By Jo Mathis
When Macomb County Circuit Court Judge David Viviano asks jurists if they'd like to ask a question of a witness, they often look surprised.
Jurors are allowed to ask the witness a question?
Viviano was among the judges asked by the Michigan Supreme Court to test proposed jury changes during a two-year pilot program. The reforms will take effect Sept. 1 and include such things as allowing jurors to take notes, and ask questions of witnesses.
Viviano said jurors' questions give lawyers a sense of what they've found interesting or confusing.
"And jurors will sometimes ask questions that maybe lawyers are afraid to ask because they don't want to know the answer," he said. "They do delve into areas that are sometimes a little uncomfortable for the lawyers, but if they're appropriate questions, I'll typically allow them."
Most of the reforms give the trial judge the discretion to use them or not, and the expectation is that trial judges will adopt these reforms whenever it's appropriate in a particular case, said Marcia McBrien, public information office at the Michigan Supreme Court.
Some of the rules are already in place, but the reforms will expand upon them. The earlier version of the criminal procedure rules already provided for jurors to take notes and ask questions -- with the judge's permission. But until now, there was no corresponding rule for civil cases.
One of the new provisions permits the jury in civil cases to discuss the evidence before final deliberations.
As it is now, jurors are not allowed to discuss the case with anyone, including fellow jurors prior to deliberations. Jurors will now be able to discuss the case while the case is pending as long as they're all in the jury room. They will be told to keep an open mind and not make any decisions until after they've heard all the evidence in the case.
Defense lawyers might not like jurors talking about the case until they've presented their side, Viviano said.
"In my mind, this is a common sense reform," he said. "Jury service for people is inconvenient, and turns out to be for most people a very interesting life experience. By letting people talk to each other about it in the jury room, you're giving them an outlet to talk about this interesting experience they're going through. And secondly, it seems to be more logical to talk about the witnesses' testimony right after you've heard it."
For now, at least, the Michigan Supreme Court will not allow jurors in criminal cases to discuss the case prior to deliberations. The constitutionality of pre-final deliberation discussion in criminal cases is at issue in a pending case.
Wayne County prosecutor Augustus Hutting, who retired last week after 35 years, said he'll be interested to see how the reforms go over in the courtroom.
He said he likes that jurors will be encouraged to ask questions, and may take into the jury room the reference document as well as any exhibits and writings admitted into evidence.
And he likes that expert witnesses may be encouraged to testify sequentially so they'll be present for the opposing expert's testimony. That way, he said, the expert can help counsel formulate questions for cross-examination.
Hutting is particularly interested in the change that says judges may "fairly and impartially sum up the evidence" after closing arguments, while also reminding jurors that they must decide fact issues for themselves. The rule bars judges from commenting on a witness's credibility or stating a conclusion "on the ultimate issue of fact before the jury."
"Which judges are going to want to take time to do that?" Hutting asked with a smile.
As a judge in the busiest trial court in the state, Viviano said there is simply no time to review and sum up each trial. In fact, it's the one proposal he voted against.
The operative word, he explained, is "may." The change is optional.
He said lawyers are concerned that the manner in which the evidence is summed up could have a significant effect on the outcome of the trial.
Viviano said he talked to jurors about the reforms at the end of each trial in which they were tested, and the reaction was overwhelmingly positive.
"They were overwhelmingly in favor of them," he said. "I think it's exactly the kind of thing that all of us in government should be doing particularly right now at this point in our history."
Published: Tue, Jul 5, 2011