Monday, November 21, 2011
A defendant is on trial for first-degree murder. During trial, the judge takes questions from the jury and asks them to jurors. Here are two examples:
To an Eyewitness for the Prosecution
THE COURT: And sir, what effect, if any, did the fact that he had cornrows in that photographs have on your determination of whether or not to pick out that photograph?
THE WITNESS: Well, I have to say, of course, it was part of the, the whole picture, but the facial expression, the, it looks like the, the overall body size, just the face in general, the complexion, that taken into account as a whole, including the cornrows is what—
THE COURT: Okay. That was a juror's question.
THE COURT: Sir, when you saw, were you able, saw the shooting, were you able to look directly at the shooter's face?
THE WITNESS: Yes. Yes, sir.
THE COURT: Is that as he ran by you?
THE WITNESS: Well, they were, when he started the shooting and then as he ran by, the, as he ran by was, he wasn't looking at the medic unit, but he was, you know, at a slight angle maybe looking down, but I had a good view of his face. The time when I saw his face fully as closely as it would represent the mug shot was when he came from the left side of Mr. Jones and started shooting, and then started running past us.
THE COURT: All right. That was a juror's question.
Was this proper? According to the recent opinion of the Court of Special Appeals of Maryland in Handy v. State, 2011 WL 5084570 (Md.App. 2011), the answer is "yes."In Handy, the facts were as stated above. After the jury was seated, the judge gave jurors the following plenary instruction:
Now, there's a split of authority on whether or not you are entitled to ask questions. I'm of the opinion that you are. So if you have any question concerning the testimony while that witness is still in this room, pass me up a note. And if the witness is up from the jury stand, I'll stop him or her if you let me know you've got a question. Say Judge, I got a question, or pass it up and I'll see you passing it up and I'll have [the law clerk] get it. Then I'll read it. If I can't ask it, if there's—because a lot of time questions are very interesting, but they have no legal value, no probative value into the issues that you're going to have to decide.
If it has no probative value, I'm not going to ask it, because if they had asked the same question, I would have sustained an objection and when that happens, the witness can't answer the question. I'm the legal umpire during the course of the trial. I call legal balls and strikes. I'm obliged to do two things during the course of the trial, and—I guess it's three really—and make sure that I explain the law to you in language that allows you to do your job.
After the defendant was convicted, he appealed, claiming, inter alia, that the trial judge erred by asking jury questions. In response, the Court of Special Appeals of Maryland noted several things:
•"The majority of federal courts to address the issue have held that whether to permit juror questioning is a matter of trial court discretion;"
•"The majority of state courts that have considered the question have also held that the practice is left to the sound discretion of the trial court;"
•"A number of journals and law reviews are also in support of permitting questioning from jurors;"
•"In contrast, a few courts have held that juror questioning of witnesses amounts to error or an abuse of discretion;" and
•"[O]f the courts that do allow juror questioning of witnesses, many suggest procedures a trial court should use in such circumstances."
The Court of Special Appeals of Maryland ultimately sided with the authorities giving courts discretion to allow jury questions, finding as follows:
In sum, we find no prohibition of a process by which jurors may post questions to witnesses, albeit under carefully developed, explained, and monitored procedures consistent with Md. Rule 4-326. Ultimately, such a process is within the sound discretion of the trial court, a discretion that is to be carefully exercised. It is paramount that jurors not be permitted to be partisans for either party. While we assign the process to the discretion of the trial court, we caution that juror questioning is a procedure that may be best left to the more complex or protracted litigation, as opposed to garden variety, everyday trials. In reaching that conclusion we do not suggest that some trials are less significant than others; indeed, to the parties there is no such event as “a little case in the circuit court.”
In the exercise of sound discretion, trial courts should develop, and explain, a detailed procedure for juror questioning. At minimum, the court's intent to engage the process should be explained to counsel in advance and allow counsels' comments or concerns. The process should be explained to the seated jury with a caution that questions, if submitted, must be offered while the witness remains on the stand. The court should also explain to the jury that not all questions will be asked and, further, that questions are subject to objection by counsel and must seek only evidence admissible under the rules of evidence. Questions must be shared with counsel before being asked, giving counsel the opportunity to pose objections. When a juror's question is asked, counsel must be afforded the opportunity to ask follow-up questions. Finally, in the exercise of discretion, the court may terminate the process should there be any appearance of impropriety or partisanship.