Thursday, February 1, 2007

Libby Jurors Question Witnesses

How often does a juror hearing testimony wonder about something that's never cleared up? Well, in the Scooter Libby trial, they don't have to keep wondering: they can write a question and send it to the judge (U.S. District Judge Reggie B. Walton), who will discuss with the attorneys for both sides whether to ask it and then, often, ask it of the witness. Jurors' Queries Yield Insights -- And Laughs, Washington Post, Feb. 1, 2007.

Some of the questions have been dead on, showing that the highly educated jurors -- who include an art curator, a retired math teacher and an international health policy adviser -- seem to home in on key evidence or testimony. Other questions have elicited new insights into witnesses' thinking, and still others have evoked a few laughs.

The whole practice has been controversial among attorneys on both sides -- worried about losing control of the points they hope to score with each witness's testimony -- who argue quietly with Walton at the bench over what can be asked.
According to the Post, "About 15 percent of state courts and 8 percent of federal courts permit jury questions." Arizona, Colorado, and Indiana require that jurors be allowed to ask questions.

The ABA recommends juror questions (at least in civil trials) in its Principles for Juries and Jury Trials (2005):
C. In civil cases, jurors should, ordinarily, be permitted to submit written questions for witnesses. In deciding whether to permit jurors to submit written questions in criminal cases, the court should take into consideration the historic reasons why courts in a number of jurisdictions have discouraged juror questions and the experience in those jurisdictions that have allowed it.
  1. Jurors should be instructed at the beginning of the trial concerning their ability to submit written questions for witnesses.
  2. Upon receipt of a written question, the court should make it part of the court record and disclose it to the parties outside the hearing of the jury. The parties should be given the opportunity, outside the hearing of the jury, to interpose objections and suggest modifications to the question.
  3. After ruling that a question is appropriate, the court may pose the question to the witness, or permit a party to do so, at that time or later; in so deciding, the court should consider whether the parties prefer to ask, or to have the court ask, the question. The court should modify the question to eliminate any objectionable material.
  4. After the question is answered, the parties should be given an opportunity to ask follow-up questions.
pp. 18-19 (Principle 13).

So questions might be a good idea ... but then how should a judge handle them? Leland Anderson, a trial judge from Colorado, offered "Practice Tips for Handling Juror Questions" at the 2006 National Symposium on the American Jury System. (You have to go to the list of program materials and then select his to download it in Word.)

The National Center for State Courts has a bibliography of articles about juror questions here.

Thanks: Stephanie Knightlinger.

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