State v. Doleszny
Annotate this Case
State v. Doleszny (2001-310); 176 Vt. 203; 844 A.2d 773
2004 VT 9
[Filed 30-Jan-2004]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2004 VT 9
No. 2001-310
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
John Doleszny November Term, 2003
David Suntag, J.
William H. Sorrell, Attorney General, and John Treadwell, Assistant
Attorney General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender
General, Montpelier, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.
¶ 1. DOOLEY, J. The question presented is whether the district
court's decision permitting jurors to submit questions for the witnesses in
this criminal trial deprived defendant of an impartial jury and a fair
trial. For the reasons set forth below, we conclude that the practice of
jurors questioning witnesses in the trial court's discretion is
permissible. In reaching this conclusion, we join the vast majority of
states, federal courts, and commentators that have considered this issue.
Accordingly, we affirm the judgment.
¶ 2. The pertinent procedural and factual background may be
summarized as follows. In July 2000, defendant was charged with bribing an
executive officer in violation of 13 V.S.A. § 1101(a)(1). In a pretrial
order, the district court invited the parties to comment on a set of
proposed preliminary jury instructions, including an instruction that
informed the jurors they could submit questions of their own to the
witnesses after the attorneys had completed their examinations. Defendant
filed a written motion, objecting to the proposed instruction on the ground
that allowing juror questions risked compromising the jury's neutrality and
reducing the State's constitutional burden of proving defendant's guilt.
The State filed no response. (FN1)
¶ 3. The court denied defendant's motion in a ten-page written
decision, concluding that juror questions would "enhance the search for
truth without violating Defendant's right to due process," and that
defendant's concerns could be adequately addressed through a series of
procedural protections. In its decision, the court noted that although
defendant had failed to adequately support his claims that there were
"compelling circumstances not to allow juror questioning in this case" and
that allowing juror questions "will greatly reduce the State's burden to
prove its case" both defendant and the State were permitted to "make
specific objections to any question." The court then proceeded to deliver
the charge as proposed. The instruction informed the jurors that they
could seek to have questions of their own submitted to the witnesses after
the attorneys had finished asking questions, but cautioned the jurors to
exercise the opportunity "sparingly," to limit their questions to "facts,"
and to "remain neutral and impartial and not assume the role of
investigator or advocate." The court explained that it would solicit juror
questions after the lawyers had finished with each witness, that the jurors
were to write their questions on a piece of paper without identifying
themselves, and then give the paper to the court officer. The court warned
that it may decide not to ask a question or may ask the question in a
modified form because of the rules of evidence or for other reasons, and
asked the jurors not to speculate about why a question was not asked, or to
hold it against the State or defendant, or to give any more or less weight
to a question solely because it was asked by a juror. (FN2) Defendant did not
place any objection on the record after the instructions were given. The
case proceeded to trial. Each side presented one witness. The State
called the arresting officer, who testified that he was on patrol on the
morning of May 26, 2000, when he observed a tow-truck towing a vehicle
without flashing its emergency lights. The officer followed the tow-truck
for several blocks in his cruiser, clocked its speed at forty-five miles
per hour in a twenty-five mile per hour zone, and signaled the driver to
pull over. The officer approached the tow-truck, asked the driver - later
identified as defendant - for his license and registration, and informed
him that he had been towing a vehicle without emergency lights and
speeding. When defendant learned that the officer was preparing a speeding
ticket, he pleaded with the officer to cite him for the emergency-lights
violation instead in order to avoid the penalty points that accompany a
speeding violation. According to the officer, defendant then asked him if
there was "any way we can work this out" and the officer asked defendant
what he meant. Defendant responded that "he could tow my car for free" and
explained that he had towed the Police Department's cars for free in the
past. The officer declined the offer, completed the ticket, and followed
defendant to the service station.
¶ 4. After the attorneys completed their examinations, the court
inquired whether "[a]ny jurors have a question they'd like to put to this
witness?" Two questions were submitted. The court convened a bench
conference, and defense counsel indicated that she did not object to either
question. The State objected on relevance grounds to the second question,
which the court overruled. The court then addressed the two questions to
the officer, inquiring first whether defendant had specifically "used
words about towing a police car or towing your personal car or neither?"
The officer responded that defendant had "told me that he could tow my car
for me." The second question was "how accurate" the officer considered his
assessment of the tow-truck's speed. The officer stated that it was "very
accurate." Defense counsel then engaged in a brief re-cross examination,
inquiring into the distance required for an accurate determination of a
vehicle's speed. The State had no follow-up questions.
¶ 5. Defendant was the only witness for the defense. He
acknowledged that he had asked the police officer for a "break" based on
the services that he had provided the Police Department in the past.
Defendant claimed, however, that he was only attempting to persuade the
officer to cite him for failing to illuminate the vehicle's
emergency-lights rather than speeding. He denied offering the officer
anything in return for his dispensing with the speeding ticket.
¶ 6. When the attorneys had completed their examination of
defendant, the court once again inquired whether any of the jurors had
questions for the witness. Five questions were submitted. At a bench
conference to review the questions, neither counsel objected to the first
question, which inquired about the make and model of defendant's tow-truck
and the vehicle being towed. Defense counsel objected on relevance grounds
to the second question, which was whether the speeding ticket had been
paid. The court overruled the objection, observing that it was a
"legitimate question . . . [and] doesn't hurt anybody." The next question
was why the officer had followed defendant to the garage. The State
objected on the basis of relevance but the court overruled the objection.
The fourth question was whether or not it mattered that defendant was
speeding "from a legal standpoint." The court ruled without elaboration
that it would not ask this question. The final question was why defendant
had towed police vehicles in the past for free. There were no objections
to this question.
¶ 7. The court then addressed the four approved questions to
defendant. Defendant, in response, described the make and model of his
wrecker and the car he was towing, indicated that the speeding ticket was
still pending, stated that the officer had followed him to the garage
because a "service engine" light was on in his cruiser, and explained that
he had declined to bill the Police Department for services in the past "as
a courtesy." The State then re-cross examined defendant, asking why he had
not billed the Police Department for services when he had testified that he
could not afford to tow the officer's car for free. Defendant responded
that it was a general business practice among towing companies. Defense
counsel asked several additional questions on re-direct. The State then
re-called the officer as a rebuttal witness, inquiring as to the reason
that he had followed defendant to the service station. The officer
confirmed that it was because of a "check engine" light.
¶ 8. The jury returned a verdict of guilty as charged. The court
denied a subsequent motion for new trial, and later sentenced defendant to
zero to thirty days, all suspended, and placed defendant on probation.
This appeal followed.
¶ 9. Defendant renews on appeal the objections that he raised
below to the trial court's decision to allow juror questioning. The State
raises a procedural bar at the threshold, however, arguing that the claims
were not adequately preserved for review because defendant failed to
specifically object on the record to the court's decision to allow juror
questioning after the court read the preliminary instructions to the jury.
For the reasons stated below, we agree with the State's argument and
conclude that defendant needed to object to the preliminary juror
instructions to preserve this question for appeal.
¶ 10. This Court has continuously held that litigants must renew
objections to instructions on the record in order to preserve the questions
for appeal or this Court will review such issues only for plain error. See
State v. Tahair, 172 Vt. 101, 104-05, 772 A.2d 1079, 1082 (2001); State v.
Carpenter, 170 Vt. 371, 374, 749 A.2d 1137, 1139 (2000); State v. Wheelock,
158 Vt. 302, 306, 609 A.2d 972, 975 (1992). As stated in Wheelock, the
purpose of requiring an objection after jury instructions is to give the
trial court a last chance to avoid an error. 158 Vt. at 306, 609 A.2d at
975. Thus, we have viewed the requirement to make a post-charge objection
as a bright-line rule, applicable even if the charge issue is discussed and
resolved in a pre-charge conference. See Tahair, 172 Vt. at 104-05, 772 A.2d at 1082 (post-charge objection not made therefore objection not
preserved, even though raised and ruled upon at a charge conference). As
this case demonstrates, the instructions given to the jury before the
commencement of the evidence can be as important as those given following
the evidence. Thus, we conclude that the requirement of an objection
following the giving of jury instructions applies at whatever stage of the
proceedings the instructions are given. See United States v. Sutton, 970 F.2d 1001, 1006 n.5 (1st Cir. 1992) (defendant's failure to object to
judge's preliminary statement regarding juror questioning procedure left
the question unreviewable on appeal); see also Turner v. State, 682 N.E.2d 491, 496 (Ind. 1997) (defendant's failure to timely object to preliminary
instructions constitutes waiver).
¶ 11. Although we hold that defendant failed to preserve the issue
of whether juror questioning of witnesses in the trial court's discretion
should be permitted, we address this issue on the merits for reasons akin
to those present in State v. Wheelock, 158 Vt. at 306, 609 A.2d at 975, a
case in which we also reviewed defendant's claim of error despite the
failure to preserve it. In Wheelock, we held that it would be unfair to
rely upon non-preservation because the trial judge had specifically ruled
that all objections made in an earlier charge conference were preserved
without a renewed objection after the charge. In essence, the ruling of
Wheelock was made prospective. Here, although we have ruled that a
post-charge objection must be stated to preserve issues related to a
preliminary charge, our criminal rules do not specifically require this
procedure, as they do for post-evidence instructions. See V.R.Cr.P. 30.
Indeed, preliminary instructions are not yet specifically authorized in our
criminal rules although we have recognized their usefulness. See State v.
Muscari, 174 Vt. 101, 116, 807 A.2d 407, 419 (2002). Following the model
of Wheelock, we reach the heart of defendant's challenge to juror
questioning of witnesses in criminal cases for the following reasons: (1)
the objection requirement is not in a rule; (2) defendant's challenge to
jury questioning had been raised by specific motion and ruled upon in a
written decision; and (3) the issue before us is important and needs the
guidance of this Court.
¶ 12. Juror questioning is neither radical nor a recent innovation.
The practice was historically part of the trial process and considered a
useful tool in ascertaining the truth. See, e.g., State v. Kendall, 57 S.E. 340, 341 (N.C. 1907) ("[T]here is not only nothing improper in [juror
questioning] when done in a seemly manner and with the evident purpose of
discovering the truth, but a juror may, and often does, ask a very
pertinent and helpful question in furtherance of the investigation."); see
also Note, "The Blindfold on Justice is Not a Gag": The Case for Allowing
Controlled Questioning of Witnesses by Jurors, 38 Tulsa L. Rev. 529, 533
(2003) [hereinafter The Blindfold on Justice is Not a Gag] (noting that
juror questioning dates to the eighteenth century in England and the
nineteenth century in the United States); Comment, Juror Questions: A
Survey of Theory and Use, 55 Mo. L. Rev. 817, 817 (1990) (finding juror
questioning rooted in English common law courts). Although a few courts
have prohibited questioning of witnesses by juries, none have held it
unconstitutional. See State v. Culkin, 35 P.3d 233, 253-54 (Haw. 2001)
(collecting cases).
¶ 13. The vast majority of states that have ruled on the issue
allow juror questioning in some form. See State v. LeMaster, 669 P.2d 592,
598 (Ariz. Ct. App. 1983); Nelson v. State, 513 S.W.2d 496, 498 (Ark.
1974); People v. McAlister, 213 Cal. Rptr. 271, 277 (Cal. Ct. App. 1985);
People v. Milligan, 77 P.3d 771, 779 (Colo. Ct. App. 2003); Gurliacci v.
Mayer, 590 A.2d 914, 930-31 (Conn. 1991); Yeager v. Greene, 502 A.2d 980,
985 (D.C. 1985); Watson v. State, 651 So. 2d 1159, 1163 (Fla. 1994); Lance
v. State, 560 S.E.2d 663, 676 (Ga. 2002); Culkin, 35 P.3d at 253; Trotter
v. State, 733 N.E.2d 527, 531 (Ind. Ct. App. 2000); Rudolph v. Iowa
Methodist Med. Ctr., 293 N.W.2d 550, 556 (Iowa 1980); Transit Auth. of
River City v. Montgomery, 836 S.W.2d 413, 416 (Ky. 1992); Commonwealth v.
Britto, 744 N.E.2d 1089, 1105 (Mass. 2001); People v. Heard, 200 N.W.2d 73, 76 (Mich. 1972); Hancock v. Shook, 100 S.W.3d 786, 795-96 (Mo. 2003) (en
banc); State v. Graves, 907 P.2d 963, 966-67 (Mont. 1995); State v.
Rodriguez, 762 P.2d 898, 902 (N.M. Ct. App. 1988); Flores v. State, 965 P.2d 901, 903 (Nev. 1998); People v. Bacic, 608 N.Y.S.2d 452, 452 (N.Y.
App. Div. 1994); State v. Howard, 360 S.E.2d 790, 796 (N.C. 1987); State v.
Fisher, 789 N.E.2d 222, 229 (Ohio 2003); Freeman v. State, 876 P.2d 283,
288-89 (Okla. Crim. App. 1994); Boggs v. Jewell Tea Co., 109 A. 666, 668
(Pa. 1920); Day v. Kilgore, 444 S.E.2d 515, 518-19 (S.C. 1994); State v.
Johnson, 784 P.2d 1135, 1144-45 (Utah 1989); Williams v. Commonwealth, 484 S.E.2d 153, 155-56 (Va. Ct. App. 1997); State v. Munoz, 837 P.2d 636, 639
(Wash. Ct. App. 1993); Sommers v. Friedman, 493 N.W.2d 393, 400-01 (Wis.
Ct. App. 1992).
¶ 14. In addition to the state court decisions, of the ten federal
circuits that have considered the juror questioning issue, all allow the
practice in some form in the trial court's discretion. See United States v.
Richardson, 233 F.3d 1285, 1288-91 (11th Cir. 2000); United States v.
Collins, 226 F.3d 457, 464-65 (6th Cir. 2000); United States v. Hernandez,
176 F.3d 719, 722-26 (3d Cir. 1999); United States v. Feinberg, 89 F.3d 333, 336-38 (7th Cir. 1996); United States v. Bush, 47 F.3d 511, 514-16 (2d
Cir. 1995); United States v. Huebner, 48 F.3d 376, 382 (9th Cir. 1994);
United States v. Welliver, 976 F.2d 1148, 1154-55 (8th Cir. 1992); United
States v. Sutton, 970 F.2d 1001, 1004-07 (1st Cir. 1992); DeBenedetto v.
Goodyear Tire & Rubber Co., 754 F.2d 512, 515-17 (4th Cir. 1985); United
States v. Callahan, 588 F.2d 1078, 1086 (5th Cir. 1979).
¶ 15. Defendant, while acknowledging that most states have allowed
juror questioning in some form, emphasizes that most of these jurisdictions
discourage and limit the practice. We agree with that assessment of the
decisions, but find a significant recent trend towards endorsement of the
practice and emphasis on its benefits. Thus, recent decisions allow the
trial courts greater freedom in utilizing juror questioning. See, e.g.,
Hancock, 100 S.W.3d at 795-96; Fisher, 789 N.E.2d at 229-30; Britto, 744 N.E.2d at 1105 (expanding Commonwealth v. Urena, 632 N.E.2d 1200, 1206
(Mass. 1994) which allowed juror questioning only for "important matters"
in civil cases, and holding that juror questioning may be used at trial
court's discretion and "need not be limited to any particular type of
case"). Many decisions conclude that juror questioning of witnesses aids
in the ascertainment of truth and the overall achievement of justice in
trials. See Yeager, 502 A.2d at 998-99 ("[I]t seems indisputable that the
increased effectiveness of communication with jurors that will result if
they are permitted to pose questions to witnesses will aid in finding the
truth."); Heard, 200 N.W.2d at 76 ("It would appear that in certain
circumstances, a juror might have a question which could help unravel
otherwise confusing testimony. In such a situation, it would aid the
fact-finding process if a juror were permitted to ask such a question.");
Flores, 965 P.2d at 902 ("[W]e join the majority of jurisdictions which
acknowledge the practice of jury-questioning as an innovation that can
significantly enhance the truth-seeking function of the trial process.");
Fisher, 789 N.E.2d at 228 ("The practice of allowing jurors to question
witnesses provides for two-way communication through which jurors can more
effectively fulfill their fundamental role as factfinders."); see also A.
Barry Cappello & G. James Strenio, Juror Questioning: The Verdict Is In,
Trial, June 2000 at 44 ("Overall, [juror questioning] advances the
interests of justice and the search for truth by enhancing the fact-finding
and decision-making function of the jurors. They are thereby able to render
a rational and just verdict as opposed to one based on ignorance,
confusion, speculation, or emotion."). Other courts have found that juror
questioning may also increase juror understanding and participation. See
Culkin, 35 P.3d at 253 ("Allowing jurors to ask questions of witnesses
would promote better and more reliable communication, because a two-way
system provides for constant clarification of messages being sent.
Understanding testimony more clearly, jurors thus would be able to fulfill
their basic function of finding the facts in dispute.") (internal
quotations and citations omitted); Slaughter v. Commonwealth, 744 S.W.2d 407, 413 (Ky. 1987) (juror questioning is "encouraged in the interest of
justice and to enhance the understanding of the facts and issues in a
case.").
¶ 16. We acknowledge that two other highest courts, Mississippi and
Nebraska, have ruled that juror questioning is prohibited in all cases. See
Wharton v. State, 734 So. 2d 985, 990 (Miss. 1998); State v. Zima, 468 N.W.2d 377, 380 (Neb. 1991). Two other states, Minnesota and Texas,
prohibit juror questioning in criminal cases but their highest courts have
not ruled on the issue in the civil context. State v. Costello, 646 N.W.2d 204, 214 (Minn. 2002); Morrison v. State, 845 S.W.2d 882, 888-89 (Tex.
Crim. App. 1992). In addition, as defendant particularly emphasizes, some
other courts have discouraged the practice of allowing jurors to question
witnesses. See, e.g., DeBenedetto, 754 F.2d at 516 ("[J]uror questioning
is fraught with dangers which can undermine the orderly progress of the
trial to verdict."); State v. Hays, 883 P.2d 1093, 1102 (Kan. 1994) ("[A]
trial court should discourage the practice [of juror questioning] except
when the benefits outweigh the risks.").
¶ 17. Even the broad acceptance of juror questioning in the
appellate decisions paints an incomplete picture of support for the
practice in the states. Many states have established jury policy
commissions to study methods of improving juror understanding of the
evidence and proceedings, among other issues. See Am. Judicature Soc'y,
Enhancing the Jury System: A Guidebook for Jury Reform (1999). These
commissions have overwhelmingly supported adoption of policies that allow
juror questioning of witnesses at least in some cases. See, e.g., J.
Kelso, Final Report of the Commission on Jury System Improvement, 47 Hast.
L.J. 1433, 1508 (1996) ("The [California] Commission recommends that juror
questioning be allowed in all cases subject to the discretion of the judge
and the rules of evidence"); Colo. Supreme Court Comm. on Effective &
Efficient Use of Juries, With Respect to the Jury: A Proposal for Jury
Reform 6 (1997) (jurors should be permitted to submit written questions in
civil cases; trial judges should permit juror questioning in controlled
pilot projects in criminal cases); Council for Court Excellence, D.C. Jury
Project, Juries for the Year 2000 and Beyond 42-3 (1998) (jurors should be
permitted to submit written questions to be asked of witnesses by the trial
judge in civil and criminal cases); Supreme Court of Fla. Judicial Mgmt.
Council, Jury Innovations Committee Final Report 37-39 (2001) (jurors in
both civil and criminal cases should be permitted by rule to submit written
questions to the judge to be asked of witnesses); R. Creswell, Georgia
Courts in the 21st Century: The Report of the Supreme Court of Georgia Blue
Ribbon Comm'n on the Judiciary, 53 Mercer L. Rev. 1, 23-24 (2001) ("[I]t
seems intuitively obvious that juries are likely to render more informed
decisions if jurors are permitted to actively participate by asking
questions through the judge. . . . Giving official sanction to jury
questions in the Uniform Rules will encourage this beneficial technique in
jury trials, while the rules of evidence and the judge's discretion will
protect the integrity of the trial process."); J. Grant, Recent Changes to
Washington's Jury Trials: A Great System Made Even Better, 26 Seattle U. L.
Rev. 431, 438-39 (2003) (Washington State Jury Commission report
recommended allowing jurors to question witnesses especially in civil
trials; recommendation implemented by amendments to court rules); Wy.
Comm'n on Jury System Improvement, Re-Examining Wyoming's Jury Trial
Procedures 20-25 (2000) (Supreme Court should adopt a rule for civil trials
allowing juror questioning of witnesses under appropriate procedures).
These reports led numerous state legislatures and supreme courts to adopt
statutes or rules allowing juror questioning of witnesses and specifying
the procedure for the practice. See Fla. Stat. Ann. § 40.50 (2003) (civil
cases); Ariz. R. Civ. P. 39(b)(10); Haw. R. Civ. P. 47(c); Haw. R. Penal P.
26(b); Idaho R. Civ. P. 47(q); Idaho R. Crim. P. 30.1; Ind. R. Evid.
611(d); N.H. Sup. Ct. R. 64-B; N.D. R. Ct. 6.8; Tenn. R. Civ. P. 43 A. 03;
Tenn. R. Crim. P. 24.1(c); Wyo. R. Civ. P. 39.4. These new rules are
significant because they arise out of comprehensive studies that examine
the issue thoroughly and conclude that juror questioning of witnesses is
and should be permissible.
¶ 18. In addition, scholarly and professional commentary is near
unanimous in its support for allowing jurors to question witnesses. See,
e.g., J. Connor, Los Angeles County Trial Courts Test Jury Innovations and
Find They Are Effective, 67 Def. Couns. J. 186, 188 (2000) ("People who are
active and engaged are better learners and hence better jurors."); D.
Smith, Structural and Functional Aspects of the Jury: Comparative Analysis
and Proposals for Reform, 48 Ala. L. Rev. 441, 553-78 (1997) (urging
creation of "inquisitorial" jury system allowing juror questioning of both
witnesses and the trial judge, juror note taking, and discussions among
jurors during trial); L. Heuer & S. Penrod, Increasing Juror Participation
in Trials Through Note Taking and Question Asking, 79 Judicature 256, 260
(1996) [hereinafter Juror Participation] (finding that juror questioning
helps jurors understand the facts and issues being presented); Comment, A
More Active Jury: Has Arizona Set the Standard for Reform With Its New Jury
Rules?, 28 Ariz. St. L. J. 1009, passim (1996) (endorsing amendment to
Arizona rules allowing submission of juror questions); F. Strier, Making
Jury Trials More Truthful, 30 U.C. Davis L. Rev. 95, 154 (1996) (stating
juror questions may increase juror attention and interest in case); A.
Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev.
1169, 1185-86 (1995) (advocates redesign of jury system to show jurors
"respect" by permitting them to submit questions for witnesses); B. Dann,
"Learning Lessons" and "Speaking Rights": Creating Educated and Democratic
Juries, 68 Ind. L.J. 1229, 1230, 1241-42 (1993) [hereinafter Learning
Lessons] (urges end to traditional "passive juror model" by permitting
active juror participation through such devices as juror questioning); A.
Valen, Jurors Asking Questions: Revolutionary or Evolutionary?, 20 N. Ky.
L. Rev. 423, 438-39 (1993) (contends that allowing jurors to ask questions
makes them "feel more like a part of the judiciary, and less like helpless
outsiders trying to penetrate a sanctimonious institution"); M. Frankel, A
Trial Judge's Perspective on Providing Tools for Rational Jury
Decisionmaking, 85 Nw. U. L. Rev. 221, 224 (1990) (stating that jurors who
are allowed to ask questions are more satisfied with their experience); S.
Friedland, The Competency and Responsibility of Jurors in Deciding Cases,
85 Nw. U. L. Rev. 190, 192 (1990) (promoting "active" jury model through
such techniques as note taking and jury questioning); L. Sand & S. Reiss, A
Report on Seven Experiments Conducted by District Court Judges in the
Second Circuit, 60 N.Y.U. L. Rev. 423, 444 (1985) (finds that jurors who
ask questions may feel a greater sense of responsibility and participation
in the trial); A. Barry Cappello & G. James Strenio, supra, at 45 (arguing
that juror questions can help preserve the sanctity of the judicial
system). As we note infra, some of this commentary results from research
of trials in which jurors are allowed to ask questions. The American Bar
Association's Section of Litigation has endorsed juror questioning of
witnesses in its civil trial practice standards. See ABA Sec. Litigation,
Civil Trial Practice Standards, Standard 4 (1997).
¶ 19. Before we discuss defendant's arguments why we should find
juror questioning of witnesses to constitute reversible error, we stress
the nature of the questioning that occurred in this case pursuant to the
procedures developed by the committee of this Court. See supra, note 2.
While this case is nominally about jurors questioning witnesses, it is
really about judges questioning witnesses based on questions suggested by
jurors. (FN3) The procedures employed required the judge to review each
proposed question with counsel and to screen out or rephrase questions that
might be objectionable or inappropriate. This practice is intended to and
does screen out questions that are adversarial. See Yeager, 502 A.2d at
985 (such procedures allowed "jurors to ask relevant questions while
minimizing the risk of improper questions"); Culkin, 35 P.3d at 252
(judge's filtering of questions eliminated improper and prejudicial
questions; supposed negative consequences of jury questioning, such as its
possible effect on juror neutrality and a tendency to incite improper and
prejudicial questions, occurs only when jurors directly question
witnesses); Britto, 744 N.E.2d at 1106 ("The purpose of reexamination [of
written juror questions] is two fold. First, it cures the admission of any
prejudicial questions or answers; and second, it prevents the jury from
becoming adversary in its interrogation."); Fisher, 789 N.E.2d at 229
(decisions on whether to allow juror questions should stay with trial judge
who can "examine the nature of each question in the overall context of a
trial" and determine if it is improper). More important for this
discussion, it employs the traditional power of the judge to question
witnesses, see V.R.E. 614(b); Neverett v. Towne, 123 Vt. 45, 50, 179 A.2d 583, 586 (1962) (it was within authority of the trial judge to propose
questions to witness); State v. Noakes, 70 Vt. 247, 257, 40 A. 249, 252
(1897) (the trial court may formulate and put questions to witnesses, even
leading questions, to elicit admissible facts), a power long understood to
be consistent with the adversary system. We do not have to reach the
propriety of a procedure that allowed jurors to question witnesses
directly. See Lance, 560 S.E.2d at 676 (juror questioning of witnesses is
prohibited, but judge questioning of witnesses based on proposed questions
from jurors is proper).
¶ 20. Defendant makes two main arguments why we should hold that
allowing jurors to question witnesses, under the procedures used by the
trial court, is improper such that we must reverse his conviction. They
mirror the two main criticisms of the practice: (1) jurors who ask
questions are not neutral, but instead are active participants in the
adversarial process who have assumed an adversarial stance; and (2) juror
questioning of witnesses is inconsistent with the State's burden of proof
in a criminal proceeding because jurors might prove elements of the crime
through their questioning. Upon examination, neither criticism withstands
serious analysis.
¶ 21. The first criticism is discussed in detail in State v.
Costello, one of the four decisions prohibiting juror questioning of
witnesses in criminal cases. Chief Justice Blatz of the Minnesota Supreme
Court outlined that court's view of the dynamics of witness interrogation
and why it is inconsistent with the role of a juror:
But in order to ask a question, a juror must first develop a
hypothesis or, at the very least, respond to a perceived flaw in a
party's presentation of the case before the time to deliberate
has arrived.
To the degree jurors are encouraged to ask questions about facts
and legal issues, they are encouraged to form at least a prior
tentative opinion because one cannot investigate unless one has a
hypothesis about what happened in the particular criminal case.
Therefore, with such encouragement, there is an increased risk
that jurors will inevitably draw conclusions or settle on a given
legal theory before the parties have completed their
presentations, and before the court has instructed the jury on the
law of the case. While the state argues that it is human nature to
test one's hypothesis, the traditional system's procedures and
instructions have been crafted to limit such activities until both
sides have presented their arguments and the jury has been
instructed on the relevant law.
Costello, 646 N.W.2d at 210-11 (internal quotations and citations omitted);
see also Bush, 47 F.3d at 515 ("The most troubling concern is that the
practice risks turning jurors into advocates, compromising their
neutrality. It is difficult for jurors to be both active participants in
the adversarial process, embroiled in the questioning of witnesses, and
detached observers, passing on the credibility of the witnesses and the
plausibility of the facts presented.") (internal citations omitted).
¶ 22. We reject the Costello rationale for a number of reasons.
Overall, we are particularly persuaded by Wisconsin Judge Mark Frankel's
response to this charge: "It has always struck me as highly ironic that our
legal system vests such a large degree of confidence in and deference to
the jury's final decision, yet has so little confidence in the ability of
jurors to arrive at this sacrosanct result by impartial, nonadversarial,
and thoughtful means." M. Frankel, supra, at 223. At base, the rationale
involves speculation about juror behavior, directly contrary to the
instructions juries are given not to prematurely draw conclusions or
deliberate. See United States v. Johnson, 892 F.2d 707, 713 n.4 (8th Cir.
1989) (Lay, C.J., concurring) ("Although no empirical studies address the
effect of juror questions on neutrality, several commentators mention
it."); Yeager, 502 A.2d at 986 n.16 ("[F]ears of prejudice to criminal
defendants have not been realized in practice."); The Blindfold on Justice
is Not a Gag, supra, at 541-42 (although some commentators and courts have
held that juror questioning will affect juror neutrality, cases and
articles cite to themselves and not to scientific data); B. Michael Dann,
Free the Jury, Litig., Fall 1996, at 6 [hereinafter Free the Jury] (the
ideal of jury passivity [espoused in decisions like Costello] is "based on
assumptions or wishful thinking about human behavior and our adversarial
system, not on empirical validation").
¶ 23. This is a subject about which speculation is unnecessary
because there are a number of recent studies of actual juries that have
examined whether juror questioning leads to premature conclusions or
deliberation. Not surprisingly, the leading researchers on the impact of
jurors questioning witnesses, and other similar procedural reforms, have
aptly noted that debate over such reforms has "proceeded with entirely too
much opinion and anecdotal 'evidence' and entirely too little solid data"
and that "the courts have been spectacularly unimaginative about devising
methods that would help them resolve the issues." S. Penrod & L. Heuer,
Tweaking Commonsense, 3 Psychol. Pub. Pol'y & L. 259, 262 (1997)
[hereinafter Tweaking Commonsense]. Professors Penrod and Heuer noted that
the arguments about jurors questioning witnesses involved "testable
hypothesis about the impact of such questions on trial outcomes and the
trial process." Id. at 273. They tested the hypotheses, drawing data from
67 Wisconsin trials and 160 other trials in state and federal courts in 33
states. Juror Participation, supra, at 256-57; see also L. Heuer & S.
Penrod, Juror Notetaking and Question Asking During Trials: A National
Field Experiment, 18 Law & Human Behavior 121 (1994). The cases were about
half criminal and half civil. Among the hypotheses tested was the Costello
thesis - that jurors will become advocates if allowed to question
witnesses. Among their main findings are: (1) "Juror questions promote
juror understanding of the facts and issues and alleviate juror doubts
about trial evidence"; (2) "juror questions serve a clarifying function";
(3) "[jurors ask] appropriate questions"; and (4) "jurors . . . were
neither embarrassed nor angry" when the judge did not ask their questions.
Tweaking Commonsense, supra, at 274-77. Ultimately, Professors Penrod and
Heuer concluded that: "Jurors allowed to ask questions do not become
advocates rather than neutrals." Juror Participation, supra, at 260.
¶ 24. A recent study conducted by Nicole Mott, The Current Debate
on Juror Questions: "To Ask or Not to Ask, That is the Question", 78
Chi.-Kent L. Rev. 1099, 1121 (2003), echoes Professors Penrod and Heuer's
findings. In this study, Mott collected 2271 juror questions asked in
civil and criminal cases in both state and federal court. She used this
data set to analyze how often jurors ask questions and what information is
sought by questioning jurors. Id. at 1111-13. Mott then used the results
from these two inquiries to conclude that: (1) jurors used questions not to
become advocates, but rather to enhance their roles as neutral
fact-finders; (2) jurors used questions to clarify evidence already
presented in the trial, not to advocate for a position; (3) jurors asked
questions to understand the case on their own terms as lay people immersed
in a legal context; and (4) juror questions improved comprehension and
helped clarify the proceedings. Id. at 1119-20.
¶ 25. Uniformly, the researchers have concluded that jurors who ask
questions do not thereby become advocates for a particular trial result.
As the studies demonstrate, the speculation is inconsistent with the
empirical evidence.
¶ 26. Moreover, the concept of a jury as a passive receptacle of
information on which it will make critical decisions is now recognized as
totally inconsistent with how we view the process of informed decision
making in other contexts. See Tweaking Commonsense, supra, at 262 (juror
questioning of witnesses and other similar procedures are "tools of inquiry
and aids to decision making that are used every day by members of a
literate society"); Learning Lessons, supra, at 1243 ("[T]he active juror
is more likely to have an effective and satisfactory learning experience,
and less likely to be confused or not to remember the evidence or the
law."). Active jurors, like active students, are more likely to learn and
will thereby become more precise and qualified decision makers. See
Friedland, supra, at 206-09 (arguing for a more active jury because active
jurors are more accurate decision makers and, like students, are more
effective than passive learners); Free the Jury, supra, at 6 ("The more
active jurors are at trial, the more attentive they are to the
proceedings."); Note, Juror Questioning of Witnesses: Questioning the
United States Criminal Justice System, 85 Minn. L. Rev. 2007, 2023 (2001)
(an advantage of juror questioning is that "[a]ctive participation focuses
the jurors' attention on the important issues in the trial, which helps
maintain juror alertness and increases juror memory"); S. Diamond et al.,
Inside the Jury Room: Evaluating Juror Discussions During Trial, 87
Judicature 54, 58 (2003) (Study of Arizona Civil Procedure Rule 39(f) which
allows jurors to discuss evidence among themselves during breaks in trial
demonstrated that, "[t]he interactions helped to fill gaps in [the jurors]
knowledge, clarify misunderstandings, and improve the accuracy of their
recall of evidence"). In our view, Costello trades a speculative increase
in neutrality for a likely reduction in juror comprehension of the
evidence, a trade-off we are unwilling to force on our trial judges.
¶ 27. Finally, we reiterate that the procedure employed, screening
of questions by the trial judge, is aimed at minimizing the risk cited by
Costello, as cases discussed above recognize. Moreover, the procedure
demonstrates the inconsistency of an approach that would allow questions by
judges in a bench trial, but deny that opportunity to jurors in a jury
trial. (FN4) It was Judge Frankel's experience as a fact-finder that
prompted his response, as set out above. See Frankel, supra, at 223. It is
difficult to perceive how we can accept this role of a judge as consistent
with that of a neutral fact-finder, while rejecting this role for jurors as
inconsistent with their neutrality. See Culkin, 35 P.3d at 254 (noting
similarities between trial judge and juror questioning of witnesses and
determining that allowing either to ask questions does not affect their
roles in the adversarial process).
¶ 28. The second criticism - that juror questioning of witnesses
prejudices the defendant because a juror might ask a question that ends up
convicting the defendant - presumes that this result is fundamentally
inconsistent with the State's burden of proof. Again, the criticism is
voiced in Costello,
In addition to our concern about the impact that juror
questioning will have on juror impartiality, we are also concerned
that the practice may affect the burden of proof and production.
Due process requires that the state prove beyond a reasonable
doubt the existence of every element of the crime charged. A
defendant's due process rights are violated if the burden to
disprove the existence of any element of the crime charged is
shifted to the defendant. Allowing jurors to pose questions could,
in some cases, elicit testimony from a witness that sufficiently
proves an element of a crime, thereby relieving the state of its
burden.
646 N.W.2d at 211 (internal citations omitted). There the Court criticized
even indirect effects on the prosecution's action. Thus, it found improper
shifting of the burden of proof in the case before it because the
prosecutor admitted that a juror's question caused him to respond to an
affirmative defense that he had thought was very weak. Id. at 212.
¶ 29. The premise of the criticism is that the burden of proof must
be met solely through the questions and actions of the prosecutor. The
premise is wrong. As reflected in our criminal rule, V.R.Cr.P. 29(a), the
sufficiency of the evidence to go to the jury is judged "after the evidence
on either side is closed." That evidence can come from questions asked by
the judge, see Noakes, 70 Vt. at 257, 40 A. at 252; V.R.E. 614(b), or even
from questions asked by defense counsel. See State v. Salazar, 774 P.2d 1360, 1361-62 (Ariz. Ct. App. 1989). In any event, the court must make the
decision on all the evidence before it, regardless of its source. See
United States v. Beck, 615 F.2d 441, 448 (7th Cir. 1980); cf. State v.
Fanger, 164 Vt. 48, 52, 665 A.2d 36, 37-38 (1995) (in determining motion to
dismiss for lack of a prima facie case, court must consider all evidence
including cross-examination by defense). There is no inconsistency between
an authorization for jurors to question witnesses, exercising the same
power available to the judge, and the State's burden of proof.
¶ 30. This criticism is frequently phrased in terms of an
inconsistency between jurors questioning witnesses and the adversary
system. The argument is that the adversary system requires evidence
development solely by the parties. Of course, questioning of witnesses by
the judge is also inconsistent with this view of the adversary system.
¶ 31. We remain committed to the adversary system, but not with
rules so rigid that they prevent determining the truth. We have long held
that the purpose of a trial is to determine the truth. See State v. Miner,
128 Vt. 55, 73, 258 A.2d 815, 826 (1969) ("[T]he first concern of the court
should be the search for the truth, consistent with procedural due
process.").
¶ 32. Even if we shared the concern that juror questioning should
not develop evidence that might result in the conviction of defendant, we
would not adopt the remedy urged by defendant on the record before us.
None of the questions asked could remotely have contributed to defendant's
conviction. Nor were they aimed to help the prosecution at the expense of
the defense. They might be criticized for lacking probative value, but not
for their effect on the verdict.
¶ 33. We reiterate that the procedure before us gives discretion to
the judge to determine whether to solicit juror questions and to ask a
particular question proposed by a juror. The remedy, if any, for
inappropriate juror questions lies in effective screening by the trial
judge.
¶ 34. In summary, the overwhelming endorsement in other
jurisdictions of allowing jurors to question witnesses through the judge,
and the lack of persuasiveness of the criticisms of the practice, lead us
to hold that trial judges in Vermont have authority to allow jurors to
question witnesses, through the judge, in criminal cases. The procedure
should follow that employed in this case: (1) the jurors must submit the
proposed questions to the judge and be made part of the record; (2) the
judge must disclose the proposed questions to the parties and give them the
opportunity to object or request the question be narrowed or rephrased; and
(3) the judge must rule on each proposed question on the record, allowing,
rejecting or modifying the question. The procedures should be explained to
the parties and jurors at the commencement of the trial.
¶ 35. We further hold that the trial court in this case adopted and
implemented the proper procedures and acted within its discretion in the
rulings made on the questions submitted. We find no error.
Affirmed.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. The proposed instruction was derived from guidelines promulgated by
the Jury Communications Committee, which had been appointed by this Court
to examine the current operation of the jury system in Vermont and to study
policies and procedures in other states. The committee invited trial
courts to experiment with juror questions, and provided questionnaires for
the participants to evaluate their experience.
FN2. The court's instruction, in its entirety, was as follows:
During this trial you may also seek to have questions of your
own asked of any witness after the attorneys have finished asking
questions of that witness. Please keep in mind however that the
prime responsibility for presenting evidence rests with the
attorneys; therefore, please exercise this opportunity sparingly
and only if you believe that your question will not or cannot be
answered by some other witness likely to be called.
Your questions should only be about the facts, such as if you
are confused or did not understand something a witness said and
would like the matter clarified. Please do not state an opinion
in your question or even write down the reason you are asking the
question.
It is important to keep in mind that you not let yourselves
become aligned with either side in the case. Your questions
should not be directed at helping or responding to either side.
Rather, you must remain neutral and impartial and not assume the
role of investigator or advocate.
The process by which you may present questions for a witness
will be as follows: Once the attorneys have completed their
questioning of each witness, I will ask whether any juror has a
question that you would like to ask that witness. If so, you will
be asked to write that question down on a piece of paper and your
pad, not to sign or identify yourself on the paper, then fold the
paper and pass it to the court officer who will give it to me. I
may decide that some of the questions you submit should not be
asked or should only be asked in some modified form. Please do
not be offended if this happens.
Although I will not have a chance to explain to you, at the
time, why I have not asked or have modified one of your questions,
my decision not to ask a question will have nothing to do with the
quality of the question. There are written rules of evidence
which must be followed and employed to all questions, whether from
the attorneys or from you, and no one expects you to know those
rules when proposing a question.
I may decline to ask a question if it appears another witness
will be testifying later and will deal with the matter raised by
your question. There may be other reasons that questions are not
asked. Although I will review each question proposed with both
attorneys, the decision on whether to ask the question will be
mine; therefore, please do not speculate on why a question was not
asked or what the answer might have been. Do not count my
decision to ask or not ask your question for or against the State
or the defendant. And lastly, please do not give any more or less
weight to a question as to the witness solely because it was asked
by a juror.
FN3. Nebraska's decision prohibiting juror questioning of witnesses was
based on a trial in which jurors questioned witnesses directly, and a juror
engaged in an adversarial interrogation of a witness. Noting that proper
procedures, like judge control of juror questioning, could have avoided the
improper consequences of the questioning, a concurring justice wrote that
the majority's absolute ban on juror questioning "is as incomprehensible as
it is imprudent." State v. Zima, 468 N.W.2d 377, 380 (Neb. 1991)
(Shannahan, J., concuring).
FN4. In Wharton v. State, the Court held, "[t]he most obvious problem with
allowing jurors to question witnesses is the unfamiliarity of jurors with
the rules of evidence." 734 So. 2d 985, 990 (Miss. 1998). That objection
is eliminated by requiring that the judge screen questions to be sure that
they elicit admissible evidence.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
