The old man, Gideon, at A Public Defender discusses a provocative suggestion to allow jurors, after closing argument, to ask questions.

Part of the problem with the jury system, from what I can tell in my limited experience, is not a problem with the system itself, but with how it is utilized. And by that I mean how the players in the system – lawyers and judges – employ the mechanisms. A lot of the common ills: complex laws, jurors voting their gut can be traced or blamed in part to the failure of the participants to understand the nature of the system.

We like to say that people are tried by a jury of their peers. Yet we lawyers treat these peers as if they were our own, not that of the defendant. The language we use is archaic, complicated and downright stupid and confusing. The format of the jury trial is usually a patchwork of testimony that may or may not be tied up in the end by lawyers depending on their level of competence. Sometimes, I watch trials with which I have no connection and marvel at the fact that jurors are able to reach verdicts of any sort at all.

There’s certainly little to argue with here.  Between the disjointed appearance of material evidence, stuck between requisite foundation and irrelevant background, and jury instructions that are designed to appease appellate courts despite their total lack of comprehensibility to anyone else, the expectation that jurors can fulfill their purpose is strained at minimum.

But the idea of permitting jurors to ask questions of the lawyers during closing argument – a la oral argument before an appellate bench – is an intriguing one.

It is often said that you can make or break a case in closing argument: the key piece of evidence left unexplained, the big problem with the defense untouched, leaving jurors no choice but to convict or acquit, simply because you didn’t address it. So why not take the one hour of closing arguments that most courts permit and turn 15 or 20 minutes of that into a free-flowing back and forth between the jurors and the lawyers? Let jurors ask questions about the application of the law to the evidence, explore their doubts about the meaning of evidence presented, clarify their understanding of the import of a particular piece of evidence.

For those of us who do appeals as well as trials, this captures the rationale for oral argument after our briefs are fully submitted.  Certainly, our arguments are best presented in writing, with case citations and references to the evidence to back it up and lock it down.  Our phraseology and presentation are as tightly controlled as possible, having labored over every word and phrase to capture precisely the right tone and nuance.  We’re not going to get it any better than in a brief.

Yet we argue, taking our finely honed positions and opening ourselves to the judges’ questions designed to shoot holes in our points.  The reason, at least in my view, is clear: No matter how wonderful and bulletproof we think our argument may be, we know that others, judges in this case, may see things differently.  This is our one and only opportunity to hear their misgivings and address them.  They let us know through their questions what they see as problems in our points, and we have one last shot at filling the gaps.

The problem, as Gideon notes, is that gap-filling is a two way street.  Not only would the defense have the opportunity answer questions from the jury, hearing their issues and reframing the argument to meet them.  So would the prosecution.

On the flip side, of course, a defense lawyer like myself may argue that doing so would only permit the State to fill in the gaps left by their case-in-chief and if they haven’t provided enough evidence to the jury, they should be allowed to fall on that omission. But it might also provide an opportunity for the defense lawyer to take that doubt expressed by a juror and exploit it, to drive it home and to further widen that gap in their mind.

Whether the defense can exploit the hole, “widen the gap,” is an unknown, contingent on the facts and the quality of the job done by the prosecution.  If there’s a major screw-up during summation by the other side, there’s no way in the world you want to give them a second shot at the jury, a chance to correct their error.  Different cases and situations will dictate whether this works to one sides advantage, and it’s unlikely that a general rule will ever favor one side or the other.

One problem that presents itself in Gid’s Q&A scenario is the asking of irrelevant, immaterial or “curiosity” type questions that call for background information which would otherwise be inadmissible.  For example, what if a juror asks whether the defendant, who did not testify, was ever convicted of a crime before?  Sure, the judge could “admonish” the juror that it’s an improper question, but once the notion is put out there, leaving it unanswered has a huge potential to taint the jurors imagination.

Still, summations present an inherent challenge in our ability to effectively communicate our message to a diverse group.  As communication is both sending and receiving, it’s often impossible to know whether the message sent was adequately received.  We don’t know, despite all the voir dire gurus, whether a juror is capable of understanding.  Talk too simply and we risk insulting jurors who get it, who feel as if the lawyers are treating them like morons.  Make complex arguments and risk jurors having no idea what you’re talking about.  Do both and bore the crap out of the jury until they stop listening altogether.  It’s a problem.

The idea of allowing jurors to ask questions isn’t novel, and is usually coupled with having the judge vet the questions before passing them along to the lawyers to answer.  That requires a judge to do both a decent job in playing it fairly, by not favoring questions that help either side, and to handle inappropriate questions in a way that doesn’t exacerbate any problems caused by inappropriate ideas floating around the jury room.  On the other hand, even without a Q&A opportunity, jurors may have some peculiar ideas about what they just witnessed, and what they didn’t, in reaching a verdict.

Like most, I want to hear from the jurors after a verdict to better understand what happened.  My experience is that juries rarely decide a case for the reasons anticipated by either side, almost invariably going down a different path than the one urged by prosecution or defense.  Sometimes, their reasoning is so bizarrely irrational as to make a lawyer wonder why we bother with the exercise of a trial at all. 

Through a Q&A, we would have the chance to learn where their thoughts are taking them and address concerns or, if they are veering way off course, try to get them on the path we think best.  It carries significant risks, but the risks apply to both sides under different circumstances.  The one benefit that appears fairly clear is that it might help lawyers to understand where their communications fell short and failed to complete the send/receive cycle. 

Whether this will inure to the benefit of the defense is an open question, but it’s likely to help juries reach better-reasoned verdicts.  And it wouldn’t hurt if we were permitted to argue jury nullification as well.