Criminally Yours: What If Jurors Asked The Questions?

While the jury definitely doesn't need to know everything about a case, why not consider giving them their own shot at fully understanding the evidence that has been presented?

I was on trial last week — a low-level drug possession case that carried a whopping six-year minimum sentence because of the defendant’s prior record, even though the amount of drugs seized weighed less three crushed aspirin.

There was little dispute about the facts. My client and the co-defendant were sleeping in an apartment when, early one morning, Parole Enforcement decided to storm the place to look for a third person who was a parole absconder. (This third person lived in the apartment.)

Unfortunately for my client, the couch on which he was sleeping was about 10 feet from a small plastic bag containing 26 twisties of crack cocaine. When the parole officers burst in, everyone but the 94-year-old grandmother in the back room got busted for possession.

See, there’s this room presumption. If you are in a room with drugs and the drugs are in open view, the presumption holds that they are yours, whether they actually are or not There’s also this snakey concept of “constructive possession.” Even if you have no drugs on your person (“actual” possession), you can be charged with and convicted for drug possession if they are close enough to be within your “dominion and control” — interpreted by courts to mean anyone who’s in the apartment and has the “ability to use or dispose of the property.” The language is so open-ended, a jury could have convicted the 94-year-old grandma had the prosecutor decided to charge her. (Luckily for her, she was bedridden, and I don’t think police wanted to go through the trouble.)

Faced with such technicalities, the defense had to be surgically clean. How do you persuade jurors (when your client doesn’t take the stand) that someone doesn’t have possession of drugs when it’s presumed by the law that they do?

The room presumption is really supposed to only apply to drug factories, where it’s so clear by secondary evidence found in the apartment such as scales, heat sealers, empty baggies, dilutants, and the like, that the only reason anyone in that apartment would be there would be to cook and bag up drugs.

This evidence of a drug factory did not exist in my case, but the judge, in his wisdom, still decided to charge it. (Might he be overturned on appeal if my client is convicted? Sure. But my client would rather not spend the next two years of his life in prison waiting for a reversal.)

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In addition to the unjustified charge, the judge suggested something novel, at least for me, although it’s probably done in other states. He suggested that the jurors be permitted to ask the witnesses questions during the trial. Did I hear him right? How could this possibly be useful for defense?

He explained that after direct and cross examinations, the jurors would be asked if they had any questions. If so, they would then raise their hands, write down their questions on a piece of paper, and submit it to the court. We (judge, defense counsel, and prosecutor) would then consider each question at side bar and determine whether it was appropriate and within the rules of evidence to be asked.

No lawyer likes losing control of a case and Rule One in the cross-examination playbook is never ask a question if you don’t already know the answer. Rule Two: the infamous, one-question-too many.

Remember this scenario:

“So you didn’t see my client bite his nose off.”

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“No.” [This is when the lawyer should have sat down.]

“Then how can you be sure he did it?”

“Because I saw him spit it out.”

I couldn’t see how this free-wheeling, let-the-jurors-know-whatever-they-want approach could ever help a case, but the judge overruled my objection and permitted the juror’s questions.

Here’s what happened.

The witnesses were heavily examined on direct and cross by counsel, then the jurors were asked about any of their own questions. Two jurors raised their hands. Both wrote the same question, involving the amount of grains in a twistie of crack. The question really meant nothing to the proof of the case since the cumulative weight of the drugs was already in evidence, but we agreed the question could be asked and answered.

There was one other question during the course of the trial but it was so insignificant, I can’t even remember what it was. Maybe we had a dull crowd (generally not a good sign). Maybe nobody was really interested, or maybe we had done such a great job with our own examinations, we left no question unanswered. (I doubted this.)

After brief deliberation and the bad charge (the room presumption) by the judge, the defendants were convicted. So, what conclusions did I draw from the exercise? I don’t think juror questioning ruined the case — the judge’s charge did. I gained a bit of insight by seeing which juror was thinking what, and who was engaged and alert. It may have even prompted the jurors to be more attentive during questioning since they were going to get their chance, too.

Would I do it again? I’d think about it.

While the jury definitely doesn’t need to know everything about a case (like a client’s full criminal history should he take the stand), why not consider giving them their own shot at fully understanding the evidence that has been presented? Through their questions (just like notes during deliberations), you might get an early read on how they’re interpreting the evidence which, in both criminal and civil trials, also helps you figure out when to hold ’em and when to fold ’em before the verdict is in.

What do you think?


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.