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Questions from the jury box Mail Tribune / Bob Pennell More jurors in Jackson County courtrooms are getting a chance to ask questions during trials, under an experiment being conducted by Judge Dan Harris. Medford lawyer Carl Caplan makes a closing argument last week before Judge William G. Carter and a jury that was not part of the question-asking experiment. A Jackson County judge is among those giving jurors a greater voice in trials By Chris Bristol It was the kind of question any normal, semi-paying-attention juror would want to ask: Can you sue a dead guy? Short answer: Of course you can. After all, this is the United States of America, home of the free and the brave and the litigious. If you can sue McDonald�s for spilling a cup of hot coffee that nobody but you put between your legs, it�s safe to say you can sue a dead guy, too. Juror questions Here are the instructions Judge Dan Harris gives jurors about asking questions. During the trial you will be allowed to ask questions. This is an experimental procedure designed to allow jurors to participate more directly in the trial process. You may participate in other cases where the judges will not allow you to ask questions. In asking questions, you should proceed as follows: 1. Write your question down on a sheet from your note pad; fold the paper in half and pass it to juror No. 6, who will place the question on the corner of the jury box. 2. After each witness�s testimony is concluded, I will have the bailiff hand me the questions you have submitted for that witness. I will review the questions with the attorneys before asking the questions to the witness. The attorneys will be allowed to ask follow-up questions. Questions should be reserved for important points only. The sole purpose of juror questions is to clarify the testimony, not to comment on it or express any opinion about it. Jurors are not to argue with the witness. Jurors are not to reach any definite conclusions until the end of the case. There are some questions that the court will not ask, or will not ask in the form presented, because of the rules of evidence or other legal reasons. Jurors are to draw no inference if a question is not asked. In most cases, I can tell you why a question cannot be asked. Jurors are not to weigh the answers to their questions more heavily than other evidence in the case. But America�s addiction to litigation was not the point. The point was that a juror really did ask that very question at the beginning of a personal-injury civil trial last year in Jackson County. And the judge let him. In the past, questions of any sort from jurors were not permitted in Oregon courts. If you were on a jury and you had a question, even if it seemed like a really good one, you kept it to yourself. The same was true of most states, even though it�s expressly against the rules only in Mississippi. Although the practice dates to the late 1800s, for whatever reason over time silent juries became the unofficial law of the land. Until now. Joining a handful of states led by Arizona, a group that represents Oregon�s judiciary this month (Sept. 9) voted unanimously to let jurors ask questions during trials. The Hon. Daniel L. Harris was the judge who fielded the dead-guy question. As the state�s leading advocate of jury questions, the Jackson County judge was happy to explain the law. "It was a legitimate question," he mused. "Judges get to ask questions. It seems to me that the same opportunity should be afforded jurors, too." Harris said the idea behind questions and other jury reforms is to make jury participation more meaningful. He noted that disobedience of court-ordered summons to jury duty has coincided with a general trend of civic apathy, particularly with regard to voter turnout. At roughly 70 percent, Jackson County has one of the highest rates of jury turnout in the state. Multnomah County, on the other hand, has a turnout of barely 30 percent. Some judges in Portland have responded by issuing arrest warrants for absent jurors. Jury pools are selected from voter rolls, and voter registration is also off. "We�ve seen a troubling decline in enthusiasm for jury service over the last few decades," Harris explained. "The goal of this is to make the process more meaningful and enjoyable for the jurors." Harris began exploring so-called "jury reform" soon after he took office in 1997. An Ashland trial attorney with 15 years experience, he was surprised and saddened to find that many jurors viewed their service in a negative way � even afterward. He started researching reforms. Among the two most important changes backed by the American Bar Association: providing jurors with written instructions before they begin deliberating and letting them ask questions during trial. Since there was no rule in Oregon against it, in the spring of 1999 Harris decided to adopt some of the ABA�s suggestions. A Multnomah County judge had been letting juries ask questions orally for several years. Harris decided to allow it, too, as long as the questions were in writing. "I knew I could do it and I just started doing it," he said. "I had no idea how it would work." At the beginning of every trial, Harris reads the jury a set of instructions that explains how they can ask questions. Attorneys in the case review the questions with the judge. "I would say at least 90 percent of the questions that get asked are good ones," Harris said. "Even the �bad� ones are usually not really bad. Jurors often want to know about insurance in civil cases, and I have to explain to them that they are triers of fact. Insurance is usually an issue for the court to sort out. It�s not a factual issue; negligence and damages are. "Whenever I tell (jurors) that, they�re always relieved. They simply want to know their role." Proponents say letting jurors ask questions improves their overall interest in a case, deepens their concentration on evidence and testimony and heightens their awareness of their fact-finding mission. As a result, they make better decisions. Critics worry that allowing questions from jurors may alter the dynamics of traditional relationships among jurors, witnesses and attorneys, transforming jurors from neutral arbiters into active advocates or adversaries. Medford attorney Kelly Andersen said he was nervous about the rules at first. A personal-injury specialist, he was involved in one of the first civil trials last year in which Harris let jurors ask questions. "Some of the questions were solid gold," he said. "It also gives you some insight into what jurors are thinking. ... It�s a shame if there�s a perfectly legitimate question that�s not answered only because nobody but a juror thought of it." The key is to have built-in safeguards, primarily by ensuring relevance, requiring questions in writing and providing instructions that neither encourages nor discourages the practice. Andersen praised Harris� balancing act. "There has to be a judicious balance between the option of asking questions and pushing it too far, where jurors begin to act like attorneys," he said. Multnomah County Circuit Judge Robert P. Jones, an Oregon pioneer in jury reform, has allowed jurors to ask questions in hundreds of trials the past five years. The practice has been well received by lawyers and jurors � although his fellow judges remain skeptical. "The jurors love it,�� said a Jones judicial assistant. "We�ve gotten very good feedback from the jurors that they really like being involved." As one of the newest members of the Council on Court Procedures, Harris was in the perfect position to champion reforms. At an annual conference at Salishan in April, he queried the 150 judges present and found that only five or six allowed jury questions; 60 percent said they would allow it in the future. But only if the new rules were flexible, they said. The council readily agreed, making three of the four changes discretionary. Only the rule for instructing juries on the legal principles that govern trials was made mandatory. The new rules do not technically take effect until Jan. 1 (although, as Harris has done, judges can adopt them earlier if they choose). The Legislature can veto the lot, but lawmakers rarely override the council. "A lot of judges won�t do things in their courtroom unless they have clear authorization," he said. "Now that it�s a rule, it will gain wider acceptance and become more of a common practice." Changes made for jurors An advisory panel to the Legislature known as the Council on Court Procedures has adopted several changes sought by Jackson County Judge Dan Harris as a way of retarding a decades-long trend of low jury turnout. These rules: Allow attorneys to make a short statement of the facts before the jury is selected from the pool. Require the judge to instruct the jury on legal principles governing trials before evidence is received. Allow jurors to ask questions of witnesses and the court, in writing. Allow judges to instruct the jury on the laws at issue before or after closing arguments. As one of the newest members of the council, Harris was in the perfect position to champion reforms. At an annual conference at Salishan in April, he queried the 150 judges present and found that only five or six allowed jury questions; 60 percent said they would allow it in the future. But only if the new rules were flexible, they said. The council readily agreed, making three of the four changes discretionary. Only the rule for instructing juries on the legal principles that govern trials was made mandatory. The new rules do not technically take effect until Jan. 1 (although judges can, as Harris has done, adopt them earlier if they choose). The Legislature can veto the lot, but lawmakers rarely override the council. "A lot of judges won�t do things in their courtroom unless they have clear authorization," he said. "Now that it�s a rule, it will gain wider acceptance and become more of a common practice." Another change taking effect next year is more money for jury duty. Effective July 1, jurors who serve in trials that last more than two days will be paid minimum wage for each hour served, not to exceed $50 a day (jurors will still earn $10 per day for the first two days). Harris estimates that Jackson County doesn�t see more than 10 criminal and 15 civil trials a year that go more than two days. Harris said he is also supports two more rule changes: post-trial conferences in which attorneys meet with jurors to discuss just-decided cases, and mandatory written instructions. Obituaries | Sports | Business | Classifieds | Tempo | Prime Times | So Oregon Sites | Outdoor Journal | Subscribe | Contact | Movies | Advertise | Real Estate Showcase | Archive | Editorials | Letters to the editor | Religion | Wake-up Call | NIE | Cyber Chef | Job Network | So Oregon Weather | WSJ Northwest | Forums | AP Wire | AP Money | F.A.Q. | Awards Ottaway Newspapers, Inc. The Community Newspaper Subsidiary of Dow Jones & Co, Inc Copyright �The Mail Tribune 2000, Medford, Oregon USA