March 15, 2003

In a 5-2 ruling, the Colorado Supreme Court on Feb. 24 decided to permit jurors to questions witnesses during criminal trials. This dramatic departure from the constitutional standards that have governed criminal trials in the United States for centuries is, in our opinion, a grave misjudgment.

Champions of "jury reform" concentrate on its advantages to jurors. They argue that permitting jurors to ask questions makes jury service more interesting, helps jurors pay closer attention to the evidence and increases their satisfaction with the process as a whole.

However, jury duty is just that: a duty. Trial by jury was never envisioned as something done for the immediate benefit and enjoyment of jurors. Rather, it is a mechanism designed to check the awesome power of the government as it seeks to convict an individual who is both less powerful and presumed innocent. In that sense, it does benefit jurors by ensuring that, if they are ever accused of a crime, they will be judged by a dozen impartial, neutral peers charged with the solemn duty of deciding whether the state has proven its accusations beyond a reasonable doubt.

Reasonable people must necessarily agree that permitting jurors to ask questions ends up helping the state prove its case. During the Colorado Supreme Court's pilot project on jury questioning, both trial judges and prosecutors admitted that in approximately 20 percent of the cases where jurors were allowed to ask questions, those questions assisted the state in proving its case. When a jury of one's peers is transformed into 12 additional assistants for the prosecution, traditional notions of fair play and justice are gravely threatened.

Proponents of "jury reform" argue, however, that helping the state prove its case simply assists in the "search for truth." This oversimplistic argument ignores what a jury trial is designed to do in a free society. Former United States Supreme Court Justice Hugo Black once stated that, "A criminal trial is in part a search for truth. But it is also a system designed to protect 'freedom' by insuring that no one is criminally punished unless the state has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty. . . . A defendant has an absolute unqualified right to compel the state to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources."

Our judicial system in Colorado is already severely financially strained. With budget cuts a necessity, judicial employees are being forced to take unpaid furloughs and Chief Justice Mary Mullarkey is considering shutting down courthouses altogether one day a week to save money. Permitting jurors to ask questions will wind up costing the state even more money, for at least two reasons.

First, jury questions will add to the length of criminal trials. For example, during the pilot project, a jury in Jefferson County was permitted to ask witnesses 103 questions. The more time judicial employees spend in trial, the less time they have to tend to their other duties. Second, permitting jury questions means increased appeals as a result of this a practice.

Inevitably, jurors will ask questions that will violate a rule of evidence or a constitutional provision, or both. Already two appellate courts - in Ohio and Minnesota - have held that allowing jurors to ask questions can result in throwing out a criminal conviction and trying the case all over again. Appeals, like trials, take two things that are in critically short supply in the Colorado judiciary: time and money.

The Ohio Court of Appeals describes jury questioning as a "gross distortion of the adversary system and the misconception of the jury as a neutral factfinder in the adversary process." The Minnesota Supreme Court recently agreed, holding that jury questioning inevitably defeats the fair administration of justice. It is likely that Colorado appellate courts faced with this issue in a specific case will reach a similar conclusion, but not before many citizens are subjected to judgment and loss of their liberty by means of this ill-advised experiment and many resources are consumed that would have more wisely been invested in other areas.

Trial by a neutral and impartial jury is, to paraphrase Winston Churchill's famous observation about democracy, the worst system for determining the truth - except for every other system. The Colorado Supreme Court's decision to encourage juries in criminal trials to stop being neutral and start being investigators - and, ultimately, advocates - is a serious error.

Carrie Lynn Thompson, a member of the Colorado Jury Reform Committee, has been a public defender in Colorado since 1987. She filed a minority report objecting to jury questioning in criminal cases and testified before the Colorado Supreme Court during the public hearing on this issue. Ann M. Aber has been a public defender in Colorado since 1990.

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