Introduction
Judge Suntag took up our offer that we make in every newsletter to reach out to us. After talking with him I am changing the way I talk about "jury innovations". Mirriam-Webster's dictionary defines innovation as "1: a new idea, method or device 2: the introduction of something new."
The law values precedent so parties and attorneys can predict what a court will do. It is perhaps natural that lawyers and judges are wary of anything that has the label "innovation". Words matter.
Talking with Judge Suntag directed me to cases which show that jury innovations are not so "new" as I once thought. Perhaps a trip back in time would help convince the skeptics that these techniques are not so new. There is precedent for them and the precedent is not "new." I begin with jury questions. Judge Suntag's comments have been edited.
How did you get involved in what are commonly referred to as "jury innovations".
Back in the late 90's or early 2000's Tom Munsterman (NCSC) and Judge Michael Dann came to Vermont and gave a presentation on jury innovations which was very convincing. Our Supreme Court designed a research process and I volunteered as one of the judges. I kept track of all the questions in terms of the number and how much time it took to address them. I first heard of jurors asking questions at the National Judicial College and my first reaction was that you would have to be crazy to allow that. But once we started doing it I realized how fabulous an innovation it truly was.
Tell us about your experience.
I've had a minimum of 200 jury trials. In almost every one of those, with few exceptions early on, I would use jury innovations such as juror questions, making sure they can take notes, preliminary instructions which included what is going to have to be proven so they don't have to wait until the end to figure out what they were supposed to be listening for and debriefing the jurors after trial. I have probably spoken to over a thousand jurors including what they thought of the innovations. Speaking to jurors is the most fun I have in court.
You also allow jury questions in criminal cases. One of your cases reached the Supreme Court of Vermont back in 2004. Tell us about that.
I use the same innovations for both criminal and civil trials and, of course, I have many more criminal trials. The criminal case that our Supreme Court decided is State v. Doleszny. (844 A. 2d 773) It is a really deep and exhaustive decision on why jury questions are appropriate. My experience with all of this was that the trial lawyers who were good on their feet, they may have objected to this concept at the beginning before they used it. I would have as a lawyer. But once they went through a trial or two with juror questions they liked it. They were able to get a window into the decision-maker's mind when they still had a chance to do something about it. I don't know how you can beat that. The concerns about how it might shift burdens of proof, how it might put jurors in a different position were all debunked by the time we were done. The worst scenarios never happened. With debriefing jurors after trial I found they love it. They stay more interested, they stay more focused. I've debriefed jurors who have been in trials with juror questions and and trials without juror questions. They were able to compare for me. Allowing this type of access to the trial process resulted in them feeling more respected.
Postscript: Word Choice Matters
The piece above is only a portion of what Judge Suntag and I talked about. But, after reading the decision in Doleszny, I wanted to highlight it since it will change they way I talk about jury improvement techniques. The rest of my interview
The court in Doleszny wrote:
"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.")" (Emphasis added)
Quite frankly, I was shocked to read that juror questions were being used in North Carolina in 1907! Perhaps me using the word "innovation" in presentations did more harm than good. With judges so steeped in using precedent, was I working against our cause through poor word choice? Do all judges know that jury questions have been used in some courts for over a century! I am embarrassed to say that I did not. For my next presentation I intend to add more history and precedent into the mix. And if any of you have a better word than "innovation", please write to me with your suggestions.
As a final bonus I include Judge Suntag's instruction to the jurors regarding questions. It is succinct, but thorough and it is easy to understand. It was cited in its entirety in the Doleszny case and we provide it here:
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.