Granting an Active Trial Role to Jurors

Sitting on a jury and unclear about a witness’ testimony? Puzzled by a piece of evidence?

Jot down a question and pass it to the bailiff. As long as your query doesn’t break any legal rules, you may get an answer--at least in some courtrooms.

Traditionally, jurors’ eyes glazed over as they sat passively and listened to endless evidence. Now some are getting the chance to take an active role in criminal and civil trials as more and more judges allow them to ask questions.

The change is part of a continuing push to improve juror experiences and increase juror participation in a state that has traditionally reported low numbers of citizens showing up for their civic duty.

Other reforms include paying jurors slightly more, giving them written instructions at the beginning of trials and permitting many to leave after one day if they aren’t selected for a jury.

The number of judges in California who allow jurors to ask questions is unknown, but estimates vary from 5% to 25%. Though some judges are bound to tradition, legal scholars say the number of those who allow questions is increasing steadily.

“Some judges experimented with it and disaster didn’t strike,” said Pepperdine Law School Dean Richard Lynn.

California judges have discretion on whether to permit queries and how to do it as a result of a 1998 state Supreme Court ruling. Jurors cannot stand up and ask witnesses questions directly. But judges can read aloud juror questions, pass them to the attorneys or decide with the lawyers if a question should be posed to a witness.

State Supreme Court Chief Justice Ronald M. George has made jury reform a top priority, advocating efforts to treat jurors with more respect. He appointed a statewide task force in 1998 to explore ways to improve the jury system.

Riverside County Judge Dallas Holmes, who heads the group, said members plan to recommend that the Judicial Council of California instruct judges to allow questions in their courtrooms.

“It’s a sign of respect for the jurors,” Holmes said. “We are not treating the juror the same as pads and pencils, but as key players. If they feel they are ... an integral part of the process, we find that they don’t go away mad and they are more willing to participate again.”

The movement, pioneered in Arizona, is taking hold nationwide. That state’s Supreme Court amended its rules of civil and criminal procedures to let jurors ask questions of witnesses. South Carolina, Massachusetts and New Jersey also have tried the option.

Florence Clark recently served on a jury in a Los Angeles real estate fraud case, where she was allowed to write down queries. She said the experience prevented misunderstandings.

“I felt our time was really respected,” said Clark, a USC professor of occupational therapy. “It’s more democratic. We were able to deliberate in a way that was fairer and more informed.”

In courtrooms where questions are permitted, a juror writes down the query and gives it to the bailiff. The judge reviews it and often shows it to the attorneys. If the question does not violate the evidence code, the judge asks it or allows the lawyers to do so.

In Judge Jacqueline Connor’s Los Angeles courtroom, the move has become standard practice.

“You are the judges,” she told jurors at the beginning of a recent gang murder trial. “I am the referee. As judges, you do not do any investigation. But I do allow you to ask questions.”

Two years ago, Connor conducted a pilot study on jury innovations in Los Angeles County Superior Courts. She and nine other judges experimented with such practices as presenting opening statements to the entire jury panel, providing jurors notebooks with instructions, and permitting written questions.

The study showed that jurors asked questions in 25% of trials. They said it helped them feel more involved, resolve puzzling issues and even prevented a mistrial. The committee recommended that the practice be implemented by all local judges.

“It’s a huge, huge benefit to the attorneys,” Connor said. “Whether they ask it or not, [the question] is still in their brains. This lets the attorney control the answer rather than have the jury speculating.”

Deputy Dist. Atty. Marian Thompson said questions from jurors can make the difference between a deadlock and a guilty verdict. She recently prosecuted several alleged kidnappers in trials in which questions were permitted.

“It gave us insight into jurors’ thought processes,” she said. “Jurors always have questions that aren’t answered. If there are unanswered questions, for that juror that may mean reasonable doubt.”

That’s exactly why questions should not be allowed, some defense attorneys say. If there are still holes in testimony, then prosecutors did not prove their case.

In addition, defense attorneys including Harland Braun worry that jurors who ask questions become advocates.

“I don’t know where judges are coming up with this harebrained idea,” Braun said. “Jurors should be listening to evidence and trying to remain neutral. Once they start asking questions, they automatically take positions.”

Braun represented a Los Angeles police officer in a Rampart corruption case heard by Judge Connor. During the trial, Braun said, jurors asked dozens of questions, many of which were “totally worthless.”

Steven Penrod, a psychology professor at John Jay College of Criminal Justice in New York, reviewed studies on the topic. Penrod wrote in a 1996 report that jurors’ questions helped alleviate their doubts about the evidence and helped them understand the facts and issues. The queries did not, however, increase juror, attorney or judge satisfaction with the trial, his report concluded.

Penrod said the majority of questions were appropriate and did not address issues that were irrelevant or intentionally omitted. Lawyers for either side objected to about one-fifth of the questions submitted by jurors, Penrod wrote.

The judges’ handbook on jury management advises that jurors be told not to expect that every query will be asked and not to make any assumptions if it isn’t.

Los Angeles Superior Court Judge Dale Fischer began allowing jurors to submit inquiries about a month ago. So far, no one has done so. Fischer is convinced that over the long run, the practice will help jurors comprehend dense testimony in criminal trials.

“It’s always difficult to move onto something you haven’t done before,” she said. “But I’m always interested in doing things ... to improve the system.”