It seems to be in vogue with some trial judges currently to allow jurors to ask questions of witnesses after both sides of the litigation are finished asking their questions. This is currently a hot topic due to the Tex McIver trial, currently being tried in the Fulton County Superior Court in front of Judge Robert McBurney. Judge McBurney, rather famously, permits jurors to ask questions of witnesses after questioning by the prosecution and the defense counsel. Presumably, Judge McBurney allows this practice in civil cases as well as criminal cases, although Superior Court doesn’t see as many civil cases as criminal. All felonies in Georgia must be tried in Superior Court. The practice of Judge McBurney allowing witnesses to ask their own questions was discussed extensively before the trial in a podcast produced by the AJC called Breakdown. It is hosted by veteran legal affairs journalist Bill Rankin and I highly recommend it. In that podcast, defense counsel Bruce Harvey gives his opinion on why it is not only a bad practice to allow jurors to ask questions, but, also, why it is probably unconstitutional. For example, we all know that the 5th Amendment of the Constitution gives a criminal defendant the right to remain silent, even throughout the trial, so that the government must prove guilt beyond a reasonable doubt without any assistance from the defendant. Harvey, rightfully, preposes the hypothetical of a juror asking “Why didn’t the defendant take the stand to tell us what happened?” Of course, the judge is not going to permit that question to be answered, but the jurors (or at least the one juror who asked that question) will know the judge didn’t approve it and wouldn’t permit it to be answered, and the bias that answers “why” is naturally because the defendant must be guilty. So simply by denying that juror’s question, the 5th amendment constitutional right is implicated and violated because it was allowed even to be raised in court.
There has lately been alot of discussion in social media about this among lawyers, too. You can find some of this discussion on Twitter at #texmciver and in the comments on Facebook where WSBTV is livestreaming the trial. If I were to take a poll, I think the vast majority of trial lawyers is against the practice for the reasons stated above. Also, other websites are livestreaming the same WSBTV feed, like wildabouttrial and lawandcrime. Both of these websites have a comments section where viewers can post their comments about the trial. It is pretty fascinating, especially for court enthusiasts like me. On Facebook, there have been some thought-provoking comments about allowing jurors to ask questions of witnesses. Below are just some of the comments I have seen:
“I think there are two questions that judges should ask themselves before considering this. 1). Why would I allow jurors to ask questions? Whatever the answer is (to help the jurors clarify any issues that the holder of the burden of proof has not clarified, etc). 2). If I am am being a neutral, unbiased referee, should that matter to me?”
“Seems like Judges don’t want to be the referee. They want to move the scale for whichever side they are inclined (often the state), but often we can’t nor should we let the jury ask questions in a criminal
“Respectfully, I will add my 2 cents. I have tried a case where the judge allowed the jurors to ask questions. It turned a 1 week trial . . . into 2 weeks. As long as judges understand that it will delay and slow down the judicial process, I am fine with it. If every judge allowed it in every trial, it would double the backlog of cases, and put even more pressure on the State to offer better deals. So in theory, there is an intangible benefit to having jurors cross examine witnesses (through the court). As a pratical matter, it serves to detiorate the 5th Amendment, and the rules of evidence. Jurors get frustrated because most of the questions they ask are not allowed under the rules of evidence.”
“I wonder what jurors make of the questions they submit that aren’t asked. Seems like that could lead them to speculate about what the answer might have been and why they weren’t allowed to hear it.”
“How does this NOT raise constitutional quesitons, especially about a Defendant’s 5th Amendment right not to incrimniate himself? When a juror asks something like “where was the defendant on the night of the murder?” and the judge says, “Sorry, we can’t allow that question to be asked,” guess what the jurors will think? That the Defendant is G-U-I-L-T-Y. It just can’t turn out well.”
“If the jury has questions the State hasn’t answered at trial after the State has presented their case, then there is likely a doubt as to whether they’ve carried their burden. Furthermore, allowing the jury to ask questions the state has missed or ignored may unwittingly shift the burden of proof to the defendant to respond, present evidence or implicate their right to remain silent. The state doesn’t need any help to convict my clients. Moreover, when a judge helps decide what questions are to be asked, he or she is improperly commenting on the evidence. If you want to be a judge, judge. If you want to decide what questions should be asked, take off the robe, pick a side and come in the pit and ask them.”
“It is clear the State has the burden, if they have not carried it in their presentation the court MUST acquit. Leaving questions in the jury means that the State has failed to carry their burden. The remedy for the State is to run more focus groups and prep cases thoroughly (and stop wasting resources in bad cases) rather than for the Judge to give them a boost from the bench. This is dangerously realigning the role of the Judge as a Backup Prosecutor rather than an independent arbiter. If questions are allowed, can we start allowing more evidence of State Misdeeds in?
Or maybe put Brady Duties on something more firm than “the honor system.””
“I couldn’t agree with that anymore. What if a jury wants to know if the defendant gave a statement to police and as it turns out that statement was actually suppressed. If all the sudden you are no longer answering a question that the jury is asking they will read between the lines that he did give a statement and that they’re not allowed to hear it and that is prejudicial against the defendant.”
“When we start(ed) bending the rules to make the State’s job even the tiniest bit easier, we are putting thumbs on scales. Remember, it’s not convictions how we measure prosecutors, but Justice. Abrogating part of their Constitutional Duty by adding a new (wildly unevenly applied) tool is dangerous.”
Now that you have looked at it from that point of view, pretty interesting, isn’t it?
And what about the Rules of Evidence? Lawyers are trained in the Rules of Evidence, what is admissible and what is not. They spend hours and hours preparing for a trial by making sure every question they ask and every piece of evidence they attempt to put in is admissible and conforms to the rules of evidence. They file motions in limine to keep certain evidence out, because for various reasons it may not be admissible under our Georgia Rules of Evidence. If the judge has granted those motions in limine, that means there shall be no mentioning of that information at all during the trial. What if a juror then asks a question that has already been ruled inadmissible by the judge? The judge cannot permit either side to answer it, and the jury is left thinking that information has to hurt one side or the other. They fill in the blank of the unanswered question with whatever bias they brought with them to the courtroom. Does an attorney now have to move for a mistrial? Or take the risk that it didn’t hurt your client?
In a civil trial, certain information has been ruled by our Georgia appellate courts to be inadmissible as a matter of law and that admitting evidence of certain facts would violate a party’s constitutional rights to a fair trial. For example, if a defendant doctor has malpractice insurance that would cover any verdict against him/her in a medical malpractice case, the jury is not permitted by law to know about that, to know that if found negligent the doctor faces no personal exposure whatsoever because he has a professional liability policy that not only will cover any verdict against him/her, but also paid for his lawyer. But what happens if the jury asks “Does the doctor have malpractice insurance?” The judge can’t allow either party to answer that question because it would cause a mistrial. But leaving the juror’s question unanswered may suggest an answer to the jury, even if that suggested answer is not accurate. The jury may think: “OK. They didn’t answer our question about malpractice insurance, so I guess the doctor doesn’t have any.” That may make the jury more lenient with the defendant doctor’s conduct, thinking they don’t want to be too hard on him because he can’t afford to pay a high verdict and may lose his house if they award a lot of money in favor of the plaintiff. How can that possibly be fair to the plaintiff? The short answer is, it’s can’t.
So, although it may seem “hip” to a judge to allow jurors to ask questions of witnesses, it is a practice fraught with problems, including potential constitutional violations. It surely will lengthen the trial and more than likely will result in even more litigation and additional appellate issues. It turns the notion of “judicial efficiency” or “judicial economy” on its head. I urge trial court judges not to do it. If the issue is raised at any of my trials, I intend to object.
Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 29 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.