BY HON. WESLEY C. TAILOR AND HON. ROBERT C.I. MCBURNEY
STATE COURT OF FULTON COUNTY; SUPERIOR COURT OF FULTON COUNTY
But what if the truth-seeker does not understand what was said? How is the judge (or the advocate) to know? Or what if the lawyers willfully or accidentally fail to cover a relevant issue, such as the lighting at the scene of the crime/incident? Can the truth-seeker find out more about the facts of the case being presented? The answer is yes (again, with an assist from the judge).
Georgia courts have long held that “jurors are not permitted during trial to interrogate witnesses” (Hall v. State, 241 Ga. 252, 256, 1978). However, nearly 30 years ago, the Georgia Supreme Court ruled that trial courts may allow jurors to question witnesses indirectly, i.e., via a process mediated by the judge (Matchett v. State, 257 Ga. 785, 786-787, 1988). (“The trial court properly instructed the jury as to the appropriate form of asking questions” – the trial court instructed the jury to “submit any questions they might wish to have answered to the trial court in writing at the conclusion of the witness’ testimony.”)
The Supreme Court recently affirmed and refined this procedure of empowering jurors to seek the truth through asking questions of witnesses in Hernandez v. State, 299 Ga. 796 (2016), a murder prosecution in which the trial judge permitted written inquiries from jurors.
We both embrace and employ this procedure and have found it to improve the level of juror participation and to reduce the Google-inspired temptation to conduct impermissible outside research. Here is how it works:
Prior to opening statements, as part of our preliminary instructions, we explain to the jury how witness testimony will take place. We then instruct them essentially as follows:
The party or attorney calling the witness to testify will ask questions of that witness. Once that attorney/party is done, the opposing attorney/party will ask any questions they may have of that witness. Then, I will ask you whether you have any questions of that witness. If you do, you must write your questions down. (The jurors are given notepads and pencils at the start of trial. Some judges also provide separate notecards for the questions.) Once you have written your questions, you will hand them to the deputy. The lawyers/parties and I will then review the questions to see if there are any objections – just as lawyers can ask objectionable questions, you might, too. I will then ask the witness all the proper questions. After that, the parties/attorneys will have an opportunity to follow up. If I do not ask one of your questions, it simply means that the question cannot be asked of that particular witness. It does not mean that it is a bad question; it just is a question that will not be asked of that witness. And, of course, questions are not evidence; only answers are.
The effect this process has had on juror engagement has been profound. Jurors listen more attentively and remain much more alert throughout witness testimony. The questions typically are on point (we have yet to have a juror ask a witness his/her zodiac sign) and often prompt the attorneys to clarify issues they otherwise may not have realized needed clarification. More tellingly, when we chat with the jurors after the trial and mention that juror questions are relatively (and regrettably) uncommon in Georgia, they express dismay that, in a future trial, they might be relegated to such a passive role.
We have heard some lawyers complain that now the jury is doing the job of the lawyer. In allowing jurors to ask questions, we have never observed jurors doing anything other than what they are tasked to do - find the facts of the case from the evidence and return a verdict that speaks the truth.
If this concept intrigues (or troubles) you, the following resources provide further information:
• Can Jurors Ask Questions During Trials? A Growing Trend in US Courtrooms, by Charles Montaldo (www.thoughtco.com/jurors-asking-questions-during-trials-970838)
• Of Course Jurors Should Ask Questions, by Judge John R. Stegner, (http://apps.americanbar.org/litigation/litigationnews/articles-print/073013-jurors-ask-questions-summer13.html)
There are many other articles and cases discussing this topic. We encourage you to consider joining this trend, so that your jurors will have the information they need to make the best, most-informed decisions they can. ●
ABOUT THE AUTHORS
Judge Wesley B. “Wes” Tailor is one of ten judges serving on the Fulton County State Court. Judge Tailor earned his law degree from the University of Kentucky and undergraduate degree from the University of Richmond. Before going on the bench Judge Tailor practiced at the Georgia Secretary of State’s office. Judge Tailor is an Atlanta native, who was born and raised in Fulton County in what is now the City of Sandy Springs.
Judge Robert C. I. McBurney serves on the Superior Court of Fulton County. He earned his undergraduate and law degrees from Harvard University. He was appointed to the bench in 2012. Prior to serving on this court, Judge McBurney was an assistant United States Attorney for the Northern District of Georgia. Judge McBurney is a Master of the Bleckley Inn of Court and the Lamar Inn of Court.