Sandefer & Murtha Law Blog

As of January 1, 2008, Florida law now allows jurors to submit questions for the Judge to ask witness during a trial.   The law applies to civil trials and allows the Judge in a criminal trial to use his or her discretion on whether to allow jurors to ask questions.   This opens the door to new issues and potential problems in a criminal trial.  What if a juror asks the obvious question of a criminal defendant, “have you ever done anything like this before?” or  “Why didn’t you talk to the police?”.  If the Judge tells the juror that the question will not be asked, that can leave a definite impression with the juror i.e. ‘he must have done it before’ or ‘there is some reason why they do not want us to know the answer’. 

Also, the burden of proof is on the prosecution.  If the prosecutor does not ask a critical question and something is left usanswered, a juror can fill in the information.  The burden is no longer on the state.  Matters of strategy such as which witness to ask a question to, or knowing that one witness does not know the answer to a question while another one does, can affect the way a trial proceeds and a lawyers credibility if the lawyer tries to bring out something through cross examination of one of the state’s witnesses only to have a juror ask an earlier witness a question which defeats the whole line of questioning, or at least puts the prosectution on notice as to what needs to be asked.

Note taking will also be allowed as of January 1, 2008 by jurors.  As with questioning, this will be discretionary in criminal trials.  Note taking in criminal trials is concerning since it may take the juror’s attention away from watching a witness on the stand as he testifies.  Thus, the juror could miss crucial facial expressions and motions which would help them in determining if a witness is telling the truth.  In a criminal trial where the accusing witness is the main witness this could be critical.

Of course, there may be benefits to note taking also.  If several jurors take notes and take them down differently, they may not be able to agree on what was said or what happened and it may open the door to arguing that the facts are not proven, that there is a reasonable doubt.

We will soon see what the new law will bring.  Last year the legislature took away the right of the defendant to have last closing argument.  The State always goes last now.   The battle for rights and justice continues

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This entry was posted on Friday, January 4th, 2008 at 6:13 am and is filed under General. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.