a 1998 Third District Court of Appeal case.
“As far as I know, I’m the only judge who does it in every criminal case,” said Judge Miller.
The questions posed by jurors in his courtroom, he said, “range from the incredibly perceptive to questions reflecting they didn’t hear something or they missed something to questions that call for explanations of law or call for an inadmissible answer.”
Judge Miller offered this example of a perceptive question that popped up during a recent trial: One juror, who wound up being the foreman, noticed that the police officers and prosecutor kept talking about the evidence of four little white boxes, each containing a bullet casing. Yet, later, when a firearms expert testified, he referred to examining only three bullet casings.
The juror had a question about that discrepancy and asked if a bullet casing was missing and whether the fourth box was empty. As it turns out, that is exactly what happened — the fourth casing had been lost, but the prosecutor chose not to explain that fact to the jury.
“I thought it was incredible. I was paying attention and didn’t notice the discrepancy myself,” Judge Miller said.
The worst question, Judge Miller said, was when a juror asked him to explain the hearsay rule.
“I told the juror that legal scholars write books on that, and there are too many exceptions to the exceptions,” said Judge Miller.
Judge Miller said he’s heard his share of criticism of his practice to invite jurors’ questions at the beginning of every criminal trial. Judges think it takes too long, he said, and they worry about lawyers who don’t like giving up control.
“Attorneys are resisting it, and you know, attorneys get to vote on bar polls and make their feelings known. Even the Dade County Bar has a policy that if you don’t get a 70 percent approval rating or above, no one is supposed to endorse you or financially support you. So, in theory, it could knock you out of the running,” Judge Miller said.
“But I’m undaunted. I’m going to keep doing it until I get reversed.”
Jurors who fill out his survey after jury duty note they appreciate the opportunity to inquire. And when Miami Herald reporter David Green wrote a story about Judge Miller’s practice to let jurors ask questions, Green said he received an avalanche of e-mails — “about 50, more than I’ve ever received on any other story, and all of them were positive.”
One came from Julie Townsend of Knoxville, Tenn., who wrote: “I applaud Judge Miller! . . . Not too long ago, I served as a juror in Tennessee. The questions asked by the attorneys left much unclear. We ended with a hung jury. If we had been able to ask questions, I think a decision could have been reached and justice served — which is, after all, the intent, is it not?”
— Reprinted with permission of
The Florida Bar News.