EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, May 19, 2008

We The Jury, Take 2: First Returns Are In From New Florida Rules On Questions By Jurors

Earlier, I wrote about how, pursuant to landmark new rules by the Supreme Court of Florida, (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.  I concluded that post by musing, "I think that with proper educational initiatives, regular application of the rules, and proper oversight, the Florida system might result in a more proactive jury and serve as a model for other states.  I will certainly be looking forward to the result."  Well, the first results are in, and let's go to the scorecards.

An article indicates that while (as I suspected), the new rules have been sparingly used, at least in Sarasota and Manatee counties, juror questioning has already affected verdicts and surprised attorneys.  It appears that Circuit Judge De Furia is the only judge in either county to allow juror questions in all of his trials (eight so far this year), while other judges have not made it part of their trials, so jurors are unaware the process even exists.  And according to both prosecutors and defense attorneys who have tried cases before De Furia, the process has improved the quality of the trials.  Meanwhile, jurors in those cases have claimed that the process has clarified issues and made their decisions easier.

First, let's look at how the process has worked, at least in De Furia's courtroom.  To prevent questions that are not allowed under court rules, De Furia asks jurors to submit their questions to him in writing. Then, after the attorneys have finished questioning each witness, De Furia sends the witness and the jurors out of the courtroom.  Both attorneys then have the chance to object to each question, and, if they do not (or if the objections are overruled), the jury and witness are brought back into the courtroom and the questions are asked by De Furia in open court.

An article on the new rules mentions 2 cases where juror questioning played a large role.  In one case, it helped the prosecution.  During a four-day trial involving a pool construction firm owner accused of misappropriating money, jurors submitted 42 questions.  According to jury foreman Charlie Fridley, those questions became the turning points in deliberations in the jury room, with two or three of the jurors deciding that the defendant was guilty based on the questions they had asked and the answers that didn't make any sense.

In another case, juror questioning helped defense counsel.  In a home-invasion robbery trial, jurors had questions about the testimony placing the defendant at the scene of the crime.  Defense counsel claims that 20 questions asked by jurors during trial  gave him insight into how to attack the state's case when he made his closing argument, resulting in the defendant's acquittal.  According to defense counsel, "I think quite frankly it completely made my case....It gave me a really good idea what the jurors were thinking and what their problems were with the case."

So, what do readers think?  Do the Florida rules make sense, or should the "experts" be the only ones asking the questions?  Does the new process create the potential for making trials too lengthy?  Does it give the jurors too much power?  Or do the new rules protect against juror apathy and/or confusion?  Do they allow for jurors to raise questions that might have been missed by the attorneys?  I still maintain that juror apathy/confusion is the biggest concern facing the American legal system, and I think that based upon these early returns, the Florida rules could indeed serve as a model for other states.



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We have a similar system in Colorado that is far more widely used. IIRC, the state supreme court has upheld the system against the challenge that it was unconstitutional because it detracted from the duty of the prosecution, by itself, to meet the burden of proof (i.e. juror question answers could make it possible to show guilty beyond a reasonable doubt that would not have been present otherwise and produced an aquittal).

No such objections exist in civil litigation and my experience with juror questions in that context has been very positive, because it let's you know whether or not you have been successful in communicating to them. The other main effect is that it prevents both parties from mutually ignoring the "elephant in the room" questions because neither is convinced that the answer will be to your advantage.

Posted by: ohwilleke | May 20, 2008 11:53:59 AM

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