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The Colorado Supreme Court seems poised to allow jurors to question witnesses during criminal trials. Only Arizona has codified this practice. At least four states have banned it outright. Although the federal system and most states allow judges broad discretion in the conduct of trials in their courtrooms, jurors are rarely allowed to ask questions of witnesses. In these jurisdictions, no rules or statutes speak to the issue one way or another. “The burden of proof is on the state,” said Guss Guarino, executive director of the Colorado Criminal Defense Bar. “And this rule will shift the burden to the defense. It’s a complete undermining of the system. The role of the jury is not to ask questions but to answer just one: Has the government proved each and every element of the offense beyond a reasonable doubt?” Bill Ritter, the Denver district attorney, supports the rule change. “The rule will benefit the party — the government — that has to prove every element of an offense beyond a reasonable doubt,” Ritter said. “This will take us in the direction of trials being a search for truth.” Colorado had an eight-month pilot program in which, in some courtrooms, jurors were told they could question witnesses. The supreme court recently elicited written comments from judges, attorneys and the public about the proposed rule change. It held a public hearing on the matter two weeks ago. “A case that normally would have taken a week took two,” Lisa Wayne, a Denver criminal defense attorney, said she told the court. “The jurors asked 108 questions,” questioning every witness. Jurors submitted questions in writing to the judge, who held a conference at the bench with both sides in earshot of the court reporter, but not the jury. Attorneys could object to the form or substance of a question. The judge then ruled on any objections and asked the questions that were allowed. Wayne fears that less literate jurors might feel disenfranchised by the process. In Arizona, Deputy Maricopa County Attorney Maria Armijo, chief of the family violence bureau, has been a party to the process since that state’s law went into effect in 1995. IN LONG CASES, MORE QUESTIONS “I would say that in almost every case a juror asked questions — the more serious a case and the lengthier the case, the more questions that seem to get asked,” Armijo said. “For instance, engineers will ask a lot of ballistics questions. People in the medical field ask more medical-related questions to the medical examiner. But I think it benefits both sides because you get to see how the jurors are thinking, and it could change how we put on our case. If they’re having problems with a technical issue, I might present more witnesses.” State supreme court Justice Rebecca Love Kourlis, chair of the court’s committee on jury issues, will be one of the seven-member court who will decide, sometime this week, whether to implement the rule. The pilot program set out to address several concerns, Kourlis said. Would the rule change the burden of proof and have an impact on the right to remain silent? Would jurors seek to ask questions that couldn’t be posed and draw negative inferences when the question was not asked? And would it be cumbersome, taking up too much time? HONOR THE JUROR “It’s terribly important that jurors make good decisions, and that we elevate the role of the juror, that we afford as much honor to the juror as we can,” Kourlis said. “Adults learn by asking questions. They make better decisions. “There will be cases when it will be inappropriate and there will be occasional error that can be remedied in the normal appellate processes. Questions should be informational. Those that have an inquisitorial bent or an apparent bias should be screened out.” The rule would give the court the “discretion to prohibit or limit questioning in a particular trial for reasons related to the severity of the charges, the presence of significant suppressed evidence or for other good cause.”

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