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FORT LAUDERDALE, FLA. � Miami-Dade Circuit Judge David C. Miller recalls a trial in which a juror asked a defendant accused of burning his wife in a fire to bare his arms. The suspect maintained he accidentally lit a cigarette near a gas can, but a juror believed that, if that were the case, his arms would have also been burned. Miller allowed the question to be asked. The defense lawyer objected strenuously, and appealed the subsequent conviction on grounds that included the allowing of a juror to ask questions. The conviction was upheld. Miller, who has since been transferred to civil court, was considered a maverick in being one of the few judges to allow jurors to ask witnesses and sometimes suspects questions. Now, judges throughout the state of Florida are required to allow jurors to ask certain questions, as part of new, controversial jury rules that went into effect on Jan. 1. The jury rules were a long time coming. They were first passed by the Florida Legislature in 1999, as a byproduct of a truce between Republicans bent on tort reform and Democrats. A 22-person Jury Innovations Committee was tasked with reviewing every aspect of Florida’s state jury system and coming up with recommendations for change. But the new rules laid dormant until approved by the Florida Supreme Court on Oct. 4, 2007. The most controversial and significant new rule allows jurors in civil and criminal cases to ask questions during trials. Another substantive change permits jurors to take notes during trials. There were a plethora of other, less substantive changes, such as a requirement that judges nearly always allow readbacks of testimony, to deliver their final instructions before closing arguments and to give juries copies of written jury instructions for use during deliberations. Undermining process? The Miami chapter of the Florida Association of Criminal Defense Lawyers (FACDL) formally objected to the juror-questioning provision of the changes. In comments before the Florida Supreme Court, Miami attorneys Milton Hirsch and Brian Tannebaum of the FACDL stated that laymen-like jurors cannot understand the intricacies of the laws of evidence. “Permitting jurors to suggest questions to witnesses undermines the structure of trials as much as would permitting lawyers to send notes in to a deliberating jury suggesting appropriate topics for deliberation,” the two lawyers stated. Allowing jurors to question witnesses removes their neutral status and turns them into advocates, taking on the role of “detective, inquisitor, partisan.” “Neutrality goes by the boards in the effort to ‘solve the case,’ ” stated Hirsch and Tannebaum. “ But it is not the juror’s role to ‘solve the case.’ It is not the juror’s role to develop facts. It is the juror’s role to draw inferences and reach conclusions from facts developed by those whose role it is to develop facts.” A ‘disaster’ David O. Markus, a Miami criminal defense attorney and president of the Miami chapter of the Federal Bar Association, said, “allowing jurors to ask questions is like letting New Englanders call the plays for the Patriots. It sounds like fun, but it’s going to be a disaster.” Added Tannebaum: “Why can’t we keep things the way they were? We’ve had this system since the beginning of this country. This creates an unnecessary fourth arm of the trial. It allows jurors to basically think out loud.” Courts in various states have come down on different sides of the issue of juror questioning, particularly in criminal cases. Courts in Minnesota, Nebraska and Texas have disallowed juror questioning in criminal cases. But courts in Colorado and Hawaii decided that jurors could question witnesses at the discretion of the trial judge. Since he became a judge in 2000, through some 100 jury trials, Miller said he has always allowed jurors to pose questions, following a Florida Supreme Court opinion from the 1970s allowing such questioning. Miller required the questions to be submitted in writing to him and they were screened by him and both lawyers. But lawyers could object at sidebars, and Miller himself would not allow inadmissable questions to be asked, such as inquiries about a defendant’s prior criminal background.

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