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staff reporter The ohio supreme court has unanimously upheld a lower court ruling allowing jurors to submit questions to witnesses through a judge. The state high court ruling establishes that juror questions are not cause for reversal in the Buckeye State. State v. Fisher, 99 Ohio St. 3d 127, 2003-Ohio-2761. Juror questions are now banned in a dwindling number of states. They are: Georgia, Minnesota, Mississippi, Nebraska and Texas. [NLJ, Feb. 24.] The appellant in the Ohio case, Michael A. Fisher, was indicted for felony assault with a firearm in April 2000. Following his conviction, he appealed, claiming that the juror questioning was “inherently prejudicial.” ‘Common sense’ ruling The Ohio Supreme Court affirmed in its ruling that juries of the past have been confined to a purely passive role that is not as effective at finding the truth. Its ruling, the court asserts, is basic common sense. “If a juror is unclear as to a point in the proof, it makes good common sense to allow a question to be asked about it,” the court ruled. Chief Justice Thomas Moyer wrote the opinion. The Ohio Supreme Court has outlined specific guidelines for courts that choose to allow juror questions. All questions must be submitted in writing and are not to be discussed pending their presentation to the witness. The court must provide counsel an opportunity to object to each question at sidebar, or in some other way outside the presence of the jury. The trial court must also alert jurors not to “draw adverse inferences” if the court rejects the questions. Don Schumacher, a Cleveland-based solo practitioner who represented Fisher, said, “I think it’s an unfortunate decision . . . .The state always has the burden of proof to prove the case beyond a reasonable doubt . . . that entails them developing the facts themselves, not, in effect, getting an assist from the jury.” Franklin County Prosecuting Attorney Ron O’Brien, who tried the case for the state, does not wholly support the procedure. “I never have been in favor of it, but . . . if we can resolve for that juror the issue by asking a question that will lead to less questions raised during deliberation, it’s important to make the inquiry,” O’Brien said. In Ohio it has been rare for lower court judges to allow juror questions, according to Ohio Academy of Trial Lawyers’ President Peter Brodhead of Cleveland’s Spangenberg, Shibley and Liber. Under the new rules, defense lawyers may have to reassess how they approach cases, Brodhead noted. He believes more jurors will have the power to address issues that the defense purposefully did not call to the court’s attention. Altmann’s e-mail is [email protected].

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