J.A.I.L. News Journal
Los Angeles, California January 12, 2006
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Jurors Smarter Than First Thought
January 03, 2006
Lawyers glad jurors may query witnesses
More than a year after the Colorado Supreme Court cleared the way for jurors to question witnesses in criminal trials, judges and lawyers have warmed to the idea.
Colorado's courts have phased in jury questioning over the past decade, starting with civil trials, then progressing to criminal trials involving less serious charges. Since July 2004, jurors have been allowed to question witnesses in all trials — even first-degree murder — unless the trial judge prohibits questioning based on factors such as the presence of significant suppressed evidence.
The phase-in has gone more smoothly than many expected, including 4th Judicial District Judge Thomas Kane.
"I really like the reform," he said. "The jury questions tend to go right to the heart of the case. They tend to be very direct, very to the point, and I think that's a good thing."
When jury questioning was proposed, many lawyers resisted, Kane said. Now, most seem to like the process because it gives them clues about what jurors are thinking, he said.
Defense attorney Philip DuBois was one of the resistant ones. He said his fears have been unfounded.
"Even in the most serious cases, I can't ever say that I've had a client prejudiced by questions," said DuBois, who primarily handles murder cases.
DuBois previously worried that jurors' questions would cause the trial to veer into issues that were irrelevant or had been ruled inadmissible, he said. But that hasn't been a problem because judges screen questions and disallow those about suppressed evidence, prior convictions or suspects' refusal to answer police questions.
"In any given case, there are areas in which I don't want to go, doors I don't want to open," DuBois said. "That's true of both sides. The fear was that jurors would want to know about those things and might feel we were hiding things if they didn't get answers."
Instead, good lawyers use juror questions to gauge what evidence and testimony jurors are interested in, DuBois said. Lawyers can then tailor their questioning of other witnesses and their closing arguments to jurors' expectations.
Deputy District Attorney Diana May said prosecutors also have found juror questions useful.
"Jury questions are a very progressive, effective tool," she said. "They help both sides know where the jury is focusing, and they help you realize if you missed a point."
May has tried at least a dozen cases in which jurors were allowed to ask questions. She said based on her experience, judges allow at least 75 percent of the jurors' questions to be asked.
Fourth Judicial District Judge David Miller, a former prosecutor and defense attorney in the Air Force, said he was disappointed to see that the civilian courts did not allow jurors to ask questions when he switched to civilian law in 1988. Military courts have long allowed jurors to question witnesses, he said.
"I think it benefits the system because it keeps the jury more engaged," he said. "It gives them more ownership. They're not just spectators."
Jurors in civil and criminal trials appreciate the fact that they're now allowed to question witnesses and to take notes, which wasn't allowed before 1997, when Colorado's judicial branch made reforms to address growing dissatisfaction with the jury system, Kane said.
"It invests jurors in the case and makes them much more attentive," he said. "It keeps them more focused and I think ultimately helps them make better decisions."
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