A jury of (and inquisition by) your peers
There’s something new under the Colorado summer sun. Beginning July 1, jurors in criminal cases are allowed to submit written questions to the trial judge to be asked of witnesses during trial. You may have first caught wind of this when Judge Ruckriegle recently announced that he would implement the new rule in the Kobe Bryant case. His announcement sent reporters scrambling to ask a plethora of experts, “Is this normal?” Well, no, but … yes. Under new Rule 24(g) of Colorado Rules of Criminal Procedure, commencing July 1, such device is procedurally permissible and will likely, except in unusual circumstances, become the norm.Colorado Rules have allowed juries in civil trials to submit written questions for the trial judge to ask witnesses at civil trials for the past year and, apparently, that duck has floated without any major glitches, de-featherings or breachings, thus encouraging the new rule in criminal proceedings. Providing a mechanism for jurors to have their questions asked are among the innovations (along with a grab bag of others) that are at the vanguard of positive jury reform in our nation’s courts and, in many ways, Colorado has led (or at least joined in) the charge.In implementing the new rule, the trial judge maintains the discretion to “…prohibit or limit questioning in a particular trial for reasons related to the severity of the charges, the presence of significant suppressed evidence or for other good cause.” In other words, the ability of jurors to submit their questions to the judge for presentation to witnesses is not automatic and it remains to be seen how widely this new device of jury interaction will actually be employed. It is believed by legal scholars, however, that juror questions will in short order become a mainstay of the trial process. In order to assure that the questioning is germane, the judge will screen all jury questions for relevance, appropriateness and for conformance with evidentiary requirements.In a report (known as the Dodge Report) first commissioned by Chief Justice Mary Mullarkey in 2000, (yes, the chief justice of the Colorado Supreme Court’s name really is “Mullarkey”), a pilot study concluded that allowing jurors to ask questions at trial will have “…a positive effect with few detrimental results.” Further, jurors in the pilot program reported greater satisfaction with the trial process as well as greater confidence in their decision. Simply, by having their questions asked, the jurors felt more satisfied that the conclusions they reached were just. The report found, too, that such jury interaction kept the jurors more attentive and engaged and decreased the public perception that in reaching its result the jury was deluded, confused or persuaded by attorney sleight-of-hand or courtroom theatrics.Of course the goal here is not only to keep the jury more fully engaged and to help raise the public esteem of the judicial system but, ultimately, to facilitate the jurors’ understanding of the case and to aid it in its quest for the truth. In the last analysis, the zealotry and gamesmanship of opposing counsel notwithstanding, what a trial really is is the act of separating the chaff of posturing and fiction from the wheat of truth and justice in order to arrive at a just and equitable result.One of the fears which was allayed by the pilot program was whether jury questioning would dissuade a defendant from testifying or in any way cause prejudice either to the accused or to the prosecution. The Dodge Report bore out that it does not. Another benefit revealed by the pilot program was that jury questioning gave counsel a “head’s up” as to issues of fact and law that the jury was failing to comprehend. It is far better for the attorneys to know what the jury isn’t “getting” while the trial is still under way – and the opportunity exists to set the record straight – than for the jury to reach its determination based upon one or more misunderstandings.The context of the new rule should be understood within the greater context of our changing society where “paternalism” in all its forms and guises has rightfully fallen out of favor. Think, if you will, of the former god-like status of medical doctors of just a generation ago and how medical care has since evolved to be more a cooperative undertaking between doctor and patient. In the same way, the new Rule 24(g) encourages jury participation rather than relegating jurors to the role of passive observers and so doing is a new, overdue and welcome paradigm in the law.To borrow the observation of the legal scholar and writer, Jefferson District Court Judge Leland P. Anderson, in quoting from Abraham Lincoln’s Gettysburg Address, judicial reform, in general, and Rule 24(g), in particular, provides the public with reassurance that “…our criminal justice system remains first and foremost ‘of the people, by the people, and for the people.'” Rule 24 (g) takes a least another small but meaningful step in that direction.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Mr. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be reached at 926-4461 or at his e-mail address: email@example.com
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