We finally get to ask questions.

take notes, and knock around

the evidence. JUSTICE will

never again be the same!

By: William Ecenbarger

I T WAS AN ORDINARY TRIAL, and it unfolded in an ordinary fashion—until one of the witnesses was about to leave the stand. That’s when Judge John Leopold turned to the six men and six women on the panel and asked, “Does any member of the jury have any questions?”

After one physician testified, Cynthia Bauman was puzzled. The plaintiff, whose car was struck by another vehicle, wanted compensation for lost wages, claiming that a broken ankle would limit the hours she could work. But neither attorney had asked what seemed an obvious question

Burning Questions

Jurors can now raise issues that puzzle them.

Bauman raised her question, which the bailiff handed to Judge Leopold. He met briefly with the lawyers. Then he looked up and asked, Given the X-ray evidence of bone chips in her ankle from an older trauma, “what convinces you the accident is the source of her ankle trouble?”

Though the doctor said the bone chips wouldn’t suggest the pain and tenderness reported by the patient, the jury rejected the woman’s claim. The plaintiff has appealed.

Switching On a Light

What happened in Colorado’s Arapahoe County District Court in March 1999 is one example of profound changes that are coming to the American jury system. Today, August 2000, most of the two million people who serve on juries each year still sit in passive silence until final deliberations. It’s been that way for centuries. Now, finally, spurred partly by growing dissatisfaction among jurors themselves, reform is in the air.

In more and more courtrooms, judges allow jurors to take notes; in some, they can question witnesses. They’re even being allowed to discuss evidence among themselves while the trial is under way. “I’ve served on juries that were not allowed to ask questions, and I can tell you there’s a huge difference, Colorado juror Cynthia Bauman tells the Reader’s Digest. “It’s very frustrating to sit there with a question and not be able to ask it. We got to clear up things that were confusing us, and that’s basically how we reached our decision.”

Jurors typically submit questions in writing to a judge, who screens them for relevance and appropriateness, and the lawyers are free to object. But Portland, Ore., Circuit Judge Robert P. Jones goes one step further. He permits jurors in civil cases to directly question witnesses-even in the middle of their testimony- usually by raising their hands and being recognized. Attorneys who object to the question flip a switch, blinking a light on Jones’s bench. “When I started this in 1996, four years ago, I was concerned that some outburst by a juror would cause a mistrial,” Jones says. “That’s never happened, and no case in my courtroom has even yet been appealed on the basis of a jury question.” According to Jones, questions from jurors add about one hour to the length of a one-week trial. “Typically, they want specifics,” he says, noting that jurors commonly ask experts to define technical terms.

District Judge Ken Curry of Tarrant County, Texas, says that most jurors in his courtroom ask questions seeking basic information. “In medical-malpractice cases, for example, there can be a lot of expert testimony, involving terms outside jurors’ general vocabularies. Clarity is also cited by note-takers. Nancy Johnson, for example, served on a Baton Rouge, La., panel considering the complaint of a woman whose car was struck by a school bus. “There was a lot of medical testimony on videotapes, and it went on for hours,” she says. “I don’t know how I could have kept track of everything without notes.”

Johnson adds that about half of her fellow jurors took notes. “Interestingly, it was the note-takers who wanted to give her a modest award and the others who wanted to give away the farm.” After a six-day trial, the woman was awarded a fraction of the damages she requested.

Noteworthy Evidence.

The judicial ban on note-taking is actually a relic of the days when many jurors were illiterate. The feeling was that educated jurors might dominate deliberations. Things have clearly changed, and because jury note-taking and questioning seem to help the panel understand issues better, the American Bar Association has endorsed both, at least in civil trials.

There is no such consensus in criminal law, because the credibility of witnesses is often critical. “Many attorneys fear jurors will be so busy taking notes they’ll overlook facial expressions or tone of voice,” says Joseph Bottitta, former president of the New Jersey State Bar Association. Larry Pozner, immediate past president of the National Association of Criminal Defense Lawyers, agrees. “Taking notes could distract jurors from evaluating the truthfulness of the witness.” It’s a legitimate concern, but none of more than two dozen jurors inter viewed around the country by Reader’s Digest said note-taking had hindered them. Indeed, they indicated it heightened their awareness. “There was no distraction,” says Richard Neblett, who served on a criminal case in New Jersey in 1998. He used about six pages of a yellow pad to jot down important points, especially about the demeanor and testimony of two prosecution witnesses, which conflicted sharply with the testimony of the defendant. “There is no doubt in my mind that you’re a better juror,” says Neblett, who has served on juries where the practice was not permitted. “The notes stimulated my recollection of the facts during the deliberations, showing me contrasting testimony and corroborating testimony.” Fellow juror Penelope Robbins agrees. “I was in no way impeded in following the trial by the notes, she claims. “In fact, I was more alert.” I the end, the jury, who all took notes, according to Neblett and Robbins, apparently believed the two witnesses and not the defendant- police officer charged with sexually molesting two teenage girls. The officer was sentenced to four years in prison. The conviction has been appealed.

The Man on the Balcony.

Tony Shinn reports the same reaction after a criminal trial in the Oklahoma City courtroom of Superior Court Judge Niles Jackson. “That was the third jury I had served on, and the first that allowed me to ask questions,” he says. “I found myself paying more attention than before. I felt more involved and more responsible.” Judge Jackson presided over another trial in which a man was accused of burglarizing a car in a motel parking lot. Minutes after the crime, the defendant -who was not a guest-was arrested on the second floor of the motel. A security camera showed a man in a hat, and wearing a fanny pack, burglarizing the car. As the investigating officer was about to get off the witness stand, a juror asked, “What was the man on the balcony wearing?” He said , ‘A black baseball cap.” The judge asked if he remembered anything else, and the officer said, “The little bag that attaches to the waist.” The jury voted to convict.

These kinds of questions raise the hackles of criminal-defense attorneys. “The burden of proof is supposed to be on the prosecutor,” notes Carrie Lynn Thompson, of the Denver Public Defender’s Office. “If a juror asks a question that the prosecutor has neglected to ask, that juror is assuming a prosecutorial role.” Retorts Joseph P Nadeau of the New Hampshire Supreme Court, “My answer to that is ‘What are you interested in, winning your case, or justice?’

Actually, juror questions don’t necessarily favor one side or the other. Judge Thomas Barland of Eau Claire, Wis., tells of a case involving illegal possession of a tear-gas grenade. When the state introduced the grenade as evidence, a juror asked if the prosecutor was certain there had been tear gas inside. The state could not prove there had been. The case was dismissed because possession of an empty grenade was not illegal.

Justice Nadeau believes that asking questions helps get at the truth. “In a trespass dispute in a colleague’s court,” he says, “neither lawyer asked whose name was on the deed, but the jury did.” In another case, involving a driver whose vehicle was struck when he pulled onto the street, Nadeau says “both lawyers spent a lot of time questioning witnesses and drawing out evidence to support their client. The jury wanted to know if there were any parked cars to obscure the plaintiff’s view. There were, and it resulted in a small award. Had the jury gone into deliberations without asking this question, it could never have been answered.”

David Gottesman was initially uncertain about juror questions, but that was before the Nashua, N.H., attorney argued a case in which questions were allowed. “I’m still lukewarm, he says. “But my personal experience was good. The questions were good. Where it can really help is if a question hasn’t been asked by the lawyers and the jury is wondering about a particular issue. If the jury doesn’t know the answer, it can try to fill in the blanks.”

No Longer Taboo.

The most astonishing jury reform began late in 1995, when Arizona gave jurors in civil trials the right to discuss cases among themselves while the trial is proceeding. There’s an ancient taboo against allowing these conversations, growing out of a worry that jurors will talk themselves into a decision before hearing all the evidence.

Nevertheless, recently retired Superior Court Judge B. Michael Dann says this taboo seemed “unnatural, unrealistic and unwise.” Jurors have told him their discussions increased their understanding and recollection of evidence. They also said they talked about cases anyway-whether allowed or not-over lunch, in car pools and so on. Better, Dann and fellow judges decided, that jurors be allowed to do so under controlled conditions. Cristina Hatton, a juror in a three-week medical-malpractice trial in Phoenix, Arizona says discussing the case did not cause her colleagues to make up their minds too quickly. “There was enormous respect for the fact that we were allowed to do this,” Hatton says. “I think everyone was very conscientious s about not prejudicing their thinking.”

It will be quite some time before jury discussions become the norm. Still, Colorado is now allowing them as an experiment, in certain courts, in the year 2000. In some states-such as Virginia, Ohio and Massachusetts-jury empowerment is happening piecemeal, courtroom by courtroom. In others-like New Hampshire, Colorado and Arizona-changes have been permitted by the state supreme court.

Arizona has gone the furthest allowing note-taking, juror questions and pre-deliberation discussions. “It was all very controversial in the beginning, and there are still some doubters,” says Judge Dann, who headed the reform effort. But the feedback he’s gotten from the jurors themselves is “overwhelmingly positive.” And the attorneys? “They’re adjusting,” he says.


READER’S DIGEST, August 2000, (pgs. 129-133)

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