Child Abuse. Jurors as inquisitors

Satvinder Juss reports on attempts in the US to encourage juror involvement by letting them ask questions during a trial. Satvinder Juss is a barrister at 4 King's Bench Walk. Jurors in some US civil and criminal trials are being allowed to question witnesses in what is being touted as the next big step in judicial reform.

At the start of the proceedings, jurors are told that they can submit written questions at the end of each witness's testimony. The judge and lawyers then determine which questions are inadmissible, irrelevant or prejudicial, and the judge asks those that are approved.

The questions asked are basic – such as “were the street lights on?” – but, according to advocates of the reform, they have the effect of involving jurors in the trial process and aiding their comprehension of the facts.

One example is a case in which defendant DeMarcus Yarborough claimed he fired in self-defence when he shot and killed a 16-year-old boy.

Jurors asked him questions that led to his eventual acquittal. When asked whether he fired his gun first, Yarborough replied: “I really don't know.” When asked whether he knew what type of gun was pointed at him, Yarborough replied that he did not.

Jury foreman Donald Green later explained: “It's the truth we're after” and that “being able to ask questions helped us keep our attention”.

On the other hand, when assistant US attorney Douglas F Gansler was prosecuting a case on similar facts he was able to secure a conviction for second degree murder because jurors had numerous questions about how the firearm worked.

Jurors' questions even have the support of some judges. One of them is Judge Reggie P Walden, who for years has argued against jurors' questions but now allows them.

He says: “As an advocate, I would jump up and scream if some judge wanted to let jurors ask questions and destroy my best-laid tactical plan. But I'm getting to the point where I believe the sporting match we sometimes play doesn't serve the public well.”

The practice, however, is not without difficulty. It is feared that becoming more involved could pressure jurors to act like they are in an episode of Perry Mason instead of concentrating on the case.

According to critics, it could turn jurors into crusaders who form opinions before they reach deliberations, and cause trials to be extended. Jurors will become advocates and not neutral fact-finders. They will ask a question with a particular point of view, and it may well be that it is a question that an advocate has tried to keep out of the trial. But reformers say this is precisely what makes jurors' questions so valuable.

At present, prosecutors seem more enthusiastic about this procedure than defence lawyers because jurors' questions can alert them to gaps in the presentation of their case, and so help them to fill in the holes.

Only 1 per cent of judges currently permit the practice of jurors' questions. Most appellate rulings have, however, upheld the procedure, with the caution that the question-asking must be done in a controlled manner. The result is that the practice is generating a great deal of attention at judicial conferences.

Is this a matter that the Law Society and the Bar Council should also consider?