I’m one of those people who can’t help but shift into lecture mode whenever people complain about jury duty. I automatically launch into how jury duty is a privilege and that it and voting make living in our democratic society so special. Despite my civic pride, I hadn’t been called for jury duty since 1994 and hadn’t been on a jury since 1992.
So when I reported for jury duty earlier this month, it was without regret or trepidation. I hoped to be chosen for a trial, serve one day and leave with the satisfaction that I’d done my duty. When I was taken to a district courtroom for a criminal case that was scheduled to take more than a week, my altruism was slightly shaken by the reality of the disruption to my life of participating a case that would take that long. Ultimately, I was chosen, and the case wrapped up in five days.
The biggest difference since the last time I’d served was the opportunity for jurors to ask questions. After lawyers finished questioning each witness, the judge asked the jury whether the witness could be excused. Jurors were then allowed to submit questions. The judge reviewed each question to make sure it was proper and allowed both prosecution and defense counsel to object. If the question was deemed proper and survived objections, the judge asked it. After the witness answered, the lawyers were able to ask follow-up questions.
As the trial proceeded, I found myself wondering if jury questions were changing the outcomes of cases. I thought if perceptive lawyers could gain insight into what jurors were thinking, they might be more willing to enter into plea agreements before trials ended.
The Colorado Supreme Court allowed jurors to ask questions in trials beginning in 2004 after a pilot project was completed and evaluated. During and after the pilot, questions about whether juror questions overly influence verdicts, excessively or unnecessarily delayed trials, created prejudice for either party and influenced whether defendants chose to testify were asked and evaluated. Additionally, analysis was done about how the ability to ask questions affected jurors. At the end of the pilot, the majority of people tasked with evaluating the impacts of juror questions supported allowing jurors to ask questions. A minority report opposing the change was also issued, and the Supreme Court endorsed the change by a 5-2 vote. We now have five years worth of experience of jurors playing this role, and it has been adopted and accepted. Neither the courts nor the bar association has done a formal analysis of the effects or has plans to do so.
I asked Margie Enquist, the judge in my case, whether she thought lawyers’ insights into jurors thoughts through their questions had led to more cases being pled out during trials, and she said no. She said one concern she’d heard before juror questioning was implemented was that jurors would fill gaps in prosecutors’ cases, but that her experience was that juror questions were no more favorable to one side than the other. That was how it worked in my case as well. Jurors’ questions were submitted when members of the jury thought there was a hole in the facts we were to consider, and I didn’t detect bias one way or the other.
Jury duty is both a privilege and responsibility. It seems to be an enhanced experience when jurors are more involved, but it probably would be beneficial to analyze the impacts now that we have five years of experience to consider.
Greg Romberg is president of Romberg and Associates, a government relations and public affairs firm. He lives in Evergreen with his wife, Laurie, and three daughters.