Morrison v. State

CAMPBELL, Judge,

dissenting.

As I read the majority opinion, it contains two distinct arguments to support its conclusion that juror questioning in state criminal trials is always unlawful: (1) trial courts have no power to allow such questioning, and (2) in any event, such questioning must not be allowed because its “benefits ... fade to insignificance in light of the perils presented” to our traditional adversary system. Because neither argument has an adequate foundation, I respectfully dissent.

The threshold question presented is whether our state trial courts have the power to allow juror questioning in the course of a criminal trial. The majority answers this question in the negative, explaining that it “know[s] of no authority establishing or authorizing jurors to ask questions of witnesses.” In my view, the majority has misperceived the nature of the judicial power granted by our state constitution.

The Texas Constitution explicitly vests the judicial power of the state in the courts. Tex. Const, art. 5, § 1. The core of this constitutional grant of power, as we have previously recognized, includes the power (1) to receive evidence; (2) to decide the issues of fact raised by the pleadings; (3) to decide the relevant questions of law; (4) to enter a final judgment on the facts and the law; and (5) to execute the final judgment and sentence. Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Cr.App.1990); Kelley v. State, 676 S.W.2d 104, 107 (Tex.Cr.App.1984). Furthermore, necessarily included within the constitutional grant of judicial power are all powers reasonably proper and necessary for the effective exercise of the core judicial powers. State v. Johnson, 821 S.W.2d 609, 612-613 (Tex.Cr.App.1991); Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-399 (Tex.1979). Therefore, if a trial court reasonably concludes that juror questioning is necessary for the proper receipt of evidence and the discovery of the truth, it has the power to allow such questioning, at least in the absence of a valid statute or court-made rule to the contrary.

The issue of power aside, the majority also condemns juror questioning on the ground it

encourages jurors to depart from their role as passive listeners and assume an active adversarial or inquisitorial stance. Such participation inevitably leads the inquirer to draw conclusions or settle on a given legal theory before the parties have completed their presentations, and *901 before the court has instructed the jury on the law of the case.

The majority further opines that “the dangers inherent in such a practice cannot be adequately circumvented by the imposition of procedural safeguards.” With all due respect, this is nothing but pseudo-psychological speculation unsupported by reason or evidence. Indeed, a recent empirical study conducted by the American Judicature Society found “no evidence to support the existence of any harmful consequences” of juror questioning, provided that a few simple procedural safeguards were implemented. See C. Michel, Should Jurors Be Allowed to Pose Written Questions to Witnesses During a Trial? 55 Tex.B.J. 1020, 1024 (1992).

Of the dozens of state and federal jurisdictions that have considered the issue so far, apparently only one (Georgia) prohibits juror questioning of any kind. See Comment, Juror Questions: A Survey of Theory and Use, 55 Mo.L.Rev. 817, 839-840 (1990). Every other jurisdiction has recognized that valid reasons exist for leaving juror questioning to the sound discretion of the trial court. See, e.g., United States v. Witt, 215 F.2d 580 (2d Cir.), cert. denied, 348 U.S. 887 , 75 S.Ct. 207 , 99 L.Ed. 697 (1954); United States v. Polowichak, 783 F.2d 410 (4th Cir.1986); United States v. Callahan, 588 F.2d 1078 (5th Cir.), cert. denied, 444 U.S. 826 , 100 S.Ct. 49 , 62 L.Ed.2d 33 (1979); United States v. Gonzales, 424 F.2d 1055 (9th Cir.1970); Nelson v. State, 257 Ark. 1 , 513 S.W.2d 496 (1974); Cheeks v. State, 266 Ind. 190 , 361 N.E.2d 906 (1977). As the United States Court of Appeals for the Fifth Circuit explained in Callahan :

There is nothing improper about the practice of allowing occasional questions from jurors to be asked of witnesses. If a juror is unclear as to a point in the proof, it makes good common sense to allow questions to be asked about it. If nothing else, the question should alert trial counsel that a particular factual issue may need more extensive development. Trials exist to develop truth. It may sometimes be that counsel are so familiar with a case that they fail to see problems that would naturally bother a juror who is presented with the facts the first time.

588 F.2d at 1086 . Moreover, it is important to realize that pertinent juror questions can be as helpful to the defense as to the State in a criminal trial.

In my view, trial courts should have the discretion to allow juror questioning provided they follow these safeguards to protect the adversary process:

First, the trial judge should notify counsel before trial that she intends to allow juror questions. Such pre-trial warnings would enable counsel to modify their trial strategies, if need be, to accommodate the innovation.

Second, the trial judge should inform the jurors before trial that, although their primary duty is to decide the facts from the evidence presented by counsel, they will have a limited right to ask questions. The trial judge should also explain the overall procedure involved.

Third, the court should allow the juror interrogation immediately after both counsel have examined a witness, while the jurors’ questions are still fresh in their minds and the witness is still available.

Fourth, the juror questions should be kept relatively few in number but otherwise limited only by the Texas Rules of Criminal Evidence.

Fifth, the questions should be submitted in writing to the trial judge, who should prohibit, sua sponte, clearly improper questions.

Sixth, counsel should be able to object to any question, and get a ruling on the objection, outside the hearing of the jury. 1

Seventh, when the judge rejects a juror’s question, she should briefly but carefully explain the rejection to the jury. Such an explanation will help prevent speculation *902 by the jury both as to the reasons for the rejection and the forbidden answer.

Eighth, if the judge accepts the question, she should ask it of the witness herself.

Ninth, after the jury interrogation, counsel should have the opportunity to re-examine the witness via the usual procedure for direct and cross-examination. The re-examination should be restricted to the scope of the subject matter of the jurors’ questions.

I am satisfied that with these safeguards, there would be no substantial possibility of any harm to our traditional adversary system. If, as seems extremely unlikely, it was later determined that juror questioning was truly threatening our adversary system, it could be prohibited by rule.

Until there is a specific, valid legislative or constitutional prohibition against juror questioning, it would seem that appellate judges are ill-equipped to decide policy questions regarding this matter that impact upon the fair and efficient administration of justice in our trial courts. To the majority’s decision to usurp this trial court function, I dissent.

McCORMICK, P.J., and WHITE, J„ join.

. "If questions [by the jury] are allowed, a requirement that they be submitted to the judge in writing will facilitate consideration in the absence of the jury and avoid prejudice to an objecting party.” 1 J. Strong (ed.), McCormick on Evidence § 8, n. 4 (1992).