Monday, February 2, 2009
Last January, I wrote a post about landmark new rules by the Supreme Court of Florida, pursuant to which: (a) judges in civil cases must allow jurors to submit questions for witnesses, and (b) judges in criminal cases have the discretion to allow jurors to pose questions for witnesses. Then, last May, I wrote a post noting that both prosecutors and defense attorneys who had tried cases before the only Florida judge to allow juror questions in all of his trials had found that the process has improved the quality of the trials while jurors in those cases claimed that the process has clarified issues and made their decisions easier. Finally, last October, I wrote a post about how the Seventh Circuit did a study of jury questioning during trials and received overwhelmingly positive feedback from the attorneys, jurors, and judges involved.
Well, now Broward County's chief homicide prosecutor, Brian Cavanagh, has raised a bizarre objection to Florida's jury questioning process. According to an article, Cavanagh said that,
"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."
Excuse me? Cavanagh is saying that this is a bad thing? The jury questioning process is a bad thing because it might lead to a mistrial on the ground that it could reveal that a juror who made it through the jury selection process is actually racist, biased against one of the parties, or connected with the trial in some other meaningful way? I would say that such a result would be one of the better collateral consequences of such a process because, as readers of this blog know, it is very difficult for jurors to impeach their verdicts after trial based upon evidence of juror bias.
Meanwhile, Cavanagh's concern that '''[t]here is a real and present danger that I think everyone is aware of when jurors start asking questions,' because they aren't aware of rules of evidence that dictate what can and cannot be asked of witnesses" seems unfounded to the extent that their questions are "given only to the judge, who determines -- with input from attorneys for both sides -- if the inquiry is allowable."
I do, however, think that Tom Gamba, a veteran Miami-Dade civil attorney, has a potential valid criticism of the process. According to the same article, Gamba "gave mixed reviews of juror questions, noting that even if a judge disallows a question, the query still gives opposing counsel a window into the juror's thinking that they otherwise would not have had." Is that a bad thing? I'm not sure, but I do know that Cavanagh's criticisms seem entirely unfounded.