Jury questions in criminal cases: neutral arbiters or active interrogators?

• Author: Harper, Robert Augustus

The Jury Innovations Committee (1) recently proposed to the Supreme Court of Florida that individual jurors be permitted to submit questions of witnesses in criminal prosecutions. (2) Although the Florida Legislature has enacted a statute that authorizes jury questioning in civil cases, (3) no similar statute exists authorizing the practice in criminal cases. Nevertheless, the committee, through its chair, Judge Robert L. Shevin, asked the court to implement a rule to allow jury questions in criminal cases. (4) The court, however, declined the committee's request to implement a rule and instead referred the matter to the Criminal Procedure Rules Committee. (5) This article addresses many of the issues associated with allowing the jury to submit questions to witnesses during a criminal trial.

Evolution of the Jury in the American Criminal Justice System

According to Blackstone, at common law, defendants charged with capital crimes were not afforded counsel "unless some point of law shall arise proper to be debated." (6) Both the judge and the jury were authorized to question witnesses, and "[t]here were few rules to constrain the proceedings." (7) Due to the lack of representation coupled with absence of procedural rules, criminal trials "were left in the hands of judges alone." (8)

As the English court system evolved, more emphasis was placed on a defendant's right to fair procedure, more restrictive standards of evidence, and greater independence of the litigants. (9) In turn, defense counsel played an increasing role in determining the order and manner of the presentation of witnesses and evidence during the trial; as a result, the role of jurors as active participants diminished. (10) "Accordingly, the very manner in which evidence was proffered and accepted became shaped by defense counsel through the art of cross-examination and increasing emphasis on the quality of evidence, such as the creation of the hearsay rule." (11)

When this country was founded, the drafters of the Constitution recognized the importance of the right to counsel and cemented this right into the American criminal justice system through the Sixth Amendment. "Today, the modern adversarial system retains questioning by parties, but the role of jurors has evolved from active investigators to passive, neutral observers of the testimony elicited by the advocates for the state and the defendant." (12)

Modern Trends and the Minnesota Supreme Court Decision in State v. Costello

In the past quarter-century, a debate has developed concerning whether courts should again permit jurors to ask questions of witnesses during trials. Some commentators, courts, and legal scholars have opined that jury questions can be beneficial because: 1) questions may enhance the ability of jurors to discern the truth; 2) questions may provide counsel an opportunity to better comprehend jurors' thought processes and their perception of case weaknesses; 3) questions may increase juror attentiveness at trial; and 4) empirical research suggests that jurors who are allowed to question witnesses are more satisfied with their service and more confident with their verdicts. (13) Although a majority of states allows the procedure in one form or another, "[t]he apparent prevalence of juror questioning is misleading, however, because even when allowed, the practice is rarely encouraged." (14) In fact, several states have prohibited jury questions in criminal trials. (15) Most recently, the Minnesota Supreme Court outlawed the practice. (16) The Minnesota Supreme Court was concerned that allowing juror questions in criminal cases would impact juror impartiality and would relieve the prosecution of its burden of proof.

* Issues of Juror Impartiality

To maintain juror independence and objectivity, it is a tenet of the criminal justice system that members of a jury should "postpone or suspend the final formation of ... opinion until the parties have 'had their day in court' and have presented all the information that they consider relevant in the context of adjudication." (17) "This principle is particularly important in criminal trials, in which the state presents all of its evidence first, and it is sometimes only after several days of listening to mounting evidence against a defendant that the jury may hear any exculpatory evidence." (18) Jurors are usually instructed to keep an open mind until the end of the trial. (19) "But in order to ask a question, a juror must first develop a hypothesis or, at the very least, respond to a perceived flaw in a party's presentation of the case before the time to deliberate has arrived." (20) In light of these concerns, the Minnesota Supreme Court reasoned:

To the degree jurors are encouraged to ask questions about facts and legal issues, they are encouraged to form "at least a prior tentative opinion because one cannot investigate unless one has a hypothesis about what happened in the particular criminal case." Therefore, with such encouragement, there is an increased risk that jurors will "inevitably ... draw conclusions or settle on a given legal theory before the parties have completed their presentations, and before the court has instructed the jury on the law of the case." ... Although it is impossible to guarantee that jurors will remain open-minded until the presentation of all of the evidence and instructions, passive detachment increases that probability. (21) The U.S. Court of Appeals for the Second Circuit has reached a similar conclusion:

[W]e strongly discourage [jury questions]. The most troubling concern is that the practice risks turning jurors into advocates, compromising their neutrality. It is difficult for jurors to be both active participants in the adversarial process, embroiled in the questioning of witnesses, and detached observers, passing on the credibility of the witnesses and the plausibility of the facts presented. If, perchance, jurors pose questions that are less inquiries and more commentary, they further impair their neutrality. The appropriate occasion for jurors to express skepticism is during deliberations, not during the trial. And the appropriate time to start deliberations is after the jury has heard all the evidence, the arguments of counsel and the judge's charge on the law. At the very least, jury questioning is a subliminal invitation to launch prematurely into evaluating the evidence. (22) * Issues of Relieving Prosecution of its Burden of Proof

In a criminal case, the prosecution has the burden of proving the existence of every element of the crime charged beyond a reasonable doubt. (23) "Allowing jurors to pose questions could, in some cases, elicit testimony from a witness that sufficiently proves an element of a crime, therefore relieving the state of its burden." (24) Recognizing this potential problem, the Minnesota Supreme Court explained:

The assistance provided to the prosecution by juror questioning may be direct or indirect. Juror questioning can directly assist the prosecution when ... evidence could be revealed by a juror question. Juror questioning can indirectly assist the prosecution when it simply illuminates a facet of the case that interests the jurors.... Because the practice of juror questioning can actively assist the State in meeting its burden of proof, the jurors' role may be compromised. (25) If jury questions are permitted in criminal cases, the possibility exists that the prosecutor could forget or simply fail to develop an aspect of its case, and the jury, in effect acting on the...