By Paula McMahon South Florida Sun-Sentinel
December 26, 2007
John Wyllys is confident justice was served by the jury verdict when he voted to convict in a recent murder case. But he and other jurors wished they could have posed questions to witnesses during the trial, he said.
"You'd listen as the attorneys pursued a line of questioning and you'd think, wait, there's one more question they should have asked," said Wyllys, 58, a retired investment manager from Boca Raton.
Under new jury rules that go into effect on Jan. 1 in Florida, jurors will be allowed to ask questions of witnesses in criminal and civil trials. The ability to submit questions is the most controversial of several jury reforms recently approved by the Florida Supreme Court.
The things Wyllys and his fellow jurors wondered about were not "make it or break it" matters, Wyllys said, but if they could have inquired, it might have helped to clarify some points for them. He thinks it's a good idea the law is changing.
"The jury is charged with finding the truth and, if we have questions, I think we ought to be able to at least raise questions and then the judge can decide whether it's an appropriate question," Wyllys said.
That's precisely how the new process is set up. Jurors can't just blurt out questions, but once both sides have finished examining a witness, jurors may submit written questions to the trial judge who will decide if it's a legally proper query. The judge will put appropriate jury questions to the witness.
The changes are the result of years of research, discussion, criticism and legal arguments. The state's Supreme Court initiated the effort in a bid to improve the system.
Among the other reforms taking effect Jan. 1:
•Jurors will be allowed to take notes in all trials. Their notebooks will be destroyed after a verdict is reached.
•Jurors must be given written instructions to take into the jury room with them.
•New rules are being adopted to encourage the best use of juror time.
Many judges and attorneys are wary of some of the changes. They say they understand the reasons for the reforms but are concerned that jurors' questions could turn into a legal minefield.
Broward Circuit Judge Stanton Kaplan, in his 42nd year on the bench, said it's good to give jurors more information, but he anticipates "a lot of problems."
"I think it gives an advantage to the state because they have the burden of proof," Kaplan said. "I don't think either side should have any advantage."
He said he thinks the questions could slow trials. Also, he is concerned jurors will focus on issues that are irrelevant to the evidence presented in court.
A few weeks ago, a deliberating jury sent out a note to Kaplan asking why the prosecution had not given them any income tax forms filed by an accused drug dealer. The jury wanted to see his reported income. "It seems they thought that he would file an accurate income tax form, even if he was breaking the law by selling drugs," the judge joked.
Palm Beach County Judge Barry Cohen, who has been letting jurors ask questions in some trials for about five years, said he had no problems. Recently, though, after reading new appeals, he said he had second thoughts.
"I started doing it because a trial is a search for the truth, but it may mess up the attorneys' strategies," Cohen said.
Jurors with the best of intentions, he said, may ask a question such as, "Was the defendant in jail?" The law requires a judge to answer that the question is not legally relevant, regardless of whether the person was locked up.
"How do we then prevent the jury from inferring, 'The judge doesn't want us to know the suspect was in jail,'" Cohen said.
Milton Hirsch, a Miami defense attorney for 25 years, co-wrote the "Bench Guide," a reference book many judges use. He said the rule change will encourage jurors to abandon their traditionally neutral role.
"Jurors shouldn't cross over the line and question witnesses," Hirsch said. "It cheats the system when one party meddles in and takes over the role of another."
Some questions are fraught with unforeseen problems, even for lawyers trained to ask only questions to which they already know the answers. The reasoning is that attorneys can get ambushed if they make assumptions.
Brian Cavanagh, Broward County's chief homicide prosecutor, remembers asking a witness: "How long have you known the defendant?" He anticipated the answer would be that they grew up in the same neighborhood. The witness replied instead: "Even though we grew up in the same neighborhood, I really didn't know him until we were in prison together."
The judge glared at the prosecutor, as the response could have caused a mistrial because, legally, jurors should not be told that a defendant has ever been in prison.
Research shows that when questions are permitted, jurors generally don't ask a lot of them and typically stick to appropriate issues. Studies also indicate jurors report less stress and are more attentive when they are allowed to ask questions. About one-third of states and many federal courts allow the practice, and grand jurors and military court juries have long been permitted to ask questions.
Cavanagh said letting jurors ask questions is good in principle, but he also has concerns.
"The less confusion, the better. We want the jurors to know the whole truth," he said.
But jurors, he worries, may want to ask about issues that cannot be legally raised. For example, it could cause a mistrial if a prosecutor questioned a defendant's right to remain silent or a suspect's decision to hire a lawyer. If jurors ask questions that cannot legally be answered at trial, he is concerned the defense will argue that jurors are focusing on improper issues.
Cavanagh predicted: "It's going to open a whole new area of appellate opinions."
Paula McMahon can be reached at pmcmahon@sun-sentinel.com or 954-356-4533.
"You'd listen as the attorneys pursued a line of questioning and you'd think, wait, there's one more question they should have asked," said Wyllys, 58, a retired investment manager from Boca Raton.
Under new jury rules that go into effect on Jan. 1 in Florida, jurors will be allowed to ask questions of witnesses in criminal and civil trials. The ability to submit questions is the most controversial of several jury reforms recently approved by the Florida Supreme Court.
The things Wyllys and his fellow jurors wondered about were not "make it or break it" matters, Wyllys said, but if they could have inquired, it might have helped to clarify some points for them. He thinks it's a good idea the law is changing.
"The jury is charged with finding the truth and, if we have questions, I think we ought to be able to at least raise questions and then the judge can decide whether it's an appropriate question," Wyllys said.
That's precisely how the new process is set up. Jurors can't just blurt out questions, but once both sides have finished examining a witness, jurors may submit written questions to the trial judge who will decide if it's a legally proper query. The judge will put appropriate jury questions to the witness.
The changes are the result of years of research, discussion, criticism and legal arguments. The state's Supreme Court initiated the effort in a bid to improve the system.
Among the other reforms taking effect Jan. 1:
•Jurors will be allowed to take notes in all trials. Their notebooks will be destroyed after a verdict is reached.
•Jurors must be given written instructions to take into the jury room with them.
•New rules are being adopted to encourage the best use of juror time.
Many judges and attorneys are wary of some of the changes. They say they understand the reasons for the reforms but are concerned that jurors' questions could turn into a legal minefield.
Broward Circuit Judge Stanton Kaplan, in his 42nd year on the bench, said it's good to give jurors more information, but he anticipates "a lot of problems."
"I think it gives an advantage to the state because they have the burden of proof," Kaplan said. "I don't think either side should have any advantage."
He said he thinks the questions could slow trials. Also, he is concerned jurors will focus on issues that are irrelevant to the evidence presented in court.
A few weeks ago, a deliberating jury sent out a note to Kaplan asking why the prosecution had not given them any income tax forms filed by an accused drug dealer. The jury wanted to see his reported income. "It seems they thought that he would file an accurate income tax form, even if he was breaking the law by selling drugs," the judge joked.
Palm Beach County Judge Barry Cohen, who has been letting jurors ask questions in some trials for about five years, said he had no problems. Recently, though, after reading new appeals, he said he had second thoughts.
"I started doing it because a trial is a search for the truth, but it may mess up the attorneys' strategies," Cohen said.
Jurors with the best of intentions, he said, may ask a question such as, "Was the defendant in jail?" The law requires a judge to answer that the question is not legally relevant, regardless of whether the person was locked up.
"How do we then prevent the jury from inferring, 'The judge doesn't want us to know the suspect was in jail,'" Cohen said.
Milton Hirsch, a Miami defense attorney for 25 years, co-wrote the "Bench Guide," a reference book many judges use. He said the rule change will encourage jurors to abandon their traditionally neutral role.
"Jurors shouldn't cross over the line and question witnesses," Hirsch said. "It cheats the system when one party meddles in and takes over the role of another."
Some questions are fraught with unforeseen problems, even for lawyers trained to ask only questions to which they already know the answers. The reasoning is that attorneys can get ambushed if they make assumptions.
Brian Cavanagh, Broward County's chief homicide prosecutor, remembers asking a witness: "How long have you known the defendant?" He anticipated the answer would be that they grew up in the same neighborhood. The witness replied instead: "Even though we grew up in the same neighborhood, I really didn't know him until we were in prison together."
The judge glared at the prosecutor, as the response could have caused a mistrial because, legally, jurors should not be told that a defendant has ever been in prison.
Research shows that when questions are permitted, jurors generally don't ask a lot of them and typically stick to appropriate issues. Studies also indicate jurors report less stress and are more attentive when they are allowed to ask questions. About one-third of states and many federal courts allow the practice, and grand jurors and military court juries have long been permitted to ask questions.
Cavanagh said letting jurors ask questions is good in principle, but he also has concerns.
"The less confusion, the better. We want the jurors to know the whole truth," he said.
But jurors, he worries, may want to ask about issues that cannot be legally raised. For example, it could cause a mistrial if a prosecutor questioned a defendant's right to remain silent or a suspect's decision to hire a lawyer. If jurors ask questions that cannot legally be answered at trial, he is concerned the defense will argue that jurors are focusing on improper issues.
Cavanagh predicted: "It's going to open a whole new area of appellate opinions."
Paula McMahon can be reached at pmcmahon@sun-sentinel.com or 954-356-4533.
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