Questions from jurors are good for lawyers -- and the law

 By Richard P. Matthews

The Daily Record Newswire
 
A recent Boston Globe story on the nearly 300 questions that jurors in the Probation Department corruption trial submitted to the judge negatively skewed, in my opinion, the whole practice of allowing juries to ask written questions during trials. That’s wrong.
 
Juror questions are a good thing, and you should be enabling them in every one of your trials.

I work out of San Francisco, but to be clear, I love Boston and Massachusetts, dislike the New York Yankees, am an American Revolution aficionado, and gave my son the middle name of Adams in honor of the single most important figure for American independence not named George Washington.

But there are times that Massachusetts’ perpetual 18th-century-ness is frustrating and wrong-headed. Its treatment of citizens who are working hard to perform one of democracy’s crucial functions is one of those instances.
There is no intelligent reason to persist in ignorance when we flat-out know better. One of the things we know now is that allowing jurors to ask questions during trial is a good thing. One attorney was quoted in The Globe as saying, “It’s a little unorthodox.”

No, it’s not.

Like good driving, it’s common and widespread — just not in Boston. The majority of states have done it for years. For instance, California Rule of Court 2.1033 says: “A trial judge should allow jurors to submit written questions directed to witnesses. An opportunity must be given to counsel to object to such questions out of the presence of the jury.”

It is not even discretionary with the judge, as it is in Massachusetts. It’s a basic expectation associated with treating jurors like thinking, functioning adults and not lab rats we can control.

Common in California, gangbusters in Gotham

In California and elsewhere, I’ve seen it done as a basic procedure: The judge receives a note, usually passed along by the bailiff. At the end of the break but before the jury is brought in, the judge reads it to the lawyers. Counsel has a chance to object to the question being asked; the lawyers whisper to their clients not to worry about it (“this happens all the time, did I mention you look great today …?”).

The jury is brought back in, and the judge says either, “Thanks for your question — I will read it to the witness when we resume,” or “Thanks for your question — I understand why you want to know that, but cannot ask it because of some rules. Sorry.”

After New York instituted written juror questions, a 2005 statewide study found that the average number of questions posed by jurors was 2.5 per civil trial and 4.7 per criminal trial, adding mere minutes to the length of an average trial.

The upshot: more clarity and understanding by the people who have to reach verdicts, with insignificant downside. Qualitatively, the study found that attorneys who had never been in a trial in which jurors could submit questions were skeptical and fearful of the questions. Yet attorneys and judges who worked trials with juror questions were overwhelmingly positive about the innovation.

The number of questions posed by jurors in the Probation Department trial, 281, is admittedly high — I’m guessing unprecedented, by a wide margin. Even putting aside the ones not posed to witnesses (e.g., asking for office supplies, a court procedure manual), it’s a huge number that reveals an active, engaged group taking its job very seriously and already contemplating how to get to work in deliberations.

Yet if we trial teams were entirely honest with ourselves, we might acknowledge that questions from jurors after a case closes reveal that maybe we didn’t complete our job during the trial. Maybe we didn’t understand the ambiguities we were creating or anticipate the gaps we were leaving. Maybe we didn’t do a good enough job of seeing our case through the eyes of laypeople who had not spent the previous two years on the matter.
When the number of questions climbs above 10 or so, perhaps we have to accept that some of that is our fault.

Missing the chance to fix your case
But the thing that struck me most about The Globe story was the rampant fear of questions from jurors — the fear of treating adults with respect and concern for their comprehension instead of pretending that human brains work just like the evidence code would suggest.

The quote from the 1st U.S. Circuit Court of Appeals upholding the practice in a 2002 trial is a prime example of a priggish, antiquarian attitude toward juror questions: “Although we think that this practice may frequently court unnecessary trouble, we find no error … .” (Emphasis added)

A moment of empathy, please, with citizens who are out of their element both with the facts of the case and the mechanics of trials, with the law and the inherent mystery of how to be a juror. Jurors know they are being asked to render a life-altering answer at the end of the trial and are to be praised and respected for wanting to get it right.

Imagine being a student in a class you didn’t want to take and didn’t sign up for, in an unfamiliar subject, but you’re not allowed to ask questions or seek other reference material. How would you feel going into the final exam?
Thus, the most bothersome part to me was the Boston attorney who observed that the state courts permitting juror questions in more cases is “dangerous.” I’m sorry she is so fearful, but it is anything but dangerous.

The lawyer was quoted as saying: “In order for you to generate those questions, you have to be an advocate for one side or the other, and that’s where the problem comes in. You shouldn’t want a juror to be in a position to advocate for one side or the other before all of the evidence comes in.”

Wow. First of all, the hypothesis that a layperson’s questions about an unfamiliar subject upon which he is required to issue a solemn and binding decision with serious consequences must necessarily arise from advocacy could politely be called a novel theory, but more accurately, unconnected to reality.

That isn’t why jurors ask questions. They ask questions because they don’t understand something and are trying to get the job done right. We might remember that the so-called experts on the subject matter are, for the most part, excused during jury selection.

After all, a key finding from that New York study confirms previous research from the 1990s about questions: Jurors do not become advocates and do not use the questions as tools to confirm their hypotheses. We are at least 17 years into this being understood in the research. Time for lawyers, judges and state legislatures to catch up.

The Boston attorney added “that the government has the burden of proving a case, and the jurors shouldn’t be helping by asking questions that prosecutors failed to ask.”

That’s not how it works out in real life. Her comment assumes that most questions in criminal cases would help the prosecution. There is no reason to think that. I guarantee that a prosecutor would fear the reverse.

It’s just fear. If the question is, “Where was the eyewitness an hour before the robbery and what was he doing at that time?” or “When was the last time the lab tech took a class on chemical testing?” there is no reason to think it automatically helps the prosecution. It is easy to imagine ways it hurts the prosecution. Or the defense.

There’s an old saying that to get control, you have to give up control. Litigators and judges are, by and large, a little on the control-freak side.

The benefit to giving up a little control and bravely hearing juror questions before the case closes is that counsel can include tailored segments in closing, include a sub-argument on why X doesn’t matter, and reframe the case in a way that excludes or minimizes what they were asking about.

You’re in a better position to arm your favorable jurors with stuff that will help in deliberation and take some of the gunpowder out of the other side’s jurors’ ammo.

Or would it be better to just go ahead and give the closing that you wrote two weeks ago that doesn’t address issues your jurors actively care about?

The worst time to learn about juror confusion is in the courthouse hallway after the verdict, when the jury is being interviewed about why it found for the other side. Or watching the foreperson on the local news explaining why the jury found against your client.

Even if you end up objecting to a question and block it from being asked, why on earth would you not want to know what a juror is focusing on as one of his pivotal decision points?

If jurors have gaps in their understanding, they fill them in on their own. They don’t just shrug and say, “OK, I guess we aren’t supposed to consider that.” There is no reason to assume that they will gladly fill those gaps favorably to your side instead of the other side.

There are only benefits to knowing how jurors are thinking while you still have time to do something about it.

—————

Richard P. Matthews is a trial consultant in San Francisco. He can be contacted at www.jurology.com.