Juries

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.

Jurors Asking Questions in Florida

The article below examines the recent change in Florida's jury rules which now give jurors the right in civil (it is discretionary in criminal cases) trials to ask questions. 

Curious Jurors Raise Legal Questions

Some of the questions are comical.

''I actually had a trial where the jurors thought one of the defense counsel was being very monotonous and lengthy in his cross-examination,'' Gamba recalled. 'Their question was, `How much is Mr. So-and-So getting paid, and is he paid by the hour?' ''

The implications of an inappropriate question -- even if asked outside the earshot of fellow jurors -- would become amplified in a criminal trial, where a curious juror could reveal a hidden prejudice that might provide grounds for a mistrial, Cavanagh said.

Criminal judges have the discretion to allow questions, which rarely happens