by Richard Prior
Staff Writer
The object, one attorney said, is to get it right — particularly in a criminal trial.
But, others insisted, there are procedures to be followed. The way to arrive at the proper decision is to protect the adversarial system, which guides how trials are conducted.
Several states have experimented with allowing jurors to question witnesses in criminal trials. Florida is not one of them. Not yet.
The Jury Innovations Committee, a branch of the Judicial Management Council, recently proposed to the Florida Supreme Court that individual jurors should be permitted to submit questions to witnesses in criminal prosecutions.
The court passed on the request, referring it to the Criminal Procedure Rules Committee.
The Florida Legislature, which is expected to consider the change during this session, has already approved a statute that allows jurors to submit questions in civil cases.
“It’s a real complicated issue,” said State Attorney Harry Shorstein. “Some feel it has the potential of interfering with either side.”
Shorstein was a member of the committee that recommended the proposal. It was chaired by Judge Robert L. Shevin, Third District Court of Appeals in Miami, and former state attorney general.
“With all due respect to my fellow committee members,” said Shorstein, “I think sometimes there is a tendency to want to be too innovative.
“It gets into trial strategy. There may be a reason I didn’t ask that question you’re thinking of. As a prosecutor or defense attorney, you want to control the presentation of your case, and you may not want the juror to ask that particular question.
“That, to me, was the biggest objection.”
John Jolly worked in the State Attorney’s Office for 10 years under Ed Austin and for one year under Shorstein. He also served as co-ethics officer for the City.
“The courtroom is designed to be very equal and, in a sense, designed to make sure the utmost degree of fairness is meted out,” he said. “Lawyers are trained to know the law, in terms of what is admissible and what is not. Unfortunately, a juror is not trained.
“The very asking of the question and having the court say, ‘Whoa, you can’t ask that,’ may influence a jury.
“From that perspective, it has its pitfalls to the extent that a jury might make a decision based on something that would have been inadmissible in a court of law.”
Perhaps, he suggested, there’s room for compromise.
“I think there was one judge, a circuit judge, who was allowing jurors to ask questions,” he said. “He would review them to determine whether or not it was a question that could be asked. That way, you eliminate the inadmissible question or evidence or inference from asking the question.
“And, perhaps, that could alleviate some confusion.”
Criminal defense attorney William Sheppard wouldn’t alter the current procedure.
“I think it will lead to too many missteps, and that could lead to a real financial drain on the system,” he said. “You ask a question the wrong way, and it can lead to a mistrial.
“Lawyers are presumably trained not to do that.”
Maria Rogers is a criminal defense attorney who practices in Duval, Nassau and Clay counties. She didn’t hesitate before rejecting the idea.
“I don’t believe the role of the jury is to question witnesses. It is to weigh the facts and come to a decision,” she said. “That’s why we have rules of evidence and certain protocols in framing questions.
“If jurors try to do the job of lawyers and judges, they lose their impartiality and likely show favoritism. If they need to know to eliminate confusion, it’s always their option to submit a question for clarification.”
Lynn McDowell was a prosecutor and a defense attorney in Indianapolis before becoming a professor at Florida Coastal School of Law nearly two years ago.
Allowing jurors to submit questions might not be objectionable under certain circumstances, she said. But, for the most part, it’s a bad idea.
“Most states allow jurors to submit questions to the judge,” she said. “Then the judge can decide whether or not to ask the question. I think that is the preferable method.
“There is a danger of allowing jurors to directly question the witnesses. Even if the question is objectionable, it’s heard by the other jurors. I don’t like the idea.”
Paul Renner tried between 60 and 70 cases during three and a half years with the State Attorney’s Office in Broward County. He now focuses on commercial law from his office in the Blackstone Building.
“I have the view that, in any trial in any area, you’ve got to get it right,” said Renner. “You’ve got to reach the merits of the case. You should always be open to considering reforms and changes that improve the system’s ability to get it right.”
He also understands why there are objections to such an experiment.
“I understand where the families of victims are coming from,” he said. “They thought they had put some resolution behind them.
“But I want jurors who understand the facts, who understand the law when they go to deliberate. If that means permitting them to ask questions through some control mechanism, then that’s something we ought to look at.”