More than a year after
the Colorado Supreme Court
cleared the way for jurors
to question witnesses
in criminal trials, judges
and lawyers have warmed
to the idea.
Colorado’s courts have
phased in jury questioning
over the past decade,
starting with civil trials,
then progressing to criminal
trials involving less
serious charges. Since
July 2004, jurors have
been allowed to question
witnesses in all trials
— even first-degree murder
— unless the trial judge
prohibits questioning
based on factors such
as the presence of significant
suppressed evidence.
The phase-in has gone
more smoothly than many
expected, including 4th
Judicial District Judge
Thomas Kane.
“I really like the reform,”
he said. “The jury questions
tend to go right to the
heart of the case. They
tend to be very direct,
very to the point, and
I think that’s a good
thing.”
When jury questioning
was proposed, many lawyers
resisted, Kane said. Now,
most seem to like the
process because it gives
them clues about what
jurors are thinking, he
said.
Defense attorney Philip
DuBois was one of the
resistant ones. He said
his fears have been unfounded.
“Even in the most serious
cases, I can’t ever say
that I’ve had a client
prejudiced by questions,”
said DuBois, who primarily
handles murder cases.
DuBois previously worried
that jurors’ questions
would cause the trial
to veer into issues that
were irrelevant or had
been ruled inadmissible,
he said. But that hasn’t
been a problem because
judges screen questions
and disallow those about
suppressed evidence, prior
convictions or suspects’
refusal to answer police
questions.
“In any given case, there
are areas in which I don’t
want to go, doors I don’t
want to open,” DuBois
said. “That’s true of
both sides. The fear was
that jurors would want
to know about those things
and might feel we were
hiding things if they
didn’t get answers.”
Instead, good lawyers
use juror questions to
gauge what evidence and
testimony jurors are interested
in, DuBois said. Lawyers
can then tailor their
questioning of other witnesses
and their closing arguments
to jurors’ expectations.
Deputy District Attorney
Diana May said prosecutors
also have found juror
questions useful.
“Jury questions are a
very progressive, effective
tool,” she said. “They
help both sides know where
the jury is focusing,
and they help you realize
if you missed a point.”
May has tried at least
a dozen cases in which
jurors were allowed to
ask questions. She said
based on her experience,
judges allow at least
75 percent of the jurors’
questions to be asked.
Fourth Judicial District
Judge David Miller, a
former prosecutor and
defense attorney in the
Air Force, said he was
disappointed to see that
the civilian courts did
not allow jurors to ask
questions when he switched
to civilian law in 1988.
Military courts have long
allowed jurors to question
witnesses, he said.
“I think it benefits the
system because it keeps
the jury more engaged,”
he said. “It gives them
more ownership. They’re
not just spectators.”
Jurors in civil and criminal
trials appreciate the
fact that they’re now
allowed to question witnesses
and to take notes, which
wasn’t allowed before
1997, when Colorado’s
judicial branch made reforms
to address growing dissatisfaction
with the jury system,
Kane said.
“It invests jurors in
the case and makes them
much more attentive,”
he said. “It keeps them
more focused and I think
ultimately helps them
make better decisions.”
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