And Then The Juror Asked

"Because it's a search for truth," the Judge said.

He was speaking at the annual "bench-bar seminar," a species of continuing legal education seminars where lawyers and judges are expected to interact freely, learn from each other, get to know each other better, and pony up a fair chunk of cash for the seminar provider. He was one of the presenters that year and I a lowly member of the audience who'd gotten my hands on one of hte circulating microphones and wasn't much interested in letting it go. His words were a public response to a private argument he and I had been having for some time. (We weren't the only two, and it wasn't really all that private, but it's my blawg and I get to embellish the story the way I want.)

The actual subject of the seminar was something like improving the jury experience. Speakers offered ideas ranging from providing free parking to having jurors conduct mini-deliberations along the way so that they could talk among themselves about the evidence and reach tentative conclusions before they heard it all (an appalling idea if you think about it for even a nanosecond). More standard stuff involved giving some preliminary instructions on the law so that jurors would have some idea what they were supposed to glean from the evidence they'd hear and allowing jurors to take notes.

The judge and I could probably have argued about all of that (except maybe the parking) but our particular squabble had to do with another idea whose time has, alas, pretty much come. He thinks jurors should be allowed to ask questions of witnesses. Not like the lawyers do, but questions.

He does it roughly like this. When the lawyers are done with a witness, jurors are invited to write down on a pad any questions they have for that witness. All jurors (even those with no questions) fold their paper and pass it up to the judge. Judge and counsel huddle, and if the judge believes a question is legally permissible (sometimes as rewritten by the judge) the witness gets asked. Then the lawyers can question more based on the responses.

This is a good thing, the judge insists whenever he and I have this dust-up, because a trial is a search for truth. No, I explain to him once again, it's about proof. That's the nature of the adversary system.

The parties present and challenge evidence through witnesses, exhibits, and stipulations. The judge decides questions of law and instructs the jury on the things they must resolve, then the jury decides whether this or that party has satisfied whatever burden of proof on whatever facts are at issue. Not "Is this true?" Rather, "Is this proved?"

Put aside the elusive nature of truth as a philosophical concept. I'm using the term in the ordinary conversational sense of what actually happened, of who did what to whom, when. Forget nuance. We hope, of course, that legal proof will come close to this sort of quotidian truth. But if we're the least bit honest, we acknowledge that they're different things. And if we believe in the system we all operate under, we should acknowledge that the only evidence is supposed to be that adduced by the parties.

It may be that there's legally admissible evidence that neither party wants the jury to hear. It might, the lawyers believe, be a distraction. It might be prejudicial to their side (maybe to both sides). But jurors, if they're paying attention, might be curious. Too bad.

Or there might be the question one side or the other forgot to ask. Counsel for the other side is happy not to bring it up. But the jurors, if they're paying attention, might be curious. Too bad.

Or, heck, the permutations are endless. But the point's always the same. Jurors aren't supposed to have their curiousity satisfied. They're supposed to decide based on the evidence presented by the parties.

Over at Simple Justice today, Scott starts with a story from the Concord Monitor via Anne Reed and then spins out the harm the juror caused.

The juror who derailed a sexual assault trial in March by telling jurors the defendant was a convicted child molester agreed yesterday to reimburse the court nearly $1,200 for his misconduct.

Paul Christiansen of Danbury revealed Timothy Townsend's prior conviction during the second day of deliberations on new child sexual assault charges, according to court records. He said afterward that he had no regrets because he believed jurors need to know about Townsend's past.

The revelation forced a mistrial, and now the Merrimack County Attorney's Office has to retry Townsend and again put the 9-year-old alleged victim on the stand.

As Scott says, the juror's misconduct is severe and a $1,200 fine doesn't really touch either the financial or social costs of what Christiansen did. As he notes, Christiansen was a rogue juror (this is the second time since I went to law school that I've gotten to use that wonderful term), violating his oath by investigating the case, then violating it again by sharing the results of his investigation all because he knew better than the law. After all,

he had no regrets because he believed jurors need to know about Townsend's past.

There really is no excuse. And the judge with whom I've been arguing about jurors asking questions would have been livid. "How dare that juror indulge his curiousity in violation of his oath!" I can hear him exlaiming.

How dare that juror indulge his curiousity without my mediation!

Which, of course, I can't quite hear him saying, but which is really the point.

This isn't a new phenomenon. The internet makes it easier, but there have always been jurors who conducted their own investigations, dug up their own definitions, insisted the law (and their job) was what they wanted it to be rather than what the court did. Courts try to police those things by reminding jurors to obey. How well those reminders work is something we really don't know, though we learn of specific violations from time to time.

But as juror questions become more widespread (and I should acknowledge here that lots of trial lawyers, including criminal defense lawyers, have had happy experiences with it and think it's basically a good thing - regardless of whether it should be deemed constitutional), it strikes me that Juror Christiansen's misconduct is likely to become more prevalent, too.

Scott asks:

Anybody know how to stuff the genie back in the bottle? Anybody know how to make jurors not decide to remake the law to suit whatever strikes them as a good idea?

Good questions. Another is whether anyone knows how to get judges to stop uncorking the bottle themselves. You can't empower jurors only so far and think that they're done.

Once they start to do more than just decide questions, there's really no stopping them.