This article analyzes the current state of jury questioning, including the extent to which it is required or discretionary; how it has -- or has not -- been used, and of significant importance, why or why not; the degree of correlation between concerns, advantages and disadvantages as predicted on the one hand, and as actually found in statistical research on the other; the body of appellate case law relevant to the particulars of jury questioning and the issues they have raised; and, a new survey on how it is both used and working in criminal and civil cases. Following this introduction, Part I discusses the extent to which jury questioning is now authorized. Part II focuses on major surveys and pilot projects which evidence jury questioning's benefits and problems. Part III presents a 2013 survey, performed by the author, of judges, prosecutors and public defenders of the Ninth Judicial Circuit in Florida with the goal of discovering how those with the best vantage point believe jury questioning is (or is not) working, and why. Part IV discusses the case law of jury questioning, focusing on problems stemming from its use at trial in varying jurisdictions. After the article’s conclusion, Appendix I provides a compendium of how the separate states, as well as the United States Supreme Court and the Circuit Courts, treat jury questioning. Appendices II, III, and IV detail the results of the Ninth Judicial Circuit survey.
Defendants are entitled to new trials, where: 1) failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenets of CPL 310.30 and qualifies as a mode of proceedings error; 2) the parties must be given meaningful notice of a jury's request for substantive information, and deliberating jurors must receive a meaningful response to their inquiry, neither of which occurred here; and 3) the deficiencies could have been easily avoided by making a record of compliance within People v. O'Rama guidelines
Long time readers of this blog know that I have am an advocate of allowing juror questions (for previous posts about juror questions go here and here). Well, it looks like the topic is once again in the news. The Boston Globe is reporting that jurors in a Boston federal trial submitted 281 questions for witnesses and lawyers. This large number of juror questions has led the ABA to conduct a poll (or question of the week) on whether or not jurors should be allowed to ask questions. I conducted a similar poll a few years back and was surprised by the number of attorneys who were against the practice. I am hoping that things might have changed. Allowing juror questions goes a long way in keeping jurors from conducting their own research on the Internet.
The Columbus Dispatch article below examines the question of whether Ohio trial judges should allow questions by jurors. As readers of this blog know, I have long been a proponent of juror questions. By allowing questions, judges create a more active jury. In addition, they reduce the risk that jurors will take it upon themselves to turn to the Internet to look for information about the case. This risk has become all too real in the Digital Age where jurors routinely access the Internet to satisfy their curiosity. This idea was reiterated by one of the judges interviewed in the article who stated,
[j]urors are curious...I’d rather they ask their questions here in open court than leave and try to find information from a source they should probably not be getting information from.
Everyone knows there is no such thing as a stupid question. Well, at least every parent, teacher, counselor, advisor, librarian and boss is evidently aware of the truth of that simple maxim. Nonetheless, the obvious utility of asking questions – seeking wisdom; requesting clarification; locating information – appears to have eluded certain high officials in the justice system of the United Kingdom, not to mention a raft of journalists, a clutch of parliamentarians, and a good swath of the British public, all of whom expressed consternation at a series of written questions posed by the jurors in a high profile, though relatively low stakes, criminal case. "Do we need IQ tests for juries?" wondered one pundit, who fumed that the jury's questions had "exposed a breathtaking level of ignorance and stupidity." Another echoed the thought, asking whether the jury was "stupid or just confused?" This article analyzes the ten infamous questions posed by the jury in the British trial of Vicki Pryce, who was accused of "perverting the course of justice" in an attempt to advance the political career of her now-former husband. Drawing upon legal history, criminal procedure, and cognition science, we conclude that the jury's questions were far more perceptive than the court and the British pundits realized.