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State Jurors Gain Power To Question
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Published: January 4, 2008
Updated: 01/04/2008 12:44 am
TAMPA - When Kevin Shelden sat as a juror on a recent murder case, he had questions he would have liked to ask the witnesses.
He and other criminal jurors in Florida, however, have almost never been allowed to question witnesses who testify before them.
Controversial new rules from the Florida Supreme Court that went into effect Tuesday may change that.
The rules grant criminal court judges the discretion to allow jurors to pose questions for witnesses. The court went further in civil cases, mandating that judges allow all civil court jurors to submit questions for witnesses. The rules are the culmination of what the state Supreme Court says was the "most comprehensive review and thorough evaluation of Florida's jury system in the history of this state."
Shelden said allowing jurors to submit questions could be a good thing, especially in cases where prosecutors and defense attorneys keep pertinent information out of the trial.
Although he had questions for witnesses in the three-day trial he helped decide, Shelden said it wouldn't have made any difference in the jury's conviction of the defendant.
"I don't think it would have changed the outcome because there was a lot of evidence," said Shelden, who works as a Wal-Mart manager. Still, he said he would have liked to have asked a witness who saw an argument between the defendant and victim more details about the intensity of the fight.
The new rules don't allow jurors to directly ask questions, but to write them down after attorneys have finished their examinations. The written questions then are submitted to the judge, who consults with the attorneys about the questions' propriety. If the questions are deemed relevant and legally permissible, the judge poses them to the witness.
The movement to allow jury questions for witnesses is part of jury improvement efforts that have rippled across the United States, according to the American Judicature Society, which says the reasons to allow them are "based on common sense. Since the trial is a search for truth, and the jurors have to ultimately decide the case, the truth-seeking process is advanced if jurors are able to ask questions about a point that is unclear to them," the society says on its Web site. "Allowing jurors to actively engage may increase their attentiveness. The questions may signal to the lawyers important information about how the jurors are thinking about the case, which may allow the lawyers to present their cases better."
Some Fear Getting Bogged Down
Some lawyers and judges worry that could throw a wrench in the justice system, converting jurors into advocates and slowing trials.
"I think you would grind the system to a halt if you were to allow jurors to ask questions of witnesses during the course of a trial," said Brian Gonzalez, a criminal defense lawyer, who worried about the amount of time the process will take and the lack of understanding among jurors about the rules of evidence and the legal system.
Lawyer Barry Cohen, who represents both criminal and civil clients, also objects to the rules. A juror's "job is to sit and listen and to apply the evidence to the law, not to be a participant," Cohen said. "When they start participating in the trial, I think the whole system becomes a malfunction process."
The new rules "create too much opportunity for mistrials, for confusion," he said. "In my judgment, it's not consistent with what the jury system's designed to do, which is to have the trained lawyers seek the truth in the process."
Two Florida Supreme Court justices dissented from the order setting the rules, which also permit jurors to take notes and set procedures to ensure a more efficient use of jurors' time.
Justice Peggy Quince wrote that she opposes allowing jurors to ask questions, saying she feels strongly it's up to the lawyers to present the evidence in court.
Justice Kenneth Bell wrote that he would not have made mandatory the requirement that jurors in civil trials be allowed to submit questions to witnesses.
Although the court rules went into effect Tuesday, jurors in civil cases have been permitted by some judges to submit questions to witnesses for years.
'Great Benefit To Everybody'
Hillsborough Circuit Judge James Barton said he has allowed the practice in nearly every trial he has had for about six or seven years.
Barton said he had some of the same concerns as others about the process, but since he started allowing it, he has become a convert. "It's a great benefit to everybody," he said. Lawyers gain insight into the thinking of juries, and jurors who submit inappropriate questions receive guidance on what should not be considered in their deliberations, Barton said.
Barton said he's not sure whether the procedure will work as well in criminal trials, but he said he has never seen the procedure slow a case. Plus, he said, allowing jurors to ask questions keeps them more engaged. "The worst thing you want to see is a juror nodding off and seeming to not pay attention," he said.
Still, he said, jurors usually don't ask questions even when given the chance.
Judge Daniel Perry learned that when he experimented with letting jurors submit questions in a high-profile criminal case in 1999, during the first trial of Bernice Bowen, who was convicted of lying to police about her boyfriend, Hank Earl Carr, who later killed three law enforcement officers.
Perry said he reasoned the trial was "fairly important" and would take long anyway, so he decided to let jurors submit questions for witnesses.
"None of them asked a single question," Perry said. After the lack of interest, Perry said, he didn't offer the option again.
Still, Perry said he has no problems trying it again.
Judge Debra Behnke, who also sits in the Criminal Division, said she will probably decide case-by-case whether to allow jurors to submit questions for witnesses. She said she's concerned about what kinds of questions might be asked.
"When you're going to tell them, we're not going to ask the witness that question, they're just going to get frustrated," she said. "It's just going to be a real sticky wicket. I'm guessing that it's not going to be very frequently" that it will be allowed.
Reporter Elaine Silvestrini can be reached at (813) 259-7837 or esilvestrini@tampatrib.com.
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