# Morrison v. State

> Court of Criminal Appeals of Texas · December 16, 1992 · 845 S.W.2d 882

URL: https://www.frixlaw.com/law-library/cases/9771267

## Case

- **Full name:** Steven MORRISON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 16, 1992
- **Citations:** 845 S.W.2d 882; 1992 Tex. Crim. App. LEXIS 243; 1992 WL 367513
- **Precedential status:** Published
- **Opinion:** Dissent by Benavides
- **Judges:** Maloney, Clinton, Campbell, Benavides, Miller, McCormick
- **Cited by:** 97 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9771267

## How later opinions describe it (automated extraction)

- holding that jurors are not permitted to question witnesses in criminal cases
- holding that juror questioning is improper in a criminal case
- reversing case where juror question was not asked, but question provoked the prosecution to recall a witness to address the juror’s concern

## Opinion text

BENAVIDES, Judge,
dissenting.
Ours is an adversarial system. 1 Although it has serious drawbacks in some respects, as all systems do, it nevertheless assists the truth-finding process in ways no other system really can. 2 For example, when two or more parties are in contention, the impetus for investigating and presenting evidence which favors each is strongest with the party himself. This is precisely because each party is necessarily partial to his own position. If left alone in charge of finding evidence upon which the dispute might be resolved, he could reasonably be expected to discover and present all of the evidence supporting his own position and none of that supporting the position of his opponent. Consequently, when each party to the litigation is permitted equal latitude in this regard, it is reasonable to anticipate a more thorough catalog of the relevant evidence than would be assembled by a strictly impartial investigator. A core assurance of our adversary system is, therefore, that every party have control, concurrent with that of every other party, over the discovery and tender of evidence, the application of optional rules affecting its admissibility, and the argument of its significance to the factfinder.
Likewise, it is essential that the decision-makers in an adversary system remain generally neutral and passive throughout all phases of litigation devoted to the production of evidence. Just as it would be anti-systemic to deprive a party of loyally biased advocacy for his own position, so also would it contradict the basic principles of our jurisprudence to allow partisan advocacy by judges or jurors at any time before an ultimate issue has been given over to them for disposition. For this reason, trial judges should be especially sensitive about their own impartiality and that of the jurors. Decisionmakers, both as to law and fact, are to remain nonpartisan and uncommitted until the presentation of evidence and argument is concluded. Our jurispru *903 dence thus divides the responsibility for investigating and deciding in such a way that advocates do not judge and judges do not advocate. The courts in such a system are not at liberty, at least absent legislation, to control or limit the production of evidence in such a way as to undermine these fundamental values.
Texas is fiercely adversarial. Certainly as regards the participation of trial judges in the examination of witnesses, our state is second to none in its disapproval of non-adversarial methods. For example, every other state which has enacted the Federal Rules of Evidence except Oregon has adopted some version of Rule 614 authorizing trial judges to both call and examine witnesses on their own volition. 3 Texas, in stark contrast, has rejected Rule 614 altogether, both in civil and in criminal litigation.
Nevertheless, this Court has often approved the practice of trial judges propounding questions to witnesses called by the parties, at least when it might fairly be said that the purpose of such questioning was to elicit information or to clarify issues, and not to advocate a partisan position. 4 If nothing else, such approval indicates our willingness to afford trial judges a measure of discretion in practice which has not been specifically afforded them by rule or statute. 5 Indeed, it is not inappropriate that legal systems sometimes be allowed to evolve in response to preferred methods of judges or practitioners. 6 It is *904 simply no longer realistic to insist upon a rigorously adversarial discipline in the face of nonadversarial methods long accepted in practice and by now an established part of our authoritative decisional law.
Many of our sister states have condoned, often with some trepidation, the questioning of witnesses by jurors. 7 All federal circuits to have considered the matter have also tolerated it, although it has been commended by none but the Fifth. 8 Others usually find the practice disturbing but discretionary with the trial judge. 9 Clearly, methods allowing jurors to ask questions are gaining momentum in the trial courts. 10 The trial courts of Texas are now experimenting with such methods to the extent that it now commands our attention. I am aware of four opinions from intermediate appellate courts in Texas addressing the issue. 11 Consistent with the treatment of the question by other jurisdictions, one of these finds no error in the practice, two approve it over urgent dissent, and one accepts it only with serious reservations.
I acknowledge that the remarkable practice of permitting participation by jurors in the production of evidence at trial impugns adversary procedure because it diminishes juror passivity and interferes with the usual assignment of responsibility for nonpro-duction of evidence, two of the essential features distinguishing our system from inquisitorial models. But when such participation is conscientiously subjected to the kind of judicial control which effectively prevents advocacy or premature commitment by the jurors, I do not believe that the fundamental values of our adversary system are significantly compromised. Accordingly, I cannot vote categorically to prohibit evolution of the system in this way.
The adversary process, as any institutional process, has some undesirable side effects. However we may relish a contest between talented advocates because we think the outcome of trial to depend more on their respective skills than on the relative merits of their positions, we do not pretend that the official goal of such a *905 contest is really to identify the better lawyer. And, while we accept the occasional incompetence or inadvertence of attorneys which might sometimes produce avoidable losses for litigants, both public and private, we do not think that the system is working well when this happens. 12 Rather, in spite of its shortcomings, including many produced by the adversary process itself, we still believe our methods of adjudication to be intended mainly, although not exclusively, for the discovery of truth. 13 For this reason, trial judges should be allowed to implement truth-finding measures not forbidden by law so long as they do not thereby compromise fundamental standards of the adversary system.
I believe that the submission of questions from the jury is a permissible truth-finding method whenever it is scrupulously subjected to normal adversarial examination and is conducted in such a way that jurors do not become advocates for either side. 14 This means, of course, that jurors should not be permitted to investigate outside the courtroom or participate in a courtroom investigation which excludes either party or his lawful representative, except as otherwise provided by law. 15 Questions propounded by jurors to witnesses should first be made subject to objection from all parties outside the jury’s presence. Perhaps of greatest importance, jurors should not be permitted to question at such length or in such manner as to indicate a premature commitment in the case. And it goes without saying, of course, that the practice of jury questioning should never be conducted in such a way as to violate the positive law.
In the instant cause, one of the jurors wanted a witness to be asked whether any of Appellant’s blood had been discovered at the scene. 16 Because the question would have called for hearsay, Appellant’s objection to it was sustained. But the State later recalled the same witness and was permitted over a further objection to elicit from him that Appellant did not appear to be injured at the time of his arrest, shortly after the incident. From my reading of the record, it appears that this testimony was relevant, if at all, only to Appellant’s un-perfected claim of self-defense or to the kindred issue of sudden passion arising from adequate cause, which was actually raised by other evidence in the ease. 17
*906 Appellant insists that the practice of jurors questioning witnesses is only a thinly disguised means of communication between jurors and lawyers which should be prohibited both to deter jurors from becoming advocates and to prevent lawyers from gaining potentially advantageous tactical information about juror thought processes. The State, on the other hand, argues that the trial judge did not commit an abuse of discretion in this case because his supervision of juror questioning observed all of the safeguards thought to be necessary by other jurisdictions, because the practice is not inherently unfair to either party, and because an otherwise impartial request for information does not impugn juror neutrality just because it inspires one of the advocates to produce further evidence.
As applied to the instant case, I believe that the State has the better of this argument. I do not believe that receipt from the jury of a neutral question, which might produce an answer advantageous to either side, such as the one propounded here, at all impugns legitimate aims of the adversary process or compromises the impartiality of jurors. Nor, in my judgment, does it produce a significant danger that jurors will be prematurely committed to a certain view of the case in a way which orthodox adversary procedure is designed to avoid. I am not unmindful that the burden of proof always operates to disadvantage the party who bears it and that, because an issue of sudden passion arising from adequate cause was actually submitted for jury consideration in this case, it was the State’s burden to disprove it beyond reasonable doubt. Certainly the question with which we are here concerned was meant to supply evidence pertinent to that issue. Had it not been asked at all, the State might thus have suffered the incremental disadvantage assigned by the burden of proof whenever there is an absence or deficiency of relevant evidence on an ultimate issue.
But the burden of proof is not a device for institutionalizing oversight or incompetence. Just as we have allowed the neutral intervention of trial judges in witness interrogation even when it incidentally affects the adversary contest, I am now persuaded that a similar indulgence for jury questioning is also indicated. Because the question in this case was not itself a partisan inquiry, any disadvantage actually suffered by Appellant was not the result of an institutional unfairness. Accordingly, I would hold that the trial judge did not err to receive it or make it known to the parties.
In the instant cause, Appellant complained only that the practice at his trial violated basic principles of adversary litigation and jury impartiality. He nowhere suggested that the procedure ran afoul of any specific law, rule, or settled practice. This is, of course, something of a logistical problem for the Court, forcing it to hold that the practice amounts to reversible error, not because the law forbids it, but because there “is no authority establishing or authorizing jurors to ask questions of witnesses in the criminal jurisprudence of this state[.]” at 889. But, in our system of jurisprudence, that which is not forbidden is generally allowed. Although the Court here advances appropriate concerns about the desirability of juror questioning, it omits to identify in what respect the law was offended by the procedure. Specifically, it identifies no statutory or constitutional violation, and makes only a weak case of fundamental incompatibility with the adversary system as a whole. Instead, it seems merely to reject on policy grounds an increasingly well-received tool of litigation which has been categorically forbidden by only one other jurisdiction in the country.
I do not, of course, mean to suggest that the myriad evidentiary and procedural rules so characteristic of the adversary process may be at all compromised in the interest of truth-finding. I differ from the Court only inasmuch as I would hold that a procedure which violates none of those rules should not be forbidden unless it af *907 firmatively undermines core values of the adversary system. Because I am satisfied that the procedure employed in this cause did not, I respectfully dissent.
McCORMICK, P.J., joins.
. For useful information on the historical development and underlying theory of adversary procedure in Anglo-American jurisprudence, see Stephan Landsman, The Adversary System, A Description and Defense (1984). Also Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 Cornell L.Rev. 497 (1990); Gary Good-paster, On the Theory of American Adversary Criminal Trial, 78 J.Crim.L. & Criminology 118 (1987).
. It is widely accepted that the primary goal of adversary process is a fair resolution of disputes between litigants, not the discovery of objective historical fact. Much criticism of the system relies heavily upon this distinction and upon a modern preference for truth-finding as the main purpose in litigation. E.g., Thomas L. Steffen, Truth as Second Fiddle: Reevaluating the Place of Truth in the Adversarial Trial Ensemble, 1988 Utah L.Rev. 799 (1988); Marvin Frankel, Partisan Justice (1980). I am disinclined to enter this debate in the present context, however, both because this Court is bound by history, precedent, and legislation to accept the system as it is and because I believe that the adversary process, whatever its most salient feature, is indeed committed to the discovery of truth in a specific and unique way.
. See Gregory P. Joseph & Stephen A. Saltzburg, Evidence in America — The Federal Rules in the States §§ 48.1 — 48.4 (1987).
Federal Rule 614 provides, in its entirety:
"(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
"(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.
"(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.”
. Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App.1978); Munoz v. State, 485 S.W.2d 782, 784 (Tex.Crim.App.1972); Navarro v. State, 477 S.W.2d 291, 292 (Tex.Crim.App.1972); Stewart v. State, 438 S.W.2d 560, 561-562 (Tex.Crim.App.1969); Ash v. State, 420 S.W.2d 703, 705 (Tex.Crim.App.1967); Marshall v. State, 164 Tex.Crim.R. 167, 297 S.W.2d 135 (1957); Milo v. State, 152 Tex.Crim.R. 405, 214 S.W.2d 618, 619 (1948); Rodrigues v. State, 110 Tex.Crim. 267 , 8 S.W.2d 149, 150 (1928). Cf. Cleveland v. State, 588 S.W.2d 942, 945 (Tex.Crim.App.1979); Enriquez v. State, 429 S.W.2d 141, 144 (Tex.Crim.App.1968).
Several courts of appeals have done much the same thing. Ross v. State, 800 S.W.2d 262, 268 (Tex.App.—Houston [14th Dist.] 1990) PDR ref’d; Burks v. State, 693 S.W.2d 747, 750 (Tex.App. [14th Dist.] 1985) PDR ref'd; Silva v. State, 635 S.W.2d 775, 778 (Tex.App.—Corpus Christi 1982) PDR ref’d; Bautista v. State, 632 S.W.2d 846, 850-851 (Tex.App.—Houston [14th Dist.] 1982) PDR ref’d; Richardson v. State, 632 S.W.2d 700, 702-703 (Tex.App.—Fort Worth 1982); Voelkel v. State, 629 S.W.2d 243, 246 (Tex.App.—Fort Worth 1982), aff'd, 717 S.W.2d 314 . Cf. Betancourt v. State, 657 S.W.2d 451, 455-456 (Tex.App.—Corpus Christi 1983).
. The Court is wrong to suggest that I favor juror questioning "because judicial questioning of witnesses has been tolerated." At 886, n. 10. Indeed, I am inclined to be suspicious of both practices for reasons which must be abundantly clear to any impartial reader of this opinion. But judicial questioning is itself an antiadversar-ial practice, and its widespread acceptance therefore refutes the argument that everything antiadversarial must for that reason be condemned. Certainly, the cases I cite in this connection do not "represent wholesale and unquestioned approval of judicial questioning.” But neither can it fairly be said that I support the wholesale and unquestioned approval of juror questioning. My point is only that both judges and jurors are required by the adversary system to remain impartial and uncommitted, that the questioning of witnesses by either judge or jury threatens that impartiality, and that such questioning should therefore be permitted only in a limited and nonadversarial manner.
. What is now a general rule tolerating limited participation by trial judges in the examination of witnesses appears in earlier cases as a version of the ubiquitous harmless error doctrine. Thus, in Harrell v. State, 39 Tex.Crim.R. 204, 45 S.W. 581, 586-587 (1898), this Court condemned the practice at great length, concluding with the following observations:
We cannot commend the action of the judge in his attempt to interfere with the province of counsel for the state in the examination of witnesses, and, if it appeared to us that such interference on his part was calculated to prejudice the rights of the appellant, we would not hesitate to reverse this case. Such interference on the part of a judge can never be called for, and especially in this case, where both the state and the defendant were represented by able counsel, it was absolutely unwarranted.
*904 But, by lineal descent, these comments were somehow compressed into the following rule:
[W]hen the Court participates in the questioning of witnesses seeking information only, no error is committed.
Ash v. State, 420 S.W.2d 703, 705 (1967).
. E.g., Spitzer v. Harris & Co., 217 Conn. 532 , 587 A.2d 105, 111-114 (1991); State v. Johnson, 784 P.2d 1135, 1145 (Utah 1989); State v. Rodriguez, 107 N.M. 611 , 762 P.2d 898, 901-902 (Ct.App.1988); People v. McAlister, 167 Cal.App.3d 633, 644-646 , 213 Cal.Rptr. 271, 276-278 (1985); State v. LeMaster, 137 Ariz. 159 , 669 P.2d 592, 596-598 (Ct.App.1983); State v. Barrett, 278 S.C. 414 , 297 S.E.2d 794, 795-796 (1982); Story v. State, 157 Ga.App. 490 , 278 S.E.2d 97 (1981). Contra State v. Zima, 237 Neb. 952 , 468 N.W.2d 377 (1991). See generally Jonathan M. Purver, Propriety of Jurors Asking Questions in Open Court During Course of Trial, Anno., 31 A.L.R.3d 872 .
. See generally Robin C. Larner, Jurors Questioning Witnesses in Federal Court, Anno., 80 A.L.R.Fed. 892. United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.1979).
. E.g., United States v. Johnson, 914 F.2d 136 (8th Cir.1990); United States v. Nivica, 887 F.2d 1110, 1123 (1st Cir.1989); United States v. Land, 877 F.2d 17, 19 (8th Cir.1989); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512 , 515—517 (4th Cir.1985); United States v. Witt, 215 F.2d 580, 584 (2nd Cir.1954).
. It has been the supposition of its proponents that an organized approach to the interrogation of witnesses by jurors will facilitate resolution of factual disputes by clarifying the testimony, identifying issues requiring further development, and increasing juror attention to the evidence. Recent studies, however, have not supported this hypothesis. Neither, on the other hand, have they borne out fears of its opponents that the practice will lead jurors who question witnesses to abandon their neutrality prematurely. Toward More Active Juries: Taking Notes and Asking Questions (American Judicature Society 1991); Heur and Penrod, Increasing Jurors’ Participation in Trials: A Field Experiment with Jury Notetaking and Question Asking, 12 L. & Human Behavior 231 (1988). See also Allowing Jurors to Submit Questions to Witnesses, 73 Ill.B.J. 155 (Nov.1984). Future studies may reveal the relative advantages and disadvantages of this practice more clearly. Sar-geant, Juror Questions During Trial? The Verdict Isn’t In, 25 Trial 14 (Sept.1989).
. Morrison, 815 S.W.2d 766 ; Velasquez v. State, 815 S.W.2d 842 (Tex.App.—Corpus Christi 1991); Buchanan v. State, 807 S.W.2d 644 (Tex.App.—Houston [14th Dist.] 1991), PDR granted; Allen v. State, 807 S.W.2d 639 (Tex.App.—Houston [14th Dist.] 1991), PDR granted.
. See Gerber, Victory v. Truth: The Adversary System and Its Ethics, 19 Ariz. State L.J. 3 (1987); Stephan Landsman, The Decline of the Adversary System and the Changing Role of the Advocate in that System, 18 San Diego L.Rev. 251 (1981); Frankel, supra.
. Plainly the law of evidence, developed first by decisions of the courts and later by formal codification, is replete with rules of privilege and exclusion which effectively subjugate truth to ideals of fair play and public policy.
. See Sylvester, Comment, Your Honor, May I Ask a Question? The Inherent Dangers of Allowing Jurors to Question Witnesses, 7 Cooley L.Rev. 213 (1990); Wulser, Comment, Should Jurors Be Allowed to Ask Witnesses Questions in Criminal Trials?, 58 UMKC L.Rev. 445 (1990); McLaughlin, Note, Questions to Witnesses and Notetaking by the Jury as Aids in Understanding Complex Litigation, 18 New Eng.L.Rev. 687 (1982); Harms, Comment, The Questioning of Witnesses by Jurors, 27 Am.U.L.Rev. 127 (1977).
. The Court of Appeals in this case likened the practice of witness interrogation by jurors to a communication between jurors and attorneys, something which is ordinarily not permitted in our system and which jurors are admonished not to do in advance of trial. Of course, I do not consider the practice at issue here to be at all like ex parte conversations between jurors and lawyers outside the courtroom, which is the specific impropriety to which such admonishment is mainly addressed. Rather I interpret the lower court’s characterization of the present issue in this way as a recognition that our adversary system generally disapproves of advocates receiving assistance from decisionmakers in the presentation of their partisan positions. Confining juror questions to a formal courtroom environment tends to avoid the appearance of jurors actively helping the advocates.
. The only other question from a juror asked the court's psychiatric expert to define the phrase “limited impulse control.” His answer tended to suggest that Appellant was suffering a personality disorder which might have contributed to his losing control in circumstances such as those under which the murder was committed in this case. Neither party nor the Court of Appeals discussed this question and answer in treating the issue presented here.
. Appellant’s request that an issue of self-defense be submitted for jury consideration was denied by the trial judge. The court did, however, make Appellant’s conviction for murder con *906 ditional upon the jury’s finding that he did not act "under the immediate influence of sudden passion arising from an adequate cause.” V.T.C.A., Penal Code § 19.04. See Cobarrubio v. State, 675 S.W.2d 749 (Tex.Crim.App.1983).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771267. Public record. Not legal advice.