State's high court looks at idea of permitting jurors to quiz witnesses

By Karen Abbott, Rocky Mountain News
February 13, 2003

The Colorado Supreme Court grappled Wednesday with whether the role of jurors should be greatly expanded by allowing them to question witnesses in criminal trials.

Some defense attorneys say such a sweeping change would shift the legal burden of proof from the prosecution to the defense.

Committees appointed by the Colorado Supreme Court have been pondering the idea of juror questioning for years and have allowed it in several pilot studies.

One result is that jurors now can question witnesses in civil cases if judges approve.

In a statewide test of juror questioning in criminal trials, most judges, lawyers and jurors who participated decided it's a good idea.

But not everyone thought it led to fairer trials for defendants. That's why defense lawyers argued Wednesday that this isn't an issue to be decided by majority opinion because even one unfair trial is too many.

Defense lawyer Carrie Lynn Thompson said England had used an "inquisitorial" system in its trials, but abandoned it for the approach of U.S. courts.

In the U.S. system, a trial is a test of whether the prosecution has proved beyond a reasonable doubt that the defendant committed the crime. The defense doesn't have to prove or disprove anything.

"Allowing jurors to pose questions could in some cases elicit testimony from a witness that sufficiently proves an element of a crime, and therefore it's relieving the state of its burden," Thompson said.

Prosecutors even acknowledged in surveys that juror questioning helped them prove their cases in 20 percent of the most serious Colorado test cases. Judges agreed with them nearly 18 percent of the time.

Thompson said courts in Minnesota and Ohio have agreed that jurors must stick to their role as neutral decision-makers and not actively seek out facts.

Fellow defense lawyer Paul Grant disagreed. He said jury questioning helps the defense understand when it isn't getting through to jurors.

"Jurors that I have talked to after trials . . . have had important questions that were never answered - questions that would have benefited the defense," Grant said.

Marjorie Seawell, a retired nurse and former juror who served on the court's jury reform committee, urged the justices to allow jurors to pose questions.

"The job of jurors is not . . . to listen," Seawell said. "The jurors' job - and the jurors know it - is to make a decision. They take that charge very seriously."

She also said jurors too often feel like powerless spectators at trials.

"We really want to do justice," she said. "We believe questioning helps a lot. Please listen to us."

Defense lawyer Lisa Wayne, who got a client acquitted of attempted first-degree murder in a Jefferson County trial where jurors were allowed to ask questions, said she still doesn't think it's a good idea.

"The courtroom is not an experiment," she said, "and it's not an educational process. The courtroom is where people's lives are at stake. . . . You cannot take the chance of making errors."

Some criminal convictions in the test cases already are being appealed because jurors were allowed to ask questions, Wayne said.

The U.S. Supreme Court has not ruled on the issue of juror questioning, but some state courts and lower federal courts have. Mississippi, Georgia, Texas and Nebraska have outlawed juror questioning in criminal trials.

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