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.