Wednesday, March 3, 2010

Judge - Jury Relationship: The Evidentiary Phase - Part Two

By John DiMotto
In my last post, I began a discussion on how a judge relates to the jury during the evidentiary phase of the trial. Today, I would like to discuss how "juror questions" can make a huge difference on how attorneys approach their case.
Most attorneys are opposed to "juror questions" for witnesses. They are concerned that the jury will take an advocacy posture as opposed to a fact finder posture. They are concerned that the jury will ask questions that have nothing to do with the issue/s in the case and go off on tangents that will take their focus from the task at hand. While I understand these concerns, I firmly believe that a properly instructed jury stays on task. I also believe that allowing "juror questions" gives the attorneys an insight into juror thinking and an insight as to whether they are making an effective presentation to the jury.
When I allow "juror questions," I have the jurors submit them in writing. They submit their questions anonymously. I review them with the attorneys and do give them input before I make the decision as to whether I will ask the questions of the witness. I also ensure that the attorneys get the opportunity to do follow up and they finish up the questioning before the witness is excused. I stress to the jury that I allow questions from them so jurors can get answers to questions they think they need to decide the facts in the case. I tell them that if I do not allow certain questions it is because the questions and the answers are not relevant and should not be a concern for the jury. I even try to give an explanation as to why a certain question is not being asked for the benefit of the "anonymous" juror who submitted the question. (ie. a question calls for speculation, is barred by the rules of evidence, etc,) By allowing "juror questions," the attorneys have a window into what jurors are thinking. Oftentimes, attorneys "miss the forest for the trees." By this, I mean they are so engrossed in their case that they take things for granted. They sometimes forget that while they have been living with the cases for months or years, this is the first and only time the jurors are being presented with the case.
If the trial judge fully instructs the jury on what "juror questions" allows the jury to do and what they cannot do, the jury can more easily stay on task and perform within the context of their sworn oath. Further, if the attorneys pay close attention to what questions the jury submits, they will have an insight into whether they are being effective advocates, and if not, they can address their deficiencies before it is too late.
In my next post, I will discuss the pros and cons of the rule that the jurors may not discuss the case among themselves until deliberations in the seventh and final phase of trial.

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