Juries

Jurors in Clemens Perjury Trial Continue to Ask Probing Questions

This only reaffirms my belief that more jurisdictions should allow jurors to ask questions.

Wall Street Journal: Clemens juror: 'Why should we believe you?'

Among the 29 questions the Roger Clemens jury wanted to ask the pitcher's chief accuser, Brian McNamee, one cut to the heart of the case.

"Why should we believe you when you have shown so many inconsistencies in your testimonies?"

"I won't ask that," U.S. District Judge Reggie Walton declared during a bench conference with trial attorneys to decide which juror questions he would read. "That's for them to decide."

The question makes it sound as if at least one of the jurors in the perjury case has serious doubts about the credibility of the government's key witness against the 11-time All-Star pitcher.

Or it could be that the juror believes McNamee, but wanted to play devil's advocate just to make sure...to continue reading go here.

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Jurors Ask Questions in Roger Clemens Trial

This article discusses the questions posed by jurors in the Roger Clemens perjury trial.  As regular readers of this blog know, I have always been a big fan of allowing juror questions. Thankfully, more and more judges are allowing the practice in their courtrooms. For other posts about juror questions go here.

Washington Post: Roger Clemens trial: Jurors come with questions, and get to ask them‎

Jurors wondered whether key evidence might have been planted and if a former drug dealer regretted having “destroyed people’s lives.” And at least one wanted more testimony about a heated discussion that wasn’t fully explored in court.

Those are the types of questions that might pop into the head of a juror during any criminal trial. And that is usually where those questions remain, locked away until jurors are finally permitted to discuss the case during their deliberations...to continue reading go here.

 

Louisiana Jurors May Soon Have the Right to Take Notes

At present, jurors in Louisiana may take notes during trial subject to the approval of the defense and the prosecution. However, jurors in Louisiana do not have a right to take notes. This may change if state senator Edwin Murray has his way. His bill SB5 would give jurors this right. SB5 would also allow jurors to receive a copy of the charges in the case. While Louisiana would be one of the few states to give jurors the right to take notes, more and more jurisdictions are moving in the direction of giving jurors increased tools (notes, questions, pre-deliberation discussions, etc.) to carry out their duties.

For more on this topic go here.

More Jurisdictions Allowing Juror Questions

Corporate Counsel: Jurors Allowed to Question Witnesses in Patent Trial

For the first time in an Eastern District of Texas courtroom, jurors in a patent trial recently got to ask questions of witnesses.

It was an experiment that Chief U.S. District Judge Leonard Davis long had wanted to try in complicated patent litigation — the type of case for which his jurisdiction is famous. Davis says he got the idea a year ago at a conference of chief U.S. district judges. He figured it was OK as long as letting jurors submit written questions for witnesses didn't delay or complicate a patent trial...to read more go here.  To read more posts on juror questions go here.

Illinois SCT Approves of Questions by Jurors in Civil Trials

The Illinois Supreme Court has officially endorsed the practice of allowing jurors to ask questions of witnesses in civil cases.  Although the practice has been used previously by some Illinois judges, the recent decision removes any doubt that the practice is authorized.  This decision by the Illinois Supreme Court follows a growing movement in the country to allow questions by jurors e.g., both Florida and Michigan recently started to allow the practice.  Many see juror questions as a way to improve juror comprehension and juror decison making.

Last summer, I testified before the Illinois Supreme Court Rules committee on this issue.  One of the reasons that I gave in support of allowing juror questions was that it would cut down on juror misconduct.  I argued that if jurors were allowed to ask questions they would be less likely to go online and conduct their own independent research of the case.

Here is how the process will work in Illinois.

 At the conclusion of questioning of a witness by attorneys, the trial judge will determine whether the jury will be afforded the opportunity to question the witness. If ques-tions are deemed appropriate by the trial judge, jurors will be asked to submit any question they have for the witness in writing. No discussion regarding the questions is allowed between jurors. The bailiff will collect any questions and present them to the judge who will mark them as exhibits and make them part of the record.

The judge will read the questions to all the attorneys outside the presence of the jury, and give counsel an opportunity to object to the question. The trial judge will rule on any objections and the questions will either be admitted, modified or excluded.

The trial judge will ask each question that is permitted and will instruct the witness to answer only the question presented. The judge will then provide all counsel with an opportunity to ask follow-up ques-tions limited to the scope of the new testimony.

To read more about the decision go here.

Jurors' Notes Help Persuade Lone Holdout

This article discusses how jurors in the Chandra Levy murder trial used their notes to help convince a lone holdout juror that the defendant, Ingmar Guandique was guilty.  The juror in question did not take notes during the trial and instead relied on the notes by other jurors to reach a guilty verdict.

Washington Post: A single holdout delayed the verdict

Jurors in the Chandra Levy murder trial could have rendered a verdict as early as Friday, after just two days of deliberations. In fact, all but one of the jurors were convinced that Ingmar Guandique had accidentally killed the young government intern during a robbery.

But one juror wasn't sure, according to Sharae Bacon, one of the jurors who spoke about the deliberations after the verdict was delivered. She declined to identify the juror but said the juror had not taken notes during the more than two weeks of the trial and wasn't convinced there was any proof that Guandique had tried to rob Levy.

"We had to share our notes [with the juror]. It was very frustrating. We said, 'Just think about it over the weekend and let us know what you think on Monday, Bacon said. By Monday morning, the holdout had reviewed the other jurors' notes and agreed with the majority, she said.

Turning Over Notes by Jurors (Canela and Perez v. Maryland)

In Canela and Perez v. Maryland, the Maryland Court of Special Appeals ruled last week that the trial judge should have turned over the notes he received from the jurors deciding the defendants' case.  The juror notes that were never given to defense counsel ranged from requesting clarification of witness testimony to informing the court that one juror was being inattentive.  The Court of Special Appeals held that the failure to turn those notes over while inappropriate does not necessarily result in a new trial for the defendants.  For that to occur, the defendants must show that the notes affected the verdict, which did not happen in this case. 

According to the appellate court,  “All of these questions involved very minor issues that had nothing to do with guilt or innocence …,” Judge James P. Salmon (retired, specially assigned) wrote for the appeals court. “[I]t is impossible for us to see how defense counsel might have conceivably changed their trial strategy, nor is it conceivable that the jury verdicts might have been different if defense counsel rather than Judge Mitchell cleared up these minor details.”

It will be interesting to see if MD's high court upholds the appellate court's finding.  For additional background information about this case go here.

More Concerns with Questions by Jurors

As regular readers of this blog know, I strongly believe in allowing jurors to ask questions for a variety of reasons. First, it keeps jurors engaged and interested in the trial. Also, it decreases the likelihood that jurors will conduct independent research outside of the courtroom. However, this is not to say that questions by jurors are free from risk. As discussed previously, juror questions have been known to improperly influence the parties at trial. Also, if handled incorrectly, as illustrated by the article below, these questions can serve as ripe grounds for appeal.

Lawyers vie over jury notes in city triple-killing case

Defense lawyers questioned the handling of jury notes Thursday as they sought a new trial for two men convicted in the near-beheadings of three young relatives nearly five years ago.

Defense attorneys for the two illegal immigrants say the trial judge did not disclose notes from the jury as required in the retrial of Policarpio Espinoza and Adan Canela, two Mexicans who were convicted of first-degree murder and are serving life sentences for the 2004 killings.

Retired Howard County Circuit Judge Dennis M. Sweeney, who has been assigned to determine whether the notes were disclosed, questioned both sides at length as attorneys presented their arguments in Baltimore Circuit Court.

A note sent by jurors complaining about an inattentive juror figured prominently in the questioning.

In the note, jurors complained one member was inattentive, sleeping at times and should be removed for lack of concentration. Defense attorney Brian Murphy said the record was "devoid and silent" on whether the defense was made aware of the note and Sweeney said it was a "bit of a mystery" why the note wasn't in the record, particularly because the juror was later dismissed for not appearing for duty.

Sweeney noted the defense argued at the time to keep the inattentive juror and that "just doesn't make any sense" if they had seen the note.

"Is it your argument, the defense wanted a juror other jurors hated?" Sweeney asked Assistant State's Attorney Matthew Fraling, who responded that he couldn't divine the intent of the defense.

Fraling told the judge all the jury notes were placed in the case file, where they could be viewed by both sides, prompting Sweeney to ask if that was all that was done. Fraling responded that it wasn't and the placement "buttressed the argument" that the notes were shared with both sides…to continue reading go here.

The Downside of Allowing Jurors to Ask Questions

"What is the maximum amount that can be awarded?"

This is the question that one juror posed to the trial judge during deliberations of a personal injury civil lawsuit. Ford Motor Company was being sued by a passenger who suffered severe injuries when the Ford Explorer in which she was riding crashed and repeatedly rolled over.  Upon hearing the question from the juror, Ford quickly moved to settle the case for $3 million, which was double the amount that had previously been discussed during earlier settlement negotiations. 

The interesting issue here is that at the time of the settlement the jury was leaning 11-1 in favor of Ford. The lone holdout was the juror who sent the note.  Not surprisingly, Ford has tried to challenge the settlement by alleging juror misconduct. Specifically, Ford is arguing that the juror sent the note in an effort to mislead the parties.  Despite being overruled at the trial and appellate courts, Ford took its appeal to the Texas Supreme Court which ruled last week (Ford v. Castillo) that Ford may conduct discovery with respect to possible juror misconduct.  According to the Texas Supreme Court, “[d]iscovery involving jurors will not be appropriate in most cases, but in this case there was more than just a suspicion that something suspect occurred — there was some circumstantial evidence that it did…,"

In a concurring opinion, two justices also suggested modifying how jurors could submit questions to the judge in the future.  Specifically, the concurring opinion states that “[t]he rules of procedure and the instructions to the jury should be amended to specify that only the jury can send questions about the deliberations to the judge during deliberations. At a minimum, the entire jury should know that a question about deliberations is being sent to the judge. This will preclude an individual juror or a group of jurors from sending a question to the judge under circumstances that suggest, as in this case, that the question was from the jury.”

Court allows Ford to investigate jury

SEC v. Koenig (7th Circuit Permits Questions by Jurors)

As discussed last week in the informative newsletter put out by the National Center for State Courts, the 7th Circuit Court of Appeals in SEC v. Koenig(Easterbrook) has upheld the practice of allowing jurors to ask questions of witnesses.  The Court in rendering its decision examined the benefits that result from allowing jurors to ask questions.  Specifically, the Court stated that "District judges throughout the Seventh Circuit participated in the project.  The judges, the lawyers from the winning side, and, tellingly, the lawyers from the losing side, all concluded (by substantial margins) that when jurors were allowed to ask questions, their attention improved, with benefits for the overall quality of adjudication."

The project referenced by the Court in Koenig was a 3-year study conducted by the Bar Association of the 7th Circuit Court of Appeals in which 7 "new" reform proposals (listed below), previously recommended by the ABA, were tested for effectiveness in 50 Civil jury trials. I emphasize the word "new" because many of these concepts have or are currently used across the country. For the most part, those who participated in the project found that the 7 proposals, especially the first 2, improved (as noted by the Court) the overall trial process.

1. Questions posed by jurors (this concept has been previously discussed here)

2. Providing jurors preliminary jury instructions

3. Limiting attorney presentations

4. Using 12 person juries

5. Allowing counsel to make interim statements to the jury between witnesses during the evidence phase of the trial

6. Having jurors fill out questionnaires for the jury selection process

7. Providing jurors with guidance about how to conduct their deliberations.