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Jurors in Criminal Trials Are Now Allowed to Ask Questions

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 during trials.

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.

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