Miami-Dade Circuit Judge David Miller recalls a trial where a juror asked
a defendant accused of burning his wife in a fire to bare his arms. The
suspect maintained he accidentally lit a cigarette near a gasoline can,
but a juror thought his arms would have been burned if that were true.
Miller allowed the question to be asked. The defense lawyer objected strenuously
and appealed the subsequent conviction on grounds that challenged the
juror’s question. The conviction was upheld. Miller, who has since
been transferred to civil court, was considered a maverick by allowing
jurors to ask witnesses and sometimes suspects questions.
Now, Florida judges are required to allow jurors to ask questions as part
of new, controversial rules that took effect Jan. 1. The change was a
long time coming. The rules were first passed by the Florida Legislature
in 1999 as a byproduct of a truce between Republicans bent on tort reform
and Democrats. A 22-person Jury Innovations Committee was assigned to
review every aspect of the state’s jury system and come up with
recommendations for change. But the new rules laid dormant until approved
by the Florida Supreme Court last October. The most controversial and
significant change allows jurors in civil and criminal cases to ask questions
Another substantive change permits jurors to take notes during trials.
Until now, some judges allowed it; others didn’t. There were a plethora
of other less substantive changes, such as requiring judges to nearly
always allow testimony to be read back for deliberating jurors, give final
instructions before closing arguments and give juries copies of the instructions
for use during deliberations. The Miami chapter of the Florida Association
of Criminal Defense Lawyers formally objected to the juror-questioning
provision of the changes. In comments before the Florida Supreme Court,
Miami attorneys Milton Hirsch and Brian Tannebaum of the association said
lay jurors cannot understand the intricacies of the laws of evidence.
“Permitting jurors to suggest questions to witnesses undermines the
structure of trials as much as would permitting lawyers to send notes
in to a deliberating jury suggesting appropriate topics for deliberation,”
they stated. Allowing jurors to question witnesses removes their neutral
status and turns them into advocates, taking on the role of “detective,
inquisitor, partisan.” “Neutrality goes by the boards in the
effort to ‘solve the case,’ ” stated Hirsch and Tannebaum.
“It is not the juror’s role to ‘solve the case.’
It is not the juror’s role to develop facts. It is the juror’s
role to draw inferences and reach conclusions from facts developed by
those whose role it is to develop facts.”
David O. Markus, a Miami criminal defense attorney and president of the
Miami chapter of the Federal Bar Association, said, “Allowing jurors
to ask questions is like letting New Englanders call the plays for the
Patriots. It sounds like fun, but it’s going to be a disaster.”
Added Tannebaum: “Why can’t we keep things the way they were?
We’ve had this system since the beginning of this country. This
creates an unnecessary fourth arm of the trial. It allows jurors to basically
think out loud.” Courts in other states have come down on different
sides of the issue of juror questioning, particularly in criminal case.
Courts in Minnesota, Nebraska and Texas bar juror questioning in criminal
cases. But courts in Colorado and Hawaii decided jurors could question
witnesses at the discretion of the trial judge. Some federal judges screen
jury questions and ask them aloud.
‘Chastised and cajoled’ Since he became a judge in 2000 and presided over 100 jury trials, Miller
said he has always allowed jurors to pose questions, following a Florida
Supreme Court opinion allowing it in the 1970s.
He required the questions to be submitted in writing, and they were screened
by him and lawyers on both sides. Lawyers could object at sidebars, and
Miller eliminated inadmissible questions including queries about a defendant’s
criminal history. “I was chastised, harassed and cajoled about the
issue,” Miller recalled. “The public defender appealed me
three times on the issue, and he lost three times.” Although the
questioning can lengthen trials, Miller feels it keeps jurors “awake
and tuned in more because they’ve involved.” He also believes
he has less hung juries as a result.
Now that Miller is on the civil side, he still allows questions by jurors,
but the issue does not generate as much controversy. Circuit Judge Stanford
Blake, who heads Miami-Dade’s criminal division, is not a fan of
juror questioning. “Personally I don’t like questions because
I think the attorneys know the case, they know the lawsuit,” Blake
said. “Here in criminal, we have the ‘CSI’ effect. There
are so many TV shows — ‘Bones,’ ‘Law and Order’
— where some jurors go out and play Columbo. Evidence should be
presented through the lawyers, especially in criminal cases.”
However, Blake said he had no problem with the new rule allowing jurors
to take notes and always has allowed this practice in his courtroom, provided
jurors leave their notes with the court before going home at night. Robert
Kelley, a 25-year Fort Lauderdale civil trial lawyer who operates a blog
about jurors, said he fully supports juror questioning. “It gives
jurors the opportunity to be more interactive in a trial,” he said.
“Jurors always have the best questions. As a trial lawyer I can
think up all these witness questions and then when I sit down, a juror
will ask something I didn’t even think of.” Julie Kay reports
for the National Law Journal, an ALM Media affiliate of the Daily Business Review.