Juror questions.

• Author: Cherry, Paul S.
• Position: Letters - Letter to the Editor

Regarding "Jury Questions in Criminal Cases: Neutral Arbiters or Active Interrogators?" (February), jurors must never be allowed to ask questions of a witness in a criminal trial. Our system of jurisprudence is predicated on the prosecution having to prove every element of the charge beyond a reasonable doubt. A questioning juror already has that reasonable doubt, and (s)he is using the question to remove that doubt. The only purpose in asking a question is to fill in a hole in the evidence, clearly not a juror's function. In fact, there is an instruction saying that the jurors must look only to the evidence presented to decide upon their verdict. Allowing jurors to ask questions flies in the face of that instruction and the root of our jurisprudence upon which that instruction is based. Jurors want to hear the defendant testify; it's hard enough to get the jurors to accept a nontestifying defendant with neutral detachment. Let there be a not guilty verdict if the prosecution doesn't do its job of proving each element beyond a reasonable doubt. The jury must not be allowed to cure the prosecution's defect.

Allowing questions may force the defense to put on witnesses or even to present its case despite the strategy not to do so, perhaps resulting in a change of closing argument order, something very substantial to the defense. There's nothing wrong with procedures rising to the level of substantive importance. A juror's question may scuttle the defense's strategy. A judge saying that (s)he will look to every possible objection before allowing a juror's question places the defense in an unenviable position. The defense attorney should never get into an argument with the judge. Even if the discussion about the proposed question results in the judge changing his/her mind and not allowing the question, such argument is always held out of the hearing of the jury. The jury returns and is informed that the question will not be allowed. Not hearing the legal argument (and the jury should never be allowed to hear this argument) only serves to confuse the jurors. First the question is allowed; then, after "secret" argument, it is not. If the judge should not allow the question, usually no reason is given, just the result. This further confuses the jury, because there are probably other jurors who would like to hear the answer to the question. Furthermore, some other juror may try to ask the same question another way to try to get an answer.

Jurors'...