Asked and Answered

At his blog (which is fortunately not within the ambit of the Second Circuit), Nebraska federal Judge Richard Kopf asks a “simple” question.

Should jurors in criminal or civil cases be allowed to ask questions of witnesses during trial?

There are such things as simple questions. Chocolate or vanilla?  One lump or two? The question asked by Judge Kopf was not a simple one, which he no doubt knew since he had already decided it for himself.  But since he blegged for a simple answer, one came from no less thoughtful a guy than Jeff Gamso.  Judge Kopf summarized Jeff’s thoughts:

As Jeff Gamso, a very experienced criminal defense lawyer, stated in his comment (October 30, 2013 at 10:13 am) we have an adversarial, rather than an inquisitorial, process. Jury questioning can (and does) change the nature of the process.

The summary doesn’t do justice to Jeff’s comment.

While questions from the jury might provide useful insight to the parties – knowing what the jury is thinking can help them tailor their presentations – and might make the jurors feel better by having at least some of their questions resolved, juror questions turn the jurors not into advocates necessarily but into investigators.  We tell them not to go to the scene, not to conduct research, not to investigate.  Then we let them ask questions and undercut the force of those commands.

There are reasons a lawyer might wish not to bring up an issue or ask a question.  The juror might want to know, and it might be admissible information. It’s still not the jury’s call.

Judge Kopf then related the thoughts of a juror, who writes about how the jury sees holes and wants them filled. He responds:

Put bluntly, “filing in holes” in the evidence is not the proper function of jurors, so say I.

Don’t blame the juror for mistaking his function. We toss about the platitude that trials are a “search for the truth.”  It’s a lie. It’s the sort of lie that makes people feel more comfortable with the system because it comports with our branding of the legal system as a system of Justice.

People like justice, though few have given it enough thought to realize what a ridiculously meaningless word it is.  Still, they clutch it to their breast and hang on for dear life, because they couldn’t survive a system that produced merely results, because justice is too ephemeral for any court to produce.

So we’ve sold them this “search for the truth” nonsense and they bought it. Given this, it’s completely understandable that jurors want to fill in holes. After all, if it’s a search for the truth, then unfilled holes are intolerable.

But trials aren’t a search for the truth.  To suggest they are is to shift the burden to the defense to do its part in arriving at the truth.  As another platitude of little meaning provides, the burden of proof beyond a reasonable doubt always remains on the prosecution.  The two can’t be squared.

A trial, at its very best, is a test of the prosecution’s accusations.  Can they prove what they claim?  Can they prove it enough to get a jury to convict?  The role of the defense at trial is to do whatever the law permits to prevent this from happening. If the defense has evidence, they can present it. If not, they poke holes, throw punches, sometimes even blow smoke.

The prosecution will employ tactical measures to ensure it presents its case in the most damaging possible fashion.  The defense will employ tactical measures to undermine the prosecution’s tactical measures.  In a search for the truth, we tell all and let the chips fall where they may. Does this sound like any trial you’ve ever done?

Nobody, but nobody, wants to conduct a search for the truth. The prosecution wants to convict. The defense wants to acquit. The judge wants to get a verdict and the jury wants to believe it did the right thing.   It’s not to suggest that the prosecution doesn’t believe in the righteousness of its cause. I would suggest that most of the time, they do.

The defense has no similar responsibility to “do justice,” but rather is duty bound to defend regardless of the truth. At the same time, that doesn’t mean the defense doesn’t have a far better claim to the truth than the prosecution.  They just don’t have the same burden to prove it or the evidence (and access to evidence) as the prosecution.

Judge Kopf answers his “simple” question by stating:

There you have it. I don’t allow jurors to ask questions orally or in writing.

I agree with his decision, not that he cares.  The jury gets to watch a battle between two sides play out in front of them, and then gets to decide one lump or two.  They can search for truth in church.  In a courtroom, the only question is whether the prosecution has satisfied its burden of proof.


11 comments on “Asked and Answered

  1. Pingback: What does justice mean to you? | Jake DiMare

  2. Jim Majkowski

    I note that Judge Kopf reserves the right to ask questions himself, citing “legal training” as a basis for distinction. Why that entitles him to alternate between umpire and player he does not explain, nor does he express concern that a juror may well regard the judge’s question as especially significant, even possibly implying mischief on the part of the interrogator who missed the nuance the judge is bringing forth. As for a search for the truth, or for (even more elusive) justice, there is a (perhaps apocryphal) anecdote concerning iconic SCOTUS Justice Holmes, whose acquaintance, upon parting, called to him in his carriage, “do justice!” Holmes stopped the driver, summoned the acquaintance, and said, “sir, that is not my job. My job is to see the game is played according to the rules.”

    (apologies to those who regard CJ Roberts’s baseball analogy to have been disingenuous)

    1. SHG Post author

      The question of whether judges should insert themselves between the warring sides is a separate issue. Most lawyers I know prefer the judge keep his nose out of it, as he’s more likely to side with the prosecution (both because they tend to need help more as they’re less experienced plus there is the inherent bias in their favor) and when the judge does wrong by prejudicing the jury with some ill-conceived, intemperate statement, there isn’t much you can do about it. Fighting the prosecution is one thing. Fighting the judge is like teaching a pig to sing.

  3. Andrew

    From my very limited experience, it’s already hard enough to answer when jurors ask questions of the judge during deliberations. Have to be very careful how you decline to answer certain questions without tipping them off to something they’re not supposed to know. Why make it harder to control what juries can know about a case?

  4. jakee308

    The jury system has strayed quite far from it’s medieval usage. And not for the better, imo.

    What it has essentially evolved into is a panel of literary critics with a bit of personality weighing thrown in.
    Don’t like the prosecutor (for whatever reason); not guilty.
    Smarmy defense; guilty
    Incoherent (but factual) or disjointed explanation of events; hung.

    And it all depends on the oratorical and organizational skills of a personable stranger who seems sincere and serious but who is juggling a pile of cases so as to give themselves some hope of making their Beemer payment. (or ascending the political ladder)

    Who cares about the defendant? (unless he’s had the bad judgment or lack of means to appear in ill fitting or inappropriate attire or perhaps has some unfavorable physical characteristics bequeathed to them by a callous mother nature then that too becomes a factor in the verdict.)

    Seems the facts and the pursuit of truth are sidelined these days. (and let’s not forget about the grease of the current system, the plea bargain. A heinous mental torture applied to first timers that Torquemada would’ve admired and is assuredly undermining the respect by laymen for the process and increases the cynical attitude by it’s victims both innocent, guilty and it’s applicators.)

    Top that off with the press ganging of citizens onto that panel. Forcing many who are ill situated to afford taking any time away from their pursuit of the means for survival of themselves, family and employees then entombing them in some airless, windowless and uncomfortable cell and forced into close proximity with a bunch of strangers many of whom have disturbing or disgusting habits of hygiene and/or personality (not unlike a holding pen at a jail).

    Occasionally freed to another dusty, musky high ceilinged dungeon (though usually brighter lit and complete with frowning guards in uniform) to be interrogated about their every foible or opinion by some civil servant with an attitude and some swank slick LLD practitioner with the look of a down at heels con man, overseen by some pompous frowning figure who appears to be late for something more important or at least more interesting.

    And yet there are those who still try to claim that our system of law is the best.
    Better than Zimbabwe maybe. Or even France. But the best?

    I have my doubts that much justice or even fairness emerges from those circumstances.

    For anyone.

  5. LTMG

    Criminal courts seem to more be arenas rather than places where justice might be found. That being the case, Lady Justice can replace the scales of justice with another sword.

    1. SHG Post author

      Did you think otherwise? It’s not that the end result is necessarily “unjust,” but trials are adversarial. That’s the nature of our system.

  6. Pingback: Blawg Review 325.9 | a public defender

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