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In a case of first impression, two judges of the 6th U.S. Circuit Court of Appeals have approved the practice of letting jurors in criminal cases submit questions for witnesses. A third judge said that the practice should be limited to complex cases with a compelling need for such questions and that safeguards should be established to protect the integrity of the fact-finding process. The appellate court panel issued its ruling in U.S. v. Collins, involving a November 1996 bank robbery. In the case, William Joseph Ward entered the Cardinal State Bank in Miami Township, Ohio, pointed a shotgun at teller Melody Demarest and demanded money. Before Demarest could respond, the gun went off, severely injuring her in the chest and shoulder. Ward fled the bank without any money, escaping in a getaway car driven by Travis Collins. Local and federal authorities searched in vain for the two men, who had worn ski masks and gloves to foil identification. Additionally, the bank’s video camera was not aimed in the right direction at the time of the attempted robbery. The case was finally broken by the use of criminal informants, to whom Collins had told the story of the aborted robbery. The informants led agents of the Federal Bureau of Identification to an apartment on the same street as the bank. Ward was arrested at the apartment. Collins was arrested at a hospital where he was visiting his wife and newborn child. The two men were indicted in Cincinnati U.S. District Court for bank robbery, conspiracy to commit bank robbery, and use of a firearm during a crime of violence. Ward was also charged with being a felon in possession of a firearm. QUESTIONS SUBMITTED IN WRITING Ward and Collins were tried before a jury of nine women and three men, with U.S. District Judge Sandra S. Beckwith presiding. After each witness testified, the judge asked the jurors whether they had any “substantial” questions before the witness left the stand. Jurors submitted written notes to the judge, who ruled on the propriety of their queries. Beckwith rejected some questions as inappropriate, in some cases for “technical/legal reasons.” The judge’s preliminary and final jury instructions warned that when an objection had been sustained, the jurors were to ignore the question, and not guess at the answer. The jurors rejected the defendants’ testimony that they were home at the time of the robbery, convicting them on all charges. Beckwith denied post-trial motions for a new trial based on government deals with an informant, ruling that the defense knew of the deals, one of which had not been discussed until after the jury verdict. Beckwith sentenced Ward and Collins to 20 and 19 years in prison, respectively. The sentences significantly exceeded federal guidelines, which the judge found appropriate because Ward had committed burglary in stealing the shotgun used in the robbery attempt. The Cincinnati defense attorneys, William J. Rapp and W. Kelly Johnson, argued that the sentences were longer than if the men had been convicted of the burglary in a separate trial, with that sentence added to the bank robbery sentence. Rapp and Johnson appealed their clients’ convictions and sentences on several grounds. The panel’s opinion, written by Judge Alan E. Norris, considered whether Beckwith had erred by allowing the jurors to ask questions and whether she had improperly calculated the sentences. Norris, joined by Judge Eugene E. Siler, Jr., recognized that other circuit courts — namely the 1st, 2nd and 4th Circuits — considered the practice and saw inherent dangers in allowing juror questions. The practice could encourage jurors to remove themselves from their primary role as neutral fact-finders, causing them to prematurely evaluate evidence and adopt a position before considering all the facts, the judge wrote. Additional dangers of the practice include the awkwardness of lawyers’ objections to questions posed by jurors, and the effect of juror questions on litigants’ trial strategies, Norris said. Jurors may take great umbrage at the thwarting of their pursuit of truth by rules they do not understand, and their camaraderie may cause them to place greater emphasis on questions asked by fellow jurors than those asked by counsel, the judge added. However, Norris further noted, there are positive aspects to the practice of juror questions: it can make for more attentive jurors, it can clarify points in jurors’ minds, and it can alert counsel that certain areas require further inquiry. Norris concluded, “Allowing jurors to ask questions during criminal trials is permissible and best left to the discretion of the trial judge, [but] the routine practice of juror questioning should be discouraged.” GETTING TO THE TRUTH OF THE MATTER Norris rejected the defense claim that the practice should be used only in complex cases with extraordinary or compelling circumstances, a position adopted by the 2nd Circuit. Instead, he accepted the government argument that the issue is whether questioning might so prejudice a party as to affect a trial outcome. To evaluate this issue in the context of the case at bar, the judge likened the practice to questioning by judges, and applied the 6th Circuit’s test of when such questioning becomes an abuse of discretion. Norris said a judge may ask questions in a long, complex trial if: the attorneys are unprepared or obstreperous; the facts become muddled and neither side can clear them up; a witness is difficult or offers unbelievable testimony that counsel fails to adequately probe; or the witness becomes confused. “While there are risks in the jurors’ perception of judge-initiated questions, such questions may be appropriate to get to the truth of the matter,” Norris wrote. “Complexity is only one reason why a judge might reasonably pose questions to a witness. The rationale behind allowing questions by judges also operates in the context of questions by jurors, albeit with greater possible risks. While juror questioning should be a rare practice, there will be occasions when a district court may determine that the potential benefits to allowing such questions will outweigh the risks.” In rejecting the claim of potential reversible error if juror questions were allowed in an uncomplicated case, Norris added, “Even cases that could not be described as complex may occasionally warrant questions by jurors, although we think that the balance of the risks to benefits is more likely to weigh in favor of juror questions in complex cases.” Norris suggested several prophylactic measures for occasions when a trial judge decides to allow juror questioning: counsel should be informed as soon as possible, and jurors should be told at the beginning of the trial that they may submit questions on important points; the court should explain that it may bar or rephrase a question and that jurors should draw no conclusion from such action by the judge; the questions should be submitted in writing, without the contents being disclosed to other jurors; and the questions should be reviewed by the court and counsel outside the jury’s presence. Finally, Norris suggested that counsel should be allowed to re-question the witness after the jury’s questions, and that jurors may occasionally be allowed to ask questions during witness testimony. As to whether Judge Beckwith exceeded the allowable upward departure in sentencing, Norris followed several 9th Circuit decisions in finding that a sentence is not excessive so long as it does not surpass the maximum range. In a concurring opinion, Judge Nathaniel R. Jones said jury questioning should be limited to the most compelling circumstances and should be narrowly tailored to avoid prejudicing the defendant’s right to a fair trial.

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