By Dennis M. Sweeney
The Daily Record Newswire
I have previously discussed the so-called CSI effect and whether jurors should be questioned about it and have also reflected on the difficulties trial judges face in deciding how far to go in asking voir dire questions to fairly discover the biases of jurors.
Last month, the Maryland Court of Appeals decided a case on the CSI effect that did not resolve the question of whether such an instruction is appropriate but, in discussing the subject, created another area of great uncertainty for trial judges and lawyers trying to formulate voir dire questions.
In Charles v. State of Maryland, 2010 WL 2431083 (June 18, 2010), two defendants were convicted of second-degree murder and use of a handgun in a felony or crime of violence. During jury selection, over defense objection, the trial judge asked the following question:
“I’m going to assume that many of you, from having done a few of these, watch way too much TV, including the so-called realistic crime shows like CSI and Law and Order. I trust that you understand that these crime shows are fiction and fantasy and are done for dramatic effect and for this dramatic effect they purport to rely upon, quote scientific evidence, close quote, to convict guilty persons. While this is certainly acceptable as entertainment you must not allow this entertainment experience to interfere with your duties as a juror. Therefore if you are currently of the opinion or belief that you cannot convict a defendant without quote, scientific evidence, close quote, regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law, please rise.”
Six members of the panel responded affirmatively and were questioned by the court, but all six were stricken for cause for reasons other than their responses to the CSI question. Thus, no juror who actually sat on the case and rendered the verdict had responded to the CSI question.
The Court of Appeals took the case to decide the issue of whether the trial court erred in asking the prospective jurors on voir dire whether they would be unable to convict the defendant in the absence of “scientific” evidence. The Court of Appeals declined to rule on whether a general CSI-type of question is appropriate; instead; it said it had a “seminal opportunity” to consider the appropriateness of specific language of a voir dire question rather than the aim of the question itself.
In particular, the Court of Appeals focused on the language of the question about whether prospective jurors would be able to “convict” without scientific evidence.
Relying on cases involving erroneous final instructions given to juries just prior to deliberations, such as State v. Hutchinson, 287 Md. 198 (1980), the Court of Appeals found that the jury selection question was not sufficiently even-handed and (in the court’s view) “suggested that the jury’s only option was to convict, regardless of whether scientific evidence was adduced.”
In its conclusion, the Court of Appeals said the trial judge abused his discretion by suggesting that convicting the defendants was the only option. The court found that “this suggestive question poisoned the venire, thereby depriving Drake and Charles of a fair and impartial jury.” New trials were ordered.
Unfortunately, this opinion will inject new uncertainty into the already confused subject of questioning prospective jurors during jury selection. It is difficult for the trial judge to predict what questions the Court of Appeals will consider to be “mandatory” in the future, leaving trial judges to speculate and allowing advocates to game the system by asking for questions they secretly hope the trial judge will not ask so that they will then have an issue for appeal.
Good advice has been given in earlier concurring opinions by Court of Appeals Judge Joseph F. Murphy Jr. for trial judges to try, where possible, to accommodate the voir dire questions suggested by the parties and to expand questioning beyond the bare minimum. See, e.g. Moore v. State, 412 Md. 635 (2010). The Charles opinion now suggests that any creation or refashioning of a suggested jury question by a trial judge must be done in such a way that, in reading the question, no possible argument can be made that the prospective jurors are being incorrectly instructed on the law. Otherwise, a party can later argue that the venire was “poisoned” by merely hearing the improper or ill-phrased question and that a fair and impartial jury was not impaneled regardless of what occurred later in the trial or what instructions were given prior to deliberations.
In Charles, there is no indication that the trial judge’s final instructions to the jury misstated the law as to evidence or the burden of proof, but neither does the Court of Appeals discuss whether subsequent correct instructions can render the original taint of “poison” harmless or cured.
Because of the dockets they struggle with, trial judges in many courts frequently are assigned serious cases with complicated issues for jury trial immediately before jury selection begins; they must attempt to conduct jury selection with an imperfect understanding of all the issues that may arise during the trial and what the final instructions will look like. To impose a requirement that judges must perfectly state legal principles in the questions posed during jury selection or be subject to a charge that the jury is irrevocably “poisoned” before it is sworn is an unrealistic standard that could lead to many more reversals in which the trials are otherwise without significant errors.
It could also lead to judges being reluctant to expand voir dire questioning beyond traditional standards out of fear that additional questions could be determined later to have “poisoned” the venire panel.
Perhaps the Court of Appeals in future cases will narrowly limit its holding to the specific facts of the Charles case or contain it to questions that discuss findings of guilt without reminding jurors that not guilty verdicts are also an option. If so, the uncertainty of the reach of the decision will be resolved in a way that can be managed. Until then, much will remain for judges and lawyers to be concerned about when fashioning voir dire questions that involve some statement of the legal principles involved.
It should also be noted that there is no indication in the opinion that the rule announced would apply only to criminal jury trials. Given the past tendency of the Court of Appeals and the Maryland Rules to treat voir dire procedures in civil and criminal trials virtually identically, one could expect this opinion’s “seminal” analysis to apply also to civil cases.
Earlier this year, after two decades, a third edition of Maryland Criminal Jury Instructions and Commentary by Washington College of Law Professor David E. Aaronson was published by LexisNexis. Since it has been so long since the issuance of the prior edition, judges and lawyers have tended to neglect Professor Aaronson’s excellent work. Instead, they have relied heavily on the Maryland State Bar Association’s Maryland Pattern Jury Instructions, or MPJI. In some cases, the Court of Appeals has instructed that the precise language of the MPJI be used, which can suggest to judges and lawyers that they should look no farther afield for guidance.
As in most endeavors in human life, it is good to have competition. It is thus valuable to again have Professor Aaronson’s thoughtful analysis and clear and simple drafting of instruction language back in the arena. The wait has been worth it. The work is scholarly and contains thoughtful analysis of Maryland criminal law and should be on the bench of every Maryland circuit court judge and in the briefcase of every criminal defense lawyer who appears in circuit court. Not only does it contain instructions on subjects not currently covered by the MPJI instructions, it also contains alternatives that should be considered, especially where Maryland law is unsettled or uncertain. For example, the third edition contains a suggested instruction on Cross-Racial Identification of Defendant with an extensive 23-page analysis of how the Maryland courts and other jurisdictions have dealt with the subject.
It would, however, be too narrow to view this two-volume work as merely a guide to jury instructions. With the extensive analysis and commentary provided by Professor Aaronson on substantive offenses, it is simply an indispensable tool for the conscientious judge, lawyer or law student who wants to understand Maryland criminal law.
Howard County Circuit Judge Dennis M. Sweeney, retired, chairs the Judiciary’s Committee on Jury Use and Management. Judge Sweeney can be reached at judgesweeney@mac.com.
