Yesterday, I was looking for something on the CNN website (good luck) when I came across their recently omnipresent viewer-discretion warning about the Jodi Arias trial. Here’s a screen-grab (the big honking arrow is mine, though the station bosses might decide they like it).

CNN's Jodi Arias trial viewer-discretion warning

CNN’s Jodi Arias trial viewer-discretion warning

I’ve watched a bit of the Arias trial, but not much. Given the questions I’ve received from friends and colleagues around the country (usually beginning, “Let me get this straight …”), it’s helpful for me to know something about the case facts.

Long after those facts are adjudicated, though, the complex legal issues will be debated (probably with no viewer-discretion warning required). And even beyond that, we’ll assess the effectiveness of juror questions.

Yes, there have been a few tawdry inquiries from those colleagues around the country. But more often, I have been surprised at the number of them who have asked about juror questions: “You allow that in Arizona?”

Arizona Attorney Magazine cover, February 2001

Arizona Attorney Magazine cover, February 2001

Indeed we do, as well as note-taking and some other semi-unique elements.

The number of juror questions posed in this trial may be remarkable, but the fact that they may inquire at all has been a part of Arizona jurisprudence for a long time now.

For some background on that, you should read “O Pioneer,” our 2001 article about then-Judge Michael Dann. He and others were leaders in initiatives to transform the jury process. Other states have participated, but Arizona was (and is) a leader.

Posted on their website, the Arizona Supreme Court has the remarkable original report (from 1994 and 1998) called “The Power of 12.” It’s in two parts, here and here. It was drafted by the Court’s Committee on the More Effective Use of Juries.

For more recent coverage of courts that permit juror questions, go here. As the story opens:

“A small number of states have changed their laws and court rules to allow jurors to ask witnesses questions, either orally or in writing through the judge. Written questions submitted in advanced allow attorneys for both sides to make objections based either on the ground they would violate the rules governing the admission of evidence or would result in prejudice against their clients.”

Michael Dann, former Judge on the Superior Court for Maricopa County

Michael Dann, former Judge on the Superior Court for Maricopa County

“The states that expressly encourage judges to allow jurors to question witnesses are Arizona, Arkansas, Florida, Indiana, Iowa, Kentucky, Nevada and North Carolina. Out of these jurisdictions, Arizona, Florida, and Kentucky require that judges allow jurors to ask written questions. The respective highest state courts of Indiana and Kentucky have ruled jurors have a right to ask questions of witnesses.”

But changes like this can lead to unpredictable results. You should read this Washington Post story from 2007, titled “Jurors’ Queries Yield Insights—and Laughs,” which opens with a humorous anecdote showing that jurors may focus on areas that counsel may find irrelevant:

“Former New York Times reporter Judith Miller was on the witness stand yesterday and a juror wanted to know why she had decided to go to jail for 85 days before agreeing to testify about her conversations with I. Lewis ‘Scooter’ Libby.”

“Another juror had a different kind of question for Miller about her notes from a conversation with Libby: Was storing notebooks in a large shopping bag under her desk her standard method for saving her notes?”

“So the jurors asked.”

For trial lawyer readers, have you found juror questions to be a feature that improves the process? Have you found queries annoying? Or have they given you an opportunity to clarify issues that may be blocking a jury decision?

Write to me at arizona.attorney@azbar.org.

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