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SACRAMENTO � The Judicial Council will consider a series of jury reforms today, including a rule that would encourage judges to allow jurors to submit written questions for witnesses � a practice that could put some courts at odds with the Ninth Circuit U.S. Court of Appeals. Trial court judges in California already have the authority to decide whether juries in their courtrooms can pose questions. But earlier this year, the Administrative Office of the Courts circulated a proposal to require all judges to accept jurors’ questions unless they found “good cause” to limit or eliminate the practice. AOC staffers said the mandatory language is consistent with 11 years of recommendations from Judicial Council committees that concluded that a jury’s ability to ask questions enhanced a juror’s fact-finding role. Presiding Justice Judith McConnell of the Fourth District Court of Appeal chaired a steering committee that reviewed the AOC’s recommendations (.pdf). “It’s a good idea for judges to allow this kind of practice because when jurors are more active participants � they’re better learners,” she said Thursday. But 33 judges and legal organizations, including the California Judges Association, filed written criticisms of the plan, most citing its lack of discretion. Los Angeles County Superior Court Judge Robert Dukes wrote that such a requirement “is tantamount to swatting a fly with a sledge hammer.” Dukes said he has always allowed jury questions in his two decades on the bench, but he doesn’t think he should be required to do that. “There is insufficient showing that any rule is necessary, but if the council must have a rule on everything we do, let it be permissive rather than mandatory,” he concluded. Alameda County Superior Court Judge Ronald Sabraw, one of the few supporters of the original proposal, said the “good cause” exception preserved judges’ discretion. “I have not found the practice burdensome or excessive and there has never been a trial where a juror has abused the opportunity to submit written questions,” he wrote. But in light of the complaints, AOC staffers returned judges’ discretion. The proposal now says judges “should” allow jurors to ask questions through the bench. Peter Glaessner, president of the Association of Defense Council of Northern California and Nevada, said his organization still has concerns with the “should” language. “It seems to presume that questions should be allowed and I just think that should be left to a judge’s discretion,” Glaessner said. “I don’t believe that it is the intended purpose of the rules of court to create best practices.” The recommended language appears to conflict with the Ninth Circuit’s model jury instructions. In “A Manual on Jury Trial Procedures,” a Ninth Circuit committee specifically “recommends against encouraging jurors to ask questions.” Although the Ninth Circuit hears few civil cases originating in state court, habeas corpus cases often go to the appellate court. Allowing jury questions in a case might give defense counsel ammunition in an appeal. Asked about the Ninth Circuit language, McConnell noted that the revised rule would allow judges to bar questions at their discretion. At its meeting today, the Judicial Council will also consider authorizing judges to allow attorneys to address potential jurors briefly before voir dire, to encourage counsel to provide jurors with notebooks containing some trial-related materials and to provide clarifying instructions or even additional arguments from counsel to jurors at impasse.

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