How many verdicts would be different if juries were allowed to ask questions?
Last Tuesday, Gilberto Valle, the so-called “Cannibal Cop,” was found guilty of conspiracy to kidnap, even though he hadn’t acted on any of his fantasies. It’s been reported that one or two jurors were unsure of the facts, yet still found Valle guilty. This is a serious conviction that carries the possibility of life in prison. That jurors may not have had all their questions answered should make each of us very uneasy.
Without commenting on Valle’s guilt or innocence, as a lawyer I believe verdicts in general would be on a more solid foundation if jurors were allowed to pose their own questions to witnesses.
Look at what’s happening in Arizona, where Jodi Arias is on trial for the savage murder of her ex-boyfriend after a day of rough sex — he was shot in the head, his throat was slit, and he was stabbed 30 times. Arias initially said she didn’t do it, but is now claiming self-defense.
There, jurors are freely allowed to submit multiple questions, ones the prosecution missed. They are both common-sensical and telling: “How do you remember so many sexual encounters but don’t remember stabbing Travis and dragging his body?” one juror asked. “After all the lies you told, why should we believe you now?” And, to this — “Would you decide to tell the truth if you never got arrested?” — Arias replied, “I honestly don’t know the answer to that question.”
We do not see juror questions very often in New York, and, in the interest of justice, I wish our judges would allow them.
Arizona is one of just three states, along with Florida and Kentucky, that require judges to tell jurors that they’re allowed to ask questions after prosecution and defense lawyers have finished. (In Florida and Kentucky, this only applies to civil cases; criminal cases are at the discretion of the judge.)
In fact, the infamous Casey Anthony trial may have resulted in a different verdict had that judge, Belvin Perry Jr., decided to allow juror questions. However, Judge Perry Jr. apparently did not give that instruction, so the jurors were not aware they could ask questions. Two jurors later said that they wished the outcome had been different, but that prosecutors left key questions unanswered.
I believe that given the chance, the Anthony jurors would have been as diligently inquisitive as the Arias jurors.
A universally frustrating aspect for trial lawyers is the inability to communicate with the jurors, who sit quietly during trial, are expected not to ask questions, and see their role as passive rather than active. After a trial, jurors will sometimes ask us why we didn’t pose certain questions, and are often surprised to learn why — for example, we cannot divulge whether a defendant has insurance that covers claims of injury without risking a mistrial.
An easy fix: allow jurors to submit written questions after the attorneys have finished their direct and cross examinations. This allows us to clear up any misconceptions or concerns before deliberations begin. New York case law says jury questioning is left up to the judge, though it’s rarely implemented unless both sides consent.
New Jersey has the right idea; juror questions are allowed even absent full party consent. The process is straightforward and quite manageable: Inquiries are written down by the jurors and presented to the judge, and the judge and attorneys meet in chambers to work out which questions should be asked. Back in court, the judge then reads the approved question to the witness, and both sides are permitted to reopen direct and cross-examination to respond to the new testimony.
This process makes for not just a better-informed jury but also a more engaged one — anyone who has served knows the crushing tedium and boredom of sitting through days of facts and testimony. And gathering their own information may also stave off juror confusion, leading to shorter deliberations and fewer inconsistent verdicts.
Based on the above, I would urge New York state judges to consider allowing our jurors to submit written questions of witnesses during trials, as codified in New Jersey.
Further, they should promote this open, interesting and interactive procedure even absent the consent of all sides, as defense counsel may oppose juror questions strictly as a display of caution or matter of custom. Increased juror participation will aid our judicial system in achieving its stated, ostensible goal: seeking to provide justice for all.
Peter DeFilippis is a practicing Manhattan trial attorney with Peter DeFilippis & Associates specializing in plaintiffs’ personal injury matters in the New York metro area.