Michigan has implemented some sweeping changes to the role of jurors and judges in trials, including allowing jury to ask questions of witnesses. I have some reservations about the changes below, but I am most concerned over the ability of judges to summarize the evidence. This could invite considerable bias and influence into trials.
One of the greatest problems that I have with trials in England is the pronounced role of judges in questioning witnesses and summarizing evidence. I have been before some highly biased judges who do everything they can to push a jury toward the prosecution. Many judges are former prosecutors or elected on “tough-on-crime” platforms. Currently, while such judges can rule against you on motions and instructions, the impact is mitigated by the fact that they cannot summarize the evidence. Judges have considerable influence over jurors who may be entirely unaware of bias.
This is not to disparage judges. Most judges are extremely fair and conscientious. However, every lawyer has encountered judges with hostile views of their clients or their claims. Michigan will magnify that problem by allowing this change. It will also increase appeals based on statements made by the court.
Here are the new rules: C4176247629
Source: Detroit News
Jonathan Turley
>It would be interesting to know why the Michigan bar is comfortable with the new rules.
Who says they are?
The comments made by the bar and by the public since these proposals were first floated in 2005 are collected at the court’s web site at
http://courts.michigan.gov/supremecourt/Resources/Administrative/2005-19-Comments.htm
From the new law:
(I) Juror Questions. The court may permit the jurors to ask questions of witnesses.
If the court permits jurors to ask questions, it must employ a procedure that
ensures that such questions are addressed to the witnesses by the court itself, that
inappropriate questions are not asked, and that the parties have an opportunity
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outside the hearing of the jury to object to the questions. The court shall inform
the jurors of the procedures to be followed for submitting questions to witnesses.
….
(K) Juror Discussion. In a civil case, after informing the jurors that they are not to
decide the case until they have heard all the evidence, instructions of law, and
arguments of counsel, the court may instruct the jurors that they are permitted to
discuss the evidence among themselves in the jury room during trial recesses.
The jurors should be instructed that such discussions may only take place when
all jurors are present and that such discussions must be clearly understood as
tentative pending final presentation of all evidence, instructions, and argument.
*******************************************
Questions from the jury seems to have a procedure in place to avoid the questions that would draw valid objections. How many opportunities a judge allows for such questioning and when the will be allowed seems to be up to the judge though.
Allowing jurors to discuss a matter may give rise to more bias and even ongoing bullying of some jurors by others though, I’ve never sat on a civil case, only criminal, and liked the idea of not being allowed to discuss the case. On the few times someone tried to strike up a premature conversation they had an agenda IMO and I liked being able to tell them ‘not until it’s done’.
Since we were all kept together during the course of the workday and not allowed to leave the jury room, I’d be unhappy being stuck listening to someone wanting to discuss the case and not being able to leave or in some way shut down the discussion. I have enough trouble not going off half cocked, I wouldn’t want that bias moved to a jury room.
Does anyone know the workings of a group named:
Families Against Mandatory Minimums
K street
Washington DC ?
Mike A.:
” Instead of commending my efforts, the judge rather pointedly noted that it was fortunate for my client that I had requested a jury trial.”
From a laymans point of view,its a crap shoot I know here in Jersey it would be,You have jurors who for the most part don’t want to be there and a defendant who definently dosen’t want to be there.
J. Brian Harris:
What you say makes a great deal of sense. But that’s even more reason to prevent what the Michigan rules will permit. What a jury hears is already filtered through the rules of evidence. And most juries understand that what the lawyers say is advocacy rather than evidence. A judge’s summary will inevitably be tainted by one or more of forms of bias you have listed.
There’s a reason why I avoid, with formidable diligence, doing Double Blind Studies. There is what I find to be a dastardly subtle bias inextricable from any and all Double Blind Studies.
It took a while for me to communicate enough of the nature of this Double Blind Study Bias to my thesis committee members sufficiently well that my dissertation was properly approved by my committee.
Of the method I used to avoid the pitfalls of the Double Blind Study Bias, one committee member remarked, regarding my non-blind methodology, “You could not have gotten the data any other way.”
Long ago, I observed that Double Blind Studies are grounded upon, imbrued with, and inextricable from, “Deception bias.”
In adequately explaining my Bayes Theorem based, system dynamics oriented, deception-averting research method, I described in detail every form of bias which my methodology was designed to minimize while also maximizing the accuracy of the research data I was acquiring.
As for bias and forms of bias which are inseparable from any process of judgment, I suggest getting a fairly recent Social Psychology text (Aronson, Wilson, & Akert is one such), looking up bias or biases in the index, diligently studying the text and associated references, and figuring out whether any form of judge-jury judgment can ever be free of serious reality-distorting bias(es).
My experience as to judgment bias being separable from judgments? No.
A partial list of identified forms of bias: Judgment bias. Correspondence bias. Self-serving bias. Out-group bias. In-group bias. Mirror-neuron bias. Fundamental attribution error bias. Time-confusion bias. Hindsight bias. Prejudice bias. Interpretation-association bias. Foresight bias. Negative event expectation bias. Post-trauma bias. Groupthink bias. Mistrust bias. Imago projection bias. Tradition bias. Consensus bias. Denial bias. Novelty bias. Superstition bias. Deception bias.
I can’t agree with these “new” rules. They are archaic.
There’s a reason scientists do Double Blind studies, people are biased, even without meaning to be.
A number of years ago I tried a case against a business partner of my client and received a favorable verdict. Opposing counsel and I met with the judge in chambers following the trial to discuss the judgment. Instead of commending my efforts, the judge rather pointedly noted that it was fortunate for my client that I had requested a jury trial. His comment made it abundantly clear to me why he had made some evidentiary rulings at trial that had struck me as simply wrong at the time. There is no doubt in my mind that had the judge conducted the trial under the new Michigan rules, the outcome might well have been adverse.
Regardless of how fair-minded a judge may be, his or her summary of a case will be colored by personal observations and mental impressions. In addition, the authority of a judge and even the physical layout of a typical courtroom will inevitably give his or her statements greater credibility in the minds of jurors. It would be interesting to know why the Michigan bar is comfortable with the new rules.
With respect to questions from jurors, I believe that may be helpful provided the questions are written in advance and reviewed (and revised if necessary) by counsel and the court outside of the presence of the jury. The rules appear to contemplate that sort of process. And I know from my single experience serving as a juror that jurors frequently have some very good questions.
I guess I disagree. I have seen, and heard, of many exec’s walking free because judges have determined that while they may have stolen money and lied they didn’t actually break any laws.
Jury nullification is a part of our system- unjust laws can be, basically, taken off the books by juries who think they are absurd. And people who should be in jail can be found guilty- even though the politicos they buy say they can do whatever they want.
I should be able to ask a bankster the following: Did your client lose money? Did you make money while you lost your clients money?
Guilty.
It’s a totally unworkable situation. Who wants to object to a juror’s inane question? As to JT’s comment about the fairness of judges, while it might be true in the main, there is a considerable phalanx of US Chamber of Commerce backed jurists for whom consumer rights is a dirty phrase. Take a look at the new HBO documentary “Hot Coffee” if you need more proof.
http://www.hbo.com/documentaries/hot-coffee/index.html
Having sat on a jury I’m not convinced it is a good idea to allow them to ask questions. Given that the law has certain rules about what can and can’t be said in some cases how can those two things be compatible?
The judges should stick to explaining the law, If I were the lawyer on either side I would not trust the judge to summarize a case I worked weeks on preparing even if he was trying to be fair. That leaves out I have been completely stripped of my belief that judges have to try to be fair any more.
85% of all judges in Michigan are former prosecutors…I would say that the vast majority of them are fair….but..there are about 20% of the judges that are hostile towards the defense…or defendant…it makes no difference if they like the defendants attorney or not….but the judges are very subtle about how they screw a defendant….one used to go off on the record….he was talked to by the JTC and is hostile only off the record..
That is why….videos are worth the extra expense…they show emotions and innuendos that paper can’t….
But then again…some judges have been doing this type of behavior for years….