Monday, April 23 , 2018, 12:15 pm | Overcast 60º


Diane Dimond: All States Should Allow Jurors to Ask Questions at Trial

I have sat in many courtrooms during my career and studiously watched the faces of jurors listening to evidence in cases ranging from murder and rape to assault and political corruption.

I’ve strained to see if I could get a clue from them as to what their ultimate verdict might be. It is journalistic gold to be able to report that a juror was seen crying, wincing or rolling his or her eyes in response to specific testimony. Rarely, however, have I seen a juror telegraph his or her feelings. Most appear to take their jury service very seriously.

That said, I have also caught some jurors yawning and looking bored. A few times a juror appeared out-and-out asleep and not just “resting their eyes,” as they would explain later. Nearly every juror I’ve spoken to at the finish of a case has admitted there were times during trial that they simply did not understand what was going on or the importance of certain testimony. More than one has told me it’s as if lawyers and judges speak an entirely different language than the rest of us.

I’ve always wondered why jurors aren’t allowed to play a more active role in the trial process. If we count on our fellow citizens to pass judgment, don’t we want them to fully understand the proceedings and the facts of a case?

That’s why I’ve been so entranced watching the current headline-making, televised murder trial of Jodi Arias, 33, in Phoenix. Arizona is one of the few states with a specific law giving jurors the right to ask their own questions if something isn’t clear. Panelists write down what they want to know, and if their inquiry passes legal muster, the judge poses the question to the witness. (Arkansas, Colorado, Florida, Indiana, Iowa, Kentucky and North Carolina have similar laws.)

In a rare move, the defendant herself took the stand, so jurors got to pose questions directly to Arias. She is charged with brutally stabbing and shooting to death her boyfriend, Travis Alexander, after their stormy love affair fizzled.

During her testimony, Arias described what she said was the final, furious physical attack she endured at the hands of the abusive Alexander. She says she dashed to Alexander’s closet shelf to get his gun so she could defend herself. The meek-looking Arias maintains she has no memory of stabbing her lover, yet she remembers that she cleaned up the murder scene, ditched the gun in the desert and began concocting multiple alibis — three different ones.

This jury had plenty of pointed questions for this defendant:

“How did you have time to get the gun down if he was right behind you?” Arias answered, “I just had the sense that he was chasing after me.”

“If you shot Alexander first (before the stabbing), how did the bullet casing land on blood?” Arias’ answer seemed to indicate that in the struggle the bullet casing probably got moved around.

“Why did you call the cops on your ex-(boyfriend) who shook you but you never called the cops on Travis?” Because, Arias said, her past experience with 9-1-1 was “negative.”

In all, about 200 juror questions were put to Arias. And while some, like those above, went directly to the substance of the case, many seemed almost silly, asking about Alexander’s Spider-Man underwear and why she appeared so calm in pre-trial TV interviews that were played in court.

One of the main arguments against allowing jurors to ask questions is that they might decide on a verdict based on the answers they get to their particular questions and not on the totality of evidence.

Some lawyers fret about a judge allowing an inappropriate question that is later used to appeal the verdict. Many attorneys fear losing control of their case if jurors wander into territory that flies in the face of their trial strategy. And there is always the chance that one smart-alecky juror will dominate the questioning and alienate others who might then disengage from the testimony.

Another frequent complaint? That it just takes too much time. In the Arias case, it certainly has. This trial is now in its third month! The defendant was on the stand 18 days. Her psychologist, Richard Samuels, slogged through five days as a witness. After he testified that Arias suffered from post-traumatic stress disorder and dissociative amnesia, jurors let loose with more than 100 questions for him, including this doozie: “How can we be certain that your assessment of Ms. Arias is not based on her lies?”

Last year about this time, Texas’ Chief Judge Leonard Davis heard an important and complicated corporate damages case and decided to experiment with allowing jurors’ questions. (Other states allowing this at the judge’s discretion are Georgia, Michigan and Pennsylvania.)

At the conclusion of the trial, Davis announced the questions only added about 15 minutes per witness and he saw no downside to applying the idea at future trials. Even all 11 lawyers involved reported their support and enthusiasm for the process. Independent research by professor Nancy Marder, director of IIT Chicago-Kent’s Jury Center, also concludes that when all the pros and cons are weighed, “justice is fully served when a jury is informed and understands all the mechanisms.”

It’s time for all states to allow jurors to become fully involved in the judicial process. I say it’s the very best way to keep them awake, interested and actively engaged in finding justice.

Diane Dimond is the author of Cirque Du Salahi: Be Careful Who You Trust. Contact her at .(JavaScript must be enabled to view this email address), follow her on Twitter: @DiDimond, or click here to read previous columns. The opinions expressed are her own.

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