Monday, January 11, 2010

Juror Notetaking and Juror Questions - Part One

By John DiMotto

In previous posts, I have discussed the very real dilemma that juror access to the internet during a trial poses to the integrity of the jury's verdict. On the one hand, everyone can appreciate the fact the the jury wants to do the right thing. In our society, we encourage people to take the initiative to get information so that whatever they do they will do so well. On the other hand, what is appropriate for the jury's consideration is determined by the trial judge. If jurors do their own research, they may be relying on totally irrelevant information. Above and beyond this fact, it is information that the attorneys and court do not get the chance to address. The trial judge is the gatekeeper of the evidence. However, the trial judge can not "gatekeep" what it is not aware of. So, what is a judge to do?

First, the use of a thorough instruction as to why jurors obtaining information deprive the parties of a fair trial and that it is the responsibility of the attorneys and the court to make sure that only evidence that is appropriate will come before them.

Second, jurors should be allowed to take notes. It will help refresh their recollections during deliberations. More on this in a subsequent post.

Third, trial judges should consider allowing jurors to submit written questions to the judge for the witnesses. When I allow juror questions, my procedure is to ask the jurors if they have any questions after the attorneys have concluded their examinations. Any questions are submitted in writing and reviewed by myself and the attorneys in my chambers. Ultimately, I decide what juror questions will be asked. I then ask the questions of the witness. Further, if I do not ask certain questions, I always attempt to give an explanation for the benefit of the juror whose questions is not being asked. In a number of trials I have done this and it is very effective. In this scenario, I remain the gatekeeper of the evidence. This procedure "clears the air" for the jurors and promotes a fair trial. In those cases where I allow juror questions, during my preliminary instructions, I give an extremely thorough instructions as to how this procedure works, why I do it and what I expect from the jurors. I have found this to be very effective in ensuring that the jury does their job right.

Some attorneys object to jurors being allowed to submit questions. They fear that the jury will take the role of advocate for one side or the other. In my experience, this fear is without merit. Jurors do not want to take over for the attorneys. They want to make the right decision and not make a mistake.

In those cases where I have allowed jurors to submit questions, the attorneys have always learned something about their case. It keeps the jurors involved in doing the right thing and causes the attorneys to be very thorough. I do give the jurors a very thorough instruction as to how the procedure will work so all the parameters are understood by the attorneys and the jurors.

In the final analysis, juror questions can reduce the temptation of jurors to seek extraneous information via the internet. More on this topic in a subsequent post.

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