Having just vented about the Ferguson, MO pundits and quasi-experts, I would like now to turn to a more esoteric topic. In the past few decades, there has been what I consider to be an invidious practice creeping into criminal trials: the practice of allowing jurors to ask questions of witnesses.
The way a witness testifies is like this: The witness takes the stand and is sworn. The witness is asked questions by the proponent of his testimony and is then cross-examined by the adversary. The proponent is then allowed to ask follow-up questions called re-direct examination. As far as I can tell, this has been the practice throughout the history of the common law. It has served the law well.
Failing to heed the precept “if it ain’t broken, don’t fix it”, an increasing number of judges have been permitting jurors to ask questions of the witnesses. After the attorneys are through asking questions, each juror is allowed to write proposed questions and submit them to the judge for review. The judge then goes over the proposed juror questions with counsel, who may make objections. The judge then rules which ones to ask the witness. Some judges allow the attorneys to then ask additional questions based solely on the answers given to the jurors’ questions.
This is a bad idea. Let me repeat: this is a bad idea. I may be spitting into the wind here, but it is a bad idea I am going against the tread, swimming against the current as it were, but allowing jurors to ask questions of the witnesses is a bad idea. Did I say bad idea? I meant to say very bad idea. Get the picture.
It is the function of the jury to decide the facts of the case in an impartial manner. It is the function of the lawyers to elicit evidence such that the jury will find the facts in favor of the lawyers’ clients. The two functions must not merge. Inviting the jurors to participate in the lawyers’ function blurs the important line between the lawyers’ role and the jury’s role. Permitting jurors to ask questions of the witness invites the jurors to become proponents of the evidence and not judges of the evidence.
Furthermore, a juror has a personal stake in the answer to the question he or she propounds. If the juror likes or dislikes the answer the witness gives or the manner in which the witness gives the answer, that answer may be given undue weight, not because of the substance of the answer, but because the manner in which it was given offended or flattered the juror who asked the question.
Finally, a juror whose question was not asked because it was objectionable, might take offense or feel disrespected. That juror might find it more difficult to act in a collegial manner with his fellow jurors in assessing the evidence and in reaching a verdict.
Bad idea. Repeat. Bad idea. One more time, bad idea.