Email
People love stories about the courts. If you doubt that, take a look at any headline news service or view any late-night TV host’s monologue.
Whether a jury’s decision was “true and right” as Clarence Darrow described it, or the product of “twelve men of limited information and intelligence” as H.L. Mencken argued, depends on which side of the courtroom you sit in. The process puzzles, fascinates, frustrates and surprises us.
One good recent example is the Jody Arias murder trial which has been going on in an Arizona courtroom for nearly three months now, and apparently will so continue for weeks into the future. In that case, Jodi Arias is charged with premeditated murder in the violent death of her boyfriend.
 |
||
|
“The jury’s experience, its touch with human affairs, and its contact with everyday society endow it with a special ability to see and know … the real facts …” - Harold H. Corbin (1928) |
|
|
First claiming innocence and asserting he was killed by unknown intruders, Ms. Arias later admitted that she had indeed shot and stabbed her lover to death. She did it, she claims, because he had been physically abusive and sexually deviant during their relationship, causing her extreme fear and trauma. She acted in self defense, she claims.
Violence, sex, and the courts. This case has it all.
One of the focal points of this media event has been the process by which jurors have been allowed to ask questions of witnesses, including and especially Ms. Arias herself. It is always somewhat risky for the accused to take the witness stand in a criminal trial. The accused has no burden to prove anything and his or her testimony can often open up credibility or background issues which can be damaging. Ms. Arias was on the witness stand for over a week, in which her attorneys tried to establish her as the victim of long-term abuse and degradation and where the prosecutor had the chance to portray her as a self-serving, cold-blooded murderer who had given several conflicting accounts of the incident.
Once the lawyers were done, the jurors had the chance to submit written questions to her. As part of an emerging trend, courts in Arizona, and a handful of states including New Mexico, allow jurors to submit their own questions to witnesses during trial.
In New Mexico, once a jury is chosen and sworn in, and before testimony begins, the judge instructs: “If you feel an important question has not been asked or answered, write it down on a piece of your note paper and give it to the bailiff before the witness leaves the stand.”
It is then the judge’s responsibility to determine whether the question is an appropriate one, just as he or she must do with the attorneys’ questions during trial. If it is, the witness is asked the question. A juror’s question, and the witness’ answer, are then an official part of the trial testimony.
In Arizona, the jurors submitted more than 200 questions to Ms. Arias. Media commentators speculated long and hard on whether the questions gave insight into a likely verdict.
Some legal authorities fear that juries will put too much emphasis on their own questions and the answers given, rather than consider all the evidence. Of course, it is possible that a jury could seize on any one particular piece of evidence in any trial, but the general consensus is that allowing the jurors to ask questions makes them more involved in the process and adds very little extra time to the proceedings.
In my own experience, both as a trial attorney and as a civil court judge, allowing the jurors to ask questions during a trial is overall quite effective both at keeping the jurors engaged and focused on the issues. Their questions can inform the attorneys on how effective they are being, and where attention might be necessary, if the lawyers listen.
While I have never had as many as 200 questions, jurors submitted more than 60 questions in a case I handled involving an insurance carrier’s denial of policy coverage. The insurer maintained the policy had lapsed 90 minutes before the accident occurred. The jury had several questions about grace periods and customer service, and similar business practices.
The process for reviewing questions with the attorneys, posing the questions to the witness, and recording their answers took only a few minutes for each question and went a long way in focusing issues in a complicated contract case. The jurors later reported the process helped keep them focused and engaged during over a week of testimony.
I believe the practice of allowing jurors to pose questions to witnesses during a trial is a positive evolution of our justice system. Many other judges and the available research support the practice as a positive development, but not everyone agrees. You can, of course, “Judge for Yourself .”
Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Malott individually and not those of the court.
