The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
In Re: Jury Innovations
SC05-1091
>> ALL RISE PLEASE.
HEAR YE, HEAR YE, HEAR YE, THE
SUPREME COURT OF FLORIDA IS NOW
IF SESSION.
ALL WHO HAVE BUSINESS BEFORE
THIS COURT, DRAW NEAR, GIVE
ATTENTION AND YOU SHALL BE
HEARD.
GOD SAVE THE UNITED STATES, THE
GREAT STATE OF FLORIDA AND THIS
HONORABLE COURT.,,
>> GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.,,
>> GOOD MORNING FRIENDS AND
WELCOME TO THE CALENDAR FOR
WEDNESDAY, FEBRUARY 14.
TO GATHER A LITTLE MORE
STRUCTURE FOR THE PRESENTATIONS
THIS MORNING, THE COURT WILL
REMAIN SILENT, NOT ASK
QUESTIONS, WHILE YOU MAKE YOUR
PRESENTATIONS TO GIVE YOU THE
OPPORTUNITY, MANY OF YOU HAVE
TRAVELED A LONG WAY, SO THAT YOU
CAN BE SURE YOU HAVE THE
OPPORTUNITY TO SAY WHAT YOU WANT
TO SAY.
AT THE END, THE COURT WILL THEN
ASK QUESTIONS AS MAY BE
APPROPRIATE OR AS THEY DESIRE,
BUT WE WANT TO BE SURE THAT YOU
HAVE THE OPPORTUNITY TO TELL US
EXACTLY WHAT IT IS WE WANT TO
TALK ABOUT.
SO WITH THOSE GROUND RULES,
PLEASE UNDERSTAND THAT JUST
BECAUSE YOU DON'T GET A QUESTION
DURING YOUR TURN AT THE
MICROPHONE DOESN'T MEAN THERE'S
DISINTEREST OR LACK OF CONCERN,
BUT YOU WILL GET THAT IN A FEW
MOMENTS.
SO IF WE COULD GO AHEAD AND
PROCEED WITH AMENDMENTS TO THE
FLORIDA RULES OF CIVIL
PROCEDURE, THE JURY INNOVATIONS
COMMITTEE RECOMMENDATIONS,
MR. PARK, WOULD YOU LIKE TO
START PLEASE, SIR.
>> MAY IT PLEASE THE COURT, MY
NAME IS KEITH PARK, I'M CURRENT
CHAIR OF THE CIVIL PROCEDURES
RULES COMMITTEE, AND I'D LIKE TO
THANK THE COURT FOR ALLOWING ME
TO SPEAK ON BEHALF OF THE
COMMITTEE THIS MORNING.
THIS FIRST SESSION, WE'RE JUST
TALKING ABOUT THREE AREAS, THE
FIRST ONE IS THE QUESTIONS TO
JURORS, WHICH IS UNDER RULE
1.984, WHICH SEEMS TO BE A
LITTLE BIT CONTROVERSIAL,
ALTHOUGH THE COMMITTEE DID SOLVE
IT AS THEIR MARCHING ORDERS IS
WHAT THE COMMISSION CAME UP
WITH, THAT IS WE'RE TRYING TO
GET ENOUGH INFORMATION OUT THERE
TO GET TO THE MEAT OF THE MATTER
IF YOU WILL AND TRY AND CUT DOWN
ON THE BOARD IRE AND TRY AND
GIVE A LITTLE INFORMATION SO
THAT WE CAN BEGIN THE PROCESS A
LITTLE BETTER AND A LITTLE MORE
ECONOMICALLY.
IT WAS THOUGHT MORE OF A
JUDICIAL ECONOMY, JUDICIAL
EFFICIENCY SORT OF RULE AND
QUESTIONNAIRE AND THAT'S HOW IT
WAS APPROACHED.
THE OTHER TWO MATTERS ARE FAIRLY
STRAIGHTFORWARD.
QUESTIONS BY JURORS, WHICH IS
1.452, WHICH PRETTY MUCH
FOLLOWED THE STATUTE THAT HAD
BEEN OUT THERE, AND I -- THAT
WAS FAIRLY NON-CONTROVERSIAL AS
WELL.
THE JUROR NOTEBOOKS, THIS SEEMS
TO HAVE BEEN A PRACTICE THAT'S
BEEN GOING ON FOR SOME PERIOD OF
TIME WITH REGARD TO THE MORE
COMPLEX AND COMPLICATED
LITIGATION, SO THAT DIDN'T SERVE
AS MUCH OF A BAR EITHER WITH
REGARD TO TRYING TO GET THAT
TYPE OF RULE PASSED BY THE
COMMITTEE.
MOST OF THESE THINGS, I THINK
HALL OF THESE WERE THE QUESTIONS
BY JURORS, I THINK THE VOTE ON
THAT WAS 45-5, THE OTHERS WERE
35-0, AND 34-0 ON THE JUROR
NOTEBOOKS.
SO MOST OF THESE THINGS PASSED
WITHOUT MUCH IN THE WAY,
ALTHOUGH THERE WAS A GOOD DEAL
OF DISCUSSION AND I THINK FAIRLY
WELL DONE FROM THE STANDPOINT OF
WHAT THE SUBCOMMITTEES AND
COMMITTEES DID.
IF THE COURT HAS ANY QUESTIONS,
I WOULD BE HAPPY TO ENTERTAIN
WHAT THOSE MIGHT BE.
>> WE'RE GOING TO DO THOSE AT
THE END.
JUDGE BATEMAN.
>> MAY IT PLEASE THE COURT,
JUDGE TOM BATEMAN, SECOND
JUDICIAL CIRCUIT.
I'M HERE ON BEHALF OF THE
CRIMINAL PROCEDURES RULES
COMMITTEE.
THE CHAIR OF THE -- CURRENT
CHAIR OF THE COMMITTEE ALSO.
THE MAIN POINTS WE WANTED TO
TALK ABOUT WAS THE JUROR
QUESTIONS.
THAT WAS ONE OF THE MAJOR ISSUES
THAT WAS ADDRESSED BY THE
COMMITTEE.
NOW YOU HAVE TO REMEMBER, THIS
WAS A FEW YEARS AGO NOW, AND THE
COMMITTEE AT THAT TIME
RECOMMENDED THAT NO RULE BE
SUGGESTED.
WHEN THE REPORT FINALLY CAME
OUT, THE OUT OF CYCLE REPORT, I
WAS THE CHAIR OF THE COMMITTEE,
OF THE CURRENT RULES COMMITTEE
AT THAT TIME AND HAD MET WITH
THE LIAISON JUSTICE AND THE
CHIEF JUSTICE AND WE STARTED
TALKING ABOUT THE RULES
COMMITTEES PROVIDING MINORITY
REPORT AS WELL.
AND SO MINORITY REPORT WAS ALSO
SUBMITTED.
ANY RULES RECOMMENDED IN THAT
REPORT.
THE RULE THAT'S BEEN RECOMMENDED
BY THE MINORITY IS CONSISTENT
WITH CASE LAUGH.
BOTH IN THE STATE OF FLORIDA,
WHICH IS SOMEWHERE AROUND 50
YEARS IN AGE, ALLOWING THE
REQUEST, BUT WE HAVEN'T HAD ANY
PROCEDURES IN PLACE TO KIND OF
CODIFY HOW IT SHOULD BE DONE.
JUDGE MINOR IN A CASE SUGGESTED
THE RULES COMMITTEE LOOK AT IT.
THE CASE OUT OF THE FIFTH
AFFIRMED BUT SUGGESTED THAT IT
SHOULD BE -- THE QUESTIONS
SHOULD BE DISCOURAGED, BUT NO
CASE HAS EVER BEEN REVERSED
BECAUSE OF A JUROR QUESTION, AND
MOST OF THE JUDGES THAT ARE
ALEADING AND SUGGESTIVE IT --
THAT ARE ALLOWING IT THESE DAYS,
DO A GOOD JOB OF SCREENING THE
QUESTIONS, ALLOWING THE
ATTORNEYS TO OBJECT AND THEN
ALLOWING THE ATTORNEYS TO FOLLOW
UP AND INSTRUCTING THE JURORS
THAT THE RULES OF EVIDENCE AND
RULES OF PROCEDURE APPLY TO THEM
AS WELL, AND IF THE QUESTIONS
AREN'T ASKED, THEY SHOULDN'T
HOLD IT AGAINST ANYONE, SO THERE
IS A RULE, THE COMMITTEE'S
OFFICIAL POSITION, BY THE
MAJORITY WAS NOT TO -- NOT TO
HAVE NO RULE AT ALL.
THAT 0 WOULD JUST LEAVE THE CASE
LAW OUT THERE.
AND I GUESS THEN YOU WOULD HAVE
TO MAKE A DECISION AS TO WHETHER
YOU WOULD WANT TO OVERTURN ALL
OF THAT POLICY.
IF YOU'RE NOT GOING TO ALLOW A
QUESTION.
AND THEN THE MINORITY
RECOMMENDED WHAT'S IN THE
PACKET.
THE OTHER ISSUES THAT ARE REALLY
FOR THE -- THAT I WANT TO TALK
ABOUT, THE JUROR NOTEBOOKS, THEY
RECOMMENDED NO RULE ON THAT.
THE MAJORITY RECOMMENDED NO
RULE.
THE WRITTEN INSTRUCTIONS, WE DID
SUBMIT A PROPOSED RULE ON THAT
MATTER, AT LEAST ONE SET OF
INSTRUCTIONS IN A PRINTED FORMAT
SHOULD GO BACK WITH THE JURY.
MOST OF US, MOST OF THE JUDGES
THAT ARE DOING -- USING WRITTEN
AND PRINTED JURY INSTRUCTIONS
ARE ACTUALLY GIVING A COPY TO
EVERY JUROR.
I HAD BREAKFAST WITH JUDGE EATON
THIS MORNING AND WE WERE TALKING
ABOUT, VERY SIMILAR, WE GIVE
THESE PRELIMINARY INSTRUCTIONS
IN THE CRIMINAL CASES TO THE
JURORS AS WELL SO THEY CAN READ
ALONG AND FOLLOW ALONG BECAUSE
WE KNOW ADULTS LEARN IN
DIFFERENT WAYS AN ONE OF THOSE
WAYS IS NOT ONLY BY HEARING THE
WORDS BUT SEEING THE WORDS ON A
PAGE.
SO WE HAVE RECOMMENDED A RULE --
RIGHT NOW THE RULE SAYS ONLY IN
CAPITAL CASES, THE SET OF JURY
INSTRUCTIONS HAS TO GO BACK TO
THE JURY, BUT WE'VE RECOMMENDED
THAT AT LEAST ONE SET OF
INSTRUCTIONS GO BACK IN
EVERYTHING.
THE OTHER ISSUE IS THE ABILITY
OF THE JUDGE, THE DISCRETION OF
THE JUDGE TO PROVIDE FOR THE
JUDGE TO READ THE FINAL
INSTRUCTION BEFORE CLOSING
ARGUMENT.
THIS IS AN INNOVATION -- I WAS
ON THE JURIES INNOVATION
COMMITTEE AS WELL AND THIS WAS
TALKED ABOUT NATIONALLY, WE
TALKED ABOUT OTHER STATES AND
OTHER COURTS AND OTHER JURY
INNOVATION COMMITTEE MEMBERS
FROM OTHER STATES.
AND THIS IS -- AND YOU MAY
RECALL, AND I DON'T KNOW IF
YOU'LL REMEMBER, BUT JUDGE CHE
VON WAS HERE TO DO THE
PRESENTATION AND I SAT AT
COUNSEL TABLE WITH HIM, THE
JURORS AT THE TIME -- SPEAK
ABOUT THIS VERY ISSUE AND SPEAK
TO YOU AND SAID UNTIL YOU'VE
DONE THIS, YOU DON'T REALIZE
THIS, IT REALLY IS GOOD, BECAUSE
THE JUDGE IS GIVING THE
INSTRUCTIONS TO THE JURY AND IT
GIVES THE LAWYERS SOME CONTEXT
NOW FOR THEIR FINAL ARGUMENT AND
THEY HAVE THE INSTRUCTIONS RIGHT
THERE.
SO THE COMMITTEE RECOMMENDED
THAT CONSISTENT WITH THE I THINK
THE CRIMINAL COURTS STEERING
COMMITTEE RECOMMENDED A RULE AND
THE COMMITTEE IS -- HAS SAID NO
RULE, BUT IT WAS A VERY CLOSE
ONE AND AGAIN A MINORITY REPORT
WAS WRITTEN, AND A RULE WAS
SUGGESTED, CONSISTENT WITH THE
FACT THAT THE JUDGE SHOULD HAVE
SOME DISCRETION IN THAT AREA, SO
UNLESS THERE'S OTHER QUESTIONS
AT THIS POINT, I'LL SIT DOWN.
>> THANK YOU.
GOOD MORNING.
>> I WAS THE CHAIR OF THE
STANDARD JURY INSTRUCTIONS I'M
HERE ON BEHALF OF THE STANDARD
JURY INSTRUCTIONS CIVIL AND I'LL
BE VERY BRIEF IN THIS FIRST
PART, BECAUSE WE'RE TALKING
ABOUT QUESTIONS BY JURORS AND
NOTE TAKING, WHICH ARE I THINK A
BIT LESS CONTROVERSIAL IN THE
CIVIL AREA AND HAVE BEEN DONE
FOR A LONG TIME.
THE QUESTIONS BY JURORS, AS LONG
AS IT'S DONE IN A CONTROLLED
FASHION, AND IT'S A JUDICIAL
TRAINING ISSUE, WHICH WE TAKE
UP, IT'S TAUGHT IN THE TRIAL
PRACTICES COURT, WE HAVE
ADDITIONAL COURSES ON HOW CAN
YOU GET QUESTIONS FROM JURORS
AND SCREEN THEM WITHOUT THE
OTHER JURORS KNOWING WHAT THE
QUESTION IS, AND AS LONG AS WE
DO IT PROPERLY, THERE ARE
SAFEGUARDS IF PLACE, AND I THINK
EVERYBODY IS IN FAVOR OF IT.
LAWYERS DO WANT TO KNOW WHAT
JURORS ARE THINKING DURING THE
COURSE OF THE TRIAL AND IT HELPS
THEM WITH THAT.
IT ALSO GIVES THE JURORS AN
INVESTMENT IN THE PROCESS AND
THEY'RE GOING TO BE TALKING
ABOUT THIS STUFF BACK IN THE
JURY ROOM ANYWAY, SO YOU MIGHT
AS WELL GET THEM TO ASK THE
QUESTIONS IN THE COURSE OF THE
CASE AND SCREEN OUT THE ONES AND
EVEN EDUCATE WITH THE PROCESS,
AS LONG AS YOU DO IT WITHOUT
AD-LIBBING, AND WE TEACH JUDGES
TO DO THAT.
WE HAVE COURSES THAT ADDRESS
THESE VERY THINGS TO MAKE SURE
WE HAVE SAFE GAWRPDZ.
SO -- SAFEGUARDS.
SO QUESTIONS, IT WAS DONE WHEN I
WAS A LAWYER, I'VE DONE IT FOR
MY FIVE YEARS AS A JUDGE, I WAS
TAUGHT TO DO IT IN JUDICIAL
COLLEGE, SO WE DO ALLOW JUROR
QUESTIONS.
NOT TAKING BY JURORS FOR LONGER
TRIALS, ACCORDING TO THE
STATUTE, IS MANDATORY AND FOR
SHORTER TRIALS, IT'S NOT, AND
DIFFERENT JUDGES DO DIFFERENT
THINGS.
MY PERSONAL THING IS, IF NEITHER
LAWYER WANTS IT AND IT'S A SHORT
TRIAL, WE DON'T ALLOW THE JURORS
TO TAKE NOTES UNLESS THEY ASK TO
TAKE NOTES.
IF THEY ASK TO TAKE NOTES, WE
LET THEM DO IT.
THAT'S MY COURTROOM AND THERE'S
A WHOLE GAMUT ON THE WAY THIS IS
DONE.
I THINK THE QUESTION FOR YOU AND
THE RECOMMENDATION FROM THE
INNOVATIONS COMMITTEE IS WHETHER
YOU'RE GOING TO ALLOW NOTE
TAKING IN ALL CASES OR HAVE IT
DONE IN ALL CASES, RATHER THAN
JUST HAVING THE LONGER CASES,
AND I THINK YOU'LL GET DIFFERENT
PREFERENCES ON PEOPLE, BUT IT'S
HARD TO IMAGINE WHAT THE
DOWNSIDE IS OF LETTING JURORS
TAKE NOTES, WHEN THE JUDGES TAKE
NOTES AND THE LAWYERS TAKE
NOTES, AND THE JURORS ARE NOT
ALLOWED TO TAKE NOTES, EVEN IF
IT'S A ONE OR TWO DAY TRIAL, AND
THE COMMITTEE SUPPORTS ALLOW
NOTE TAKING AND IT WILL BE UP TO
YOU TO TELL US WHETHER IT'S
GOING TO BE.
RIGHT NOW WE HAVE TWO STANDARD
INSTRUCTIONS ALREADY IN PLACE.
ONE OF THEM NOTE TAKING
PERMITTED AND ONE NOTE TAKING
NOT PERMITTED, WHICH SORT OF
EXPLAINS TO THEM WHY YOU DON'T
HAVE THE NOTE TAKING, BUT AGAIN,
IT'S A MATTER OF JUDICIAL
EDUCATION AND IT'S SOMETHING --
IT'S NOT CONTROVERSIAL BECAUSE
IT'S BEEN DONE FOR A WHILE.
>> THANK YOU.
>> OK.
MR. CERVONE.
>> BILL CERVONE FOR THE CRIMINAL
INSTRUCTIONS COMMITTEE.
WHAT I WOULD LIKE TO MENTION
BRIEFLY IS THE MOST
CONTROVERSIAL PROPOSAL CAME
BEFORE OUR COMMITTEE, WHICH WAS
THE SUBJECT OF JURY QUESTIONS.
THE COMMITTEE DEBATED THAT
EXTENSIVELY, BUT THE VOTE WAS
BACK AND FORTH AND VERY CLOSE
AND ULTIMATELY THE COMMITTEE
ELECTED NOT TO ENDORSE THAT.
THE PRIMARY CONCERNS IMD
SUMMARIZE AS BEING TWOFOLD.
FIRST, A REAL FEAR THAT IN THE
CRIMINAL CONTEXT AT LEAST THIS
WOULD ENCOURAGE JURORS TO BE
DISTRACTED AND TO START FOE
DUSTING -- FOCUSING AT LEAST IN
THEIR OWN MINDS IF NOT
COLLECTIVELY WHEN THEY'RE OUT OF
OUR CONTROL ON DELIBERATIVE
PROCESSES THAT SHOULD NOT BE
HAPPENING YET.
SECONDLY AND EQUALLY PROBLEMATIC
TO THE COMMITTEE WAS THE CONCEPT
THAT A JURY QUESTION COULD SERVE
THE PURPOSE OF CURING A DEFECT
IN THE STATE'S PRESENTATION.
I CAN TELL YOU FOR EXAMPLE FROM
EXPERIENCE AS A VERY YOUNG
PROSECUTOR IN A COUNTY COURT
CASE, I FAILED TO ASK THE VENUE
QUESTION AND OBVIOUSLY A GOA AS
A!!!!!!!!!!ULTED.
HAD A JUROR COME FORWARD WITH
THAT QUESTION, THE RESULT WOULD
HAVE BEEN VERY DIFFERENT.
THE RESULT WAS ALSO AN ANCILLARY
RESULT IN THAT REGARD ABOUT THE
FACT THAT JURY QUESTIONS COULD
INTERFERE WITH THE TRIAL
STRATEGY FOR COUNSEL FOR EITHER
THE STATE OR THE DEFENDANT HAD
CHOSEN TO MAKE IN TERMS OF WHAT
THEIR PRESENTATIONS WERE.
ALTHOUGH THAT WAS NOT AS SERIOUS
A CONCERN TO US AS THE FACT OR
THE POSSIBILITY OF A DEFECT IN
THE STATE'S PRESENTATION BEING
INADVERTENTLY CURED TO THE
DETRIMENT OF THE DEFENDANT BY A
JUROR INVOLVEMENT.
AS TO NOTE TAKING, IMD!!!!!!!! I WOULD LIKE
TO BRIEFLY COMMENT THAT OUR
THOUGHT IS THAT MOST CRIMINAL
TRIALS ARE VERY BRIEF AND NOT
VERY COMPLEX AND THAT FOR THAT
REASON, WE WOULD PREFER OR
SUGGEST THAT IT BE A PER MISSIVE
POLICY WITH THE JUDGE WHEN THE
MATTERS COULD BE PRESENTED, OR
ARE AS COMPLEX ENOUGH THAT THE
VALUE OF JURORS TAKING NOTES
OUTWEIGHS THE POSSIBILITY OF
DISTRACTION, SO FORTH AND SO ON.
THANK YOU VERY MUCH.
>> THANK YOU.
I GUESS -- MS. GIDINGS, WERE YOU
GOING TO SPEAK THIS MORNING?
NO.
OM.
-- OK.
[INAUDIBLE]
OK.
MR. UFFERMAN.
>> MAY IT PLEASE THE COURT,
MICHAEL UFFERMAN.
I'M HERE THIS MORNING WITH PAULA
SAUNDERS ON BEHALF OF THE
FLORIDA ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS.
IMD LIKE TO ADDRESS THE COURT
REGARDING RECOMMENDATION 16,
WHETHER OR NOT JUROR QUESTIONS
SHOULD BE PERMITTED IN CRIMINAL
CASES.
WE'RE STRONGLY OPPOSED TO THIS
RECOMMENDATION.
THE PROBLEMS WITH JUROR
QUESTIONS IN CRM THAT WILL CASES
WERE BEST DESCRIBED BY THE
MINNESOTA SUPREME COURT IN THE
COSTELLO OPINION.
THE MINNESOTA SUPREME COURT
EXPLAINED THAT JUROR QUESTIONS
CAN IMPACT JUROR IMPARTIALITY
AND RELIEVE THE PROSECUTION OF
ITS BURDEN OF PROOF.
REGARDING JUROR IMPARTIALITY,
THE MINNESOTA SUPREME COURT
EXPLAINED THAT IN ORDER TO ASK A
QUESTION, A JUROR MUST RESPOND
TO A PERCEIVED LAW IN THE
PRESENTATION OF EVIDENCE.
AND IN ORDER TO RESPOND TO THAT
PERCEIVE LAW OR FORM OF
HYPOTHESIS, FORM OF QUESTIONS,
THE JUROR IS REQUIRED TO
CONSIDER THE CASE, FORM A
CONCLUSION ABOUT THE EVIDENCE IN
THE CASE PRIOR TO THE CONCLUSION
OF ALL THE SYSTEM AND EVIDENCE
BEING PRESENTED.
THIS IS COMPLETELY CONTRARY TO
INSTRUCTION 2.1, THAT INSTRUCTS
JURORS THAT THEY SHOULD NOT FORM
ANY OPINION UNTIL THE CONCLUSION
OF THE CASE.
BUT PERHAPS MORE IMPORTANTLY,
THE SECOND CONCERN THAT THE
MINNESOTA SUPREME COURT WAS
FOCUSED ON WAS WHETHER OR NOT
JUROR QUESTIONS CAN RELIEVE THE
PROSECUTION OF ITS BURDEN OF
PROOF.
I'D OFFER THE COURT THE
FOLLOWING EXAMPLE.
SUPPOSE A DEFENDANT IS CHARGED
WITH POSSESSION OF CHILD
PORNOGRAPHY.
THE PICTURES ARE COIN TANNED ON
A DISC.
-- ARE CONTAINED ON A DISC, A
ZIP DISC.
THE ZIP DISC, ZIP DRIVE AND
LAPTOP ARE ALL FOUND BY LAW
ENFORCEMENT OFFICIALS.
THERE'S NO QUESTION THAT THE
LAPTOP BELONGS TO THE DEFENDANT,
BUT THERE'S NOTHING ON THE ZIP
DISC ITSELF THAT WOULD LINK THE
DEFENDANT TO THE DISC.
THE STATE DURING THE TRIAL MAY
CALL A COMPUTER EXPERT AND THE
COMPUTER EXPERT IS NOT SURE
WHETHER OR NOT THE PICTURES HAD
EVER BEEN VIEWED ON THAT
PARTICULAR LAPTOP.
THE STATE NEVERTHELESS ARGUES
THAT THE DEFENDANT IS GUILTY
BECAUSE THE LAPTOP WAS FOUND IN
PROXIMITY TO THE DISC.
AT THE CONCLUSION OF THE
COMPUTER EXPERT'S TESTIMONY, THE
JUROR FOR THE FIRST TIME ASKED
THE QUESTION, IS THERE ANY
SOFTWARE OR IS THERE ANY ZIP
DISC DRIVER ON THE LAPTOP, THAT
WOULD ALLOW THAT ZIP DISC DRIVE
TO BE USED WITH THE LAPTOP?
THE JUROR OBVIOUSLY KNOWS A
LITTLE BIT ABOUT COMPUTERS,
PERHAPS MORE THAN THE PROSECUTOR
KNOWS, BECAUSE THE PROSECUTOR
DIDN'T ASK THIS QUESTION.
THE JUDGE ALLOWS THAT PARTICULAR
QUESTION TO BE ASKED TO THE
COMPUTER EXPERT AND THE COMPUTER
EXPERT LOOKS AT THE LAPTOP AND
SAYS, YES, IN FACT THERE IS
SOFTWARE, THERE IS A ZIP DISC
DRIVE ON THIS LAPTOP THAT WOULD
ALLOW THIS ZIP DISC DRIVER TO BE
USED WITH THE LAPTOP.
IN THAT SITUATION, IT'S ITS
JUROR'S QUESTION, NO,!!!!!!!! NOT THE
PROSECUTOR'S QUESTION THAT WOULD
MEET THE STATE'S BURDEN OF
PROOF.
IN A CRIMINAL CASE, IT IS THE
STATE AND THE STATE ALONE THAT
HAS THE BURDEN OF PROOF.
IT WOULD BE A VIOLATION OF THE
CRIMINAL DEFENDANT'S DUE PROCESS
RIGHTS FOR A JURORS' QUESTION TO
RELIEVE THE PROSECUTION OF THAT
BURDEN OF PROOF.
BUT I WOULD ALSO SUGGEST THAT A
JUROR'S QUESTION CAN IMPLICITLY
RELIEVE THE PROSECUTION OF ITS
BURDEN OF PROOF.
SUPPOSE A SITUATION WHERE A
JUROR DOES NOT REALLY ASK A
QUESTION, BUT INSTEAD WRITES
DOWN A COMMENT, TO THE EFFECT,
DI NOT UNDERSTAND THAT LAST
WITNESS'S TESTIMONY, I COULDN'T
TELL WHETHER THE VICTIM OR THE
DEFENDANT WAS THE AGGRESSOR IN
THE FIGHT.
IN THIS SITUATION, WITH THIS
TYPE OF COMMENT, THE PROSECUTOR
IS GIVEN A WINDOW INTO THE MIND
OF THE JUROR.
AND THE PROSECUTOR IS ABLE TO
SEE ANY WEAKNESSS THAT MIGHT BE
IN THE -- MIGHT EXIST IN THE
STATE'S CASE AND THE PROSECUTOR
IS AFFORDED AN OPPORTUNITY TO
CORRECT THOSE WITNESSES PRIOR TO
THE CONCLUSION OF THE CASE.
BASED ON THESE KIRNS, THE
SUPREME COURT OF MINNESOTA IN
THE COSTELLO FOUND THAT THE
QUESTIONS SHOULD NOT BE ALLOWED
IN CRIMINAL CASES AND WELTD ASK
THIS COURT TO ADOPT THE
REASONING OF THE MINNESOTA
SUPREME COURT.
I WOULD ALSO MAKE POINTS, BOTH
THE CRIMINAL PROCEDURES RULE AND
THE STANDARD COMMITTEE CIVIL
INSTRUCTIONS CASES HAVE REJECTED
RULE 16.
THEY HAVE DEFENSE ATTORNEYS AND
PROSECUTORS, BOTH SIDES OF THE
AISLE IN THIS SITUATION, HAVE
CONSIDERED THE PROPOSAL AND HAVE
REJECTED IT.
THEY WOULD NOT WANT JUROR
QUESTIONS IF CRIMINAL KISS
CASES.
SECOND, ALTHOUGH THE LEGISLATOR
HAS PASSED A STATUTE ALLOWING
JUROR QUESTIONS IN CIVIL CASES,
THE LEGISLATURE HAS NOT PASSED A
STATUTE THAT WOULD ALLOW JUROR
QUESTIONS IN CRIMINAL CASES.
THIRD, I AGREE WITH THE PREVIOUS
COMMENTS THAT JUROR QUESTIONS
CAN BE A DISTRACTION IN A
CRIMINAL CASE.
INSTEAD OF LISTENING TO THE
EVIDENCE, A JUROR IS FOCUSED ON
THE NEXT QUESTION THAT HE OR SHE
MIGHT WRITE.
FOURTH, I SUBMIT THAT THERE IS
NO CLEAR PRECEDENT FROM THIS
COURT ON THE ISSUE.
50 YEARS AGO, IN THE FERRARI
OPINION, THE COURT CONSIDERED A
JUROR HANDBOOK THAT STATED AMONG
OTHER THINGS THAT JURORS SHOULD
NOT ASK QUESTIONS IN CRIMINAL
CASES.
THE COURT COMMENTED ON THAT
HANDBOOK AT THE END OF THE
FERRARI OPINION AND SAID WE
THINK UPON APPROPRIATE OCCASIONS
A TRIER OF FACT MIGHT BE
COMPLETELY JUSTIFIED IN
PROPOUNDING A QUESTION, BUT IN
FERRARI, THERE WAS NO INDICATION
THAT THE JURORS ASKED ANY
QUESTIONS AND MORE IMPORTANTLY,
THERE'S NO INDICATION THAT THE
ISSUES THAT WERE CONSIDERED BY
THE MINNESOTA SUPREME COURT WERE
CONSIDERED BY THIS COURT 5 TO
YEARS AGO.
SO I SUBMIT THAT THE LANGUAGE IN
FERRARI IS NOT CONTROLLING OONTS
ISSUE BEFORE THE COURT TODAY.
AND I WOULD NOTE THAT IN 1994,
THE FOURTH D.C.A. SPECIFIC
COMPLIF STATED IN THE OPINION,
THAT JUROR QUESTIONS SHOULD BE
STRONGLY DISCOURAGED.
BUT DESPITE THE HOLDINGS, SOME
TRIAL COURTS THROUGHOUT THE
STATE HAVE STILL ACTIVELY
ENCOURAGED JURORS TO ASK
QUESTIONS IN CRIMINAL CASES.
AND FINALLY FROM A PURE
EFFICIENCY STANDPOINT, JUROR
QUESTIONS IN CRIMINAL CASES
SHOULD BE PROHIBITED, SIMPLY
BECAUSE OF THE LENGTH OF TIME
THAT IT WILL TAKE TO ALLOW JUROR
QUESTIONS TO BE ASKED.
ONE OF THE BIGGEST CHALLENGES
FACING THIS COURT IS EFFICIENT
USE OF RESOURCES, THE LACK OF
AVAILABLE JUDGES, AND CRIMINAL
DOCKET OVERFLOW.
THE JURY QUESTION PROCEDURE
INVOLVES JURORS WRITING DOWN
QUESTIONS, COMMITTING THOSE
QUESTIONS TO THE BAILIFF, THE
JUDGE READING THE QUESTIONS, THE
PARTIES COMING TO THE BENCH AND
GOING TO SIDEBAR, DISCUSSING THE
QUESTIONS, MAYBE OBJECTING TO
THE QUELS, MAYBE EVEN REWRITING
SOME OF THE QUESTIONS, THEN
EITHER THE JUDGE OR I'VE SEEN IN
SOME CASES WHERE THE ATTORNEYS
ARE ACTUALLY ALLOWED TO ASK THE
QUESTIONS, THE JURORS QUESTIONS
TO THE WITNESS, AND THEN USUALLY
THE COURT WOULD ALLOW SOME TYPE
OF FOLLOWUP OF THE JURY'S
QUESTIONS, THAT ALL TAKES A LOT
OF TIME.
AND IN A CRIMINAL CASE, IF YOU
HAVE SEVERAL WITNESSES, IT COULD
ADD A COUPLE OF HOURS TO THE
TRIAL.
PERHAPS THE STRONGEST ARGUMENT
IN SUPPORT OF JURY QUESTIONS IS
THAT JURY QUESTIONS ENHANCE THE
ULTIMATE GOAL OF FINDING THE
TRUTH.
IN THE MORRISON CASE, DETECTIVE
COURT OF CRIMINAL APPEALS
REJECTED THAT ARGUMENT AND
STATED THAT DUE PROCESS AND
THOSE INDIVIDUAL RIGHTS THAT ARE
FUNDAMENTAL TO OUR QUALITY OF
LIFE, CO-EXIST WITH AND AT TIMES
OVERRIDE THE TRUTH FINDING
FUNCTIONS.
IN A CRIMINAL TRIAL, THE TRUTH
FINDING GOAL MUST BE BALANCED
DWENS A DEFENDANT -- AGAINST A
DEFENDANT'S CRIMINAL RIGHTS.
THE BEST EXAMPLE OF THIS IS THE
DEFENDANT'S RIGHT TO REMAIN
SILENT.
BASED ON OUR FEDERAL
CONSTITUTION, THE RIGHT OF A
DEFENDANT TO REMAIN SILENT
OBVIOUSLY TRUMPS THE JURY'S
RIGHT TO HEAR FROM ALL OF THE
WITNESSES IN ORDER TO FIND THE
TRUTH.
>> IF YOU COULD KIND OF BRING IT
TO A CONCLUSION HERE.
WE'VE GIVEN YOU SOME LEEWAY, BUT
YOU'VE GOT A MAJOR POINTS, HIT
IT.
>> EACH OF THE ACTORS HAVE A
ROLE, THE JURY'S ROLE IS TO BE A
NEUTRAL AND DETACHED DECISION
MAKER, NOT AN ACTIVE -- NOT A
BUNCH OF ACTIVE INTERROGATORS.
EVERYONE WOULD AGREE THAT IT
WOULD BE IMPROPER FOR THE JURY
TO DECIDE THE APPLICABLE LAW TO
A CASE.
THAT'S THE ROLE RESERVED FOR THE
JUDGE.
LIKEWISE, IT'S IMPROPER TO ALLOW
THE JURY TO ASK QUESTIONS OF
WITNESSES.
THAT'S A PATROL THAT'S RESERVED
EXCLUSIVELY FOR THE ATTORNEYS.
THANK YOU.
>> THANK YOU.
JUDGE EATON?
>>
>> GOOD MORNING.
I'M ROY EATON, AND I CHAIR YOUR
CRIMINAL STEERING COMMITTEE.
I WANT TO ADDRESS FOUR SEPARATE
AREAS QUICKLY THIS MORNING.
FIRST I'D LIKE TO HAVE AN
OBSERVATION AND THAT IS THAT
THIS JURY IN VOW!!!!!!!!!!!!!! INNOVATION STUFF IS
NOT VERY INNOVATIVE.
MOST OF THESE THINGS ON THE LIST
HAVE BEEN HAPPENING AROUND THE
STATE FOR YEARS.
FOR EXAMPLE, THE JURY QUESTION
PROBLEM, I'VE BEEN ALLOWING
JURIES TO ASK QUESTIONS FOR 19
YEARS.
I'VE NEVER HAD A SITUATION WHERE
A JUROR ASKED A QUESTION THAT
FILLED IN THE GAP AND MADE THE
PROSECUTION'S CASE AND I NEVER
HAD ONE THAT TOOK OUT.
GENERALLY, YOU'LL HAVE A
QUESTION OR TWO IN A CASE AND
OFTENTIMES, THEY'RE VERY
INTELLIGENT QUESTIONS.
RECENTLY I TRIED A CASE
INVOLVING AN AUTOMOBILE ACCIDENT99!!!!!!!!!!!!!!
ACCIDENT.
A MAN SHRAWTSER CASE AND A
LOT -- MANSLAUGHTER CASE AND A
LOT HAD TO DO WITH
RECONSTRUCTION AND THE ANGLES
AND DISTANCES AND THAT SORT OF
THING WERE VERY COMPLEX AND A
JUROR ASKED A QUESTION OF ONE OF
THE EXPERTS ABOUT HOW HE ARRIVED
AT HIS MATHEMATICS, AND IT WAS A
VERY INTELLIGENT QUESTION AND IT
CLEARED UP SOMETHING THAT WAS
QUITE FRANKLY IN MY MIND, SO I
DON'T THINK THAT THIS IS A
PROBLEM THAT NEEDS TO BE
ADDRESSED LIKE THE SUPREME COURT
OF MINNESOTA.
I THINK MAYBE IN MINNESOTA, IT'S
A PROBLEM, BUT IT CERTAINLY
HASN'T BEEN A PROBLEM IN FLORIDA
TO MY KNOWLEDGE.
JURY INSTRUCTIONS BEFORE FINAL
ARGUMENT.
I'M -- THE STEER COMMITTEE ASKED
THE COURT TO GIVE THE TRIAL
JUDGES DISCRETION TO DO THAT.
I PERSONALLY HAVE NEVER DONE IT,
BUT I'VE TALKED TO A LOT OF
JUDGES WHO HAVE, AND IT CHANGES
THE WHOLE APPROACH TO FINAL
ARGUMENT.
IT REQUIRES THE LAWYERS TO FOCUS
ON THE ISSUES INSTEAD OF
FOCUSING ON WHAT THE JURY
INSTRUCTIONS ARE GOING TO BE.
I DON'T KNOW HOW MANY TIMES I'VE
SEEN THEM, YOU KNOW, PUT THE
JURY INSTRUCTION UP ON THE BIG
SCREEN IN MY COURTROOM, AND SAY,
NOW JUDGE EATON IS GOING TO
INSTRUCT YOU AS FOLLOWS.
WELL, IF I'VE ALREADY INSTRUCTED
THEM, THEN THEY CAN GET AWAY
FROM THAT HAND FOCUS ON WHAT THE
ISSUES ARE, SO I!!!! I THINK IT'S A
GOOD IDEA AND IMD LIKE TO TRY
IT -- I WOULD LIKE TO TRY IT
QUITE FRANKLY.
I HAVE BEEN GIVING JURIES THE
COPIES OF INSTRUCTIONS THE WHOLE
TIME I'M ON THE BENCH.
I GIVE THEM A SET OF PRELIMINARY
INSTRUCTIONS THAT GIVES THEM THE
ELEMENTS OF THE OFFENSES, THE
REASONABLE DOUBT INSTRUCTION AND
THE CREDIBILITY OF WITNESSES
INSTRUCTION.
AND I LET THEM KEEP THOSE DURING
THE COURSE OF THE TRIAL SO THEY
CAN REFER TO THEM AND THAT WAY
THE JURY KNOWS WHAT TO LISTEN
TO, BECAUSE THEY KNOW WHAT THE
ELEMENTS OF THE OFFENSE ARE.
AND AT THE END OF THE TRIAL, I
ALSO GIVE THEM A COMPLETE SET OF
INSTRUCTIONS, EACH JUROR.
AND AS A RESULT, WE HAVE VERY
FEW QUESTIONS THAT COME BACK
FROM JURORS, BECAUSE THEY'VE GOT
THE SET OF INSTRUCTIONS AND THEY
CAN RE-READ THEM, AND SO WE
DON'T GET QUESTIONS OF, YOU
KNOW, WHAT WAS SOMETHING ABOUT
WHAT ELEMENT OF THE OFFENSE WAS
THIS OR THAT, BECAUSE THEY'VE
GOT IT AND THEY'VE GOT IT THERE
WITH THEM.
THE COMPLAINT THAT I HAVE HEARD
ABOUT THIS PROBLEM IS THAT THE
DEFENSE LAWYERS DON'T WANT THE
PROSECUTION TO GET THE FINAL
WORD IN THESE CASES.
BUT THE CRIMINAL COURT STEERING
COMMITTEE'S RECOMMENDATION IS
THAT THOSE FINAL INSTRUCTIONS
INVOLVING RULES FOR DELIBERATION
AND THE CAUTIONARY INSTRUCTION
AND THE COMMITTING THE CASE TO
THE JURY INSTRUCTION OUGHT TO BE
GIVEN AFTER THE ARGUMENTS ARE
COMPLETED, AND THAT WAY THE
COURT HAS THE FINAL WORD AND NOT
THE LAWYERS.
WELL IN JUROR NOTE TAKING, I
HAVE BEEN ALLOWING JURORS TO
TAKE NOTES EVER SINCE I'VE BEEN
ON THE BENCH.
QUITE FRANKLY, UNTIL RECENTLY, I
DIDN'T EVEN THINK THAT IT WAS
NECESSARY TO GIVE THEM AN
INSTRUCTION ABOUT NOTE TAKING.
I THOUGHT IT WAS KIND OF AN
INSULT TO THEIR INTELLIGENCE TO
TELL THEM THAT YOUR NOTES MAY
NOT BE QUITE AS GOOD AS THE
RECORD.
BUT THERE IS AN INSTRUCTION OUT
THERE THAT HAS BEEN PROPOSED AND
I'VE TRIED USING IT A COUPLE
WEEKS AGO AND SEEMS TO WORK
PRETTY WELL, ALTHOUGH I'M NOT SO
SURE THAT THE JURORS NEED AN
INSTRUCTION ABOUT NOTE TAKING.
IT'S PRETTY COMMON SENSE.
IN ANY EVENT, THE ONLY FINAL
THING I'D LIKE TO SAY IS I CAN'T
BE HERE TOMORROW AND I KNOW THE
ISSUE OF OPENING AND CLOSING
FINAL ARGUMENTS IS GOING TO COME
UP TOMORROW AND THE STEER
COMMITTEE HAS COMMITTED A
REPORT, IT'S DATED APRIL 29, AND
IT'S -- IT WAS ON THE LETTER
THAT WE SENT TO YOU, AND IT
COVERS THAT ISSUE AS WELL AS THE
ISSUE ABOUT THE FINAL ARGUMENT.
>> JUDGE, THANK YOU VERY MUCH.
ACCORDING TO MY NOTES, THAT
CONCLUDES THE DIRECT
PRESENTATIONS, UNLESS THERE'S
SOMEONE WHO DID NOT REGISTER.
AND IF I MAY, LET ME START JUST
THE GENERAL QUESTIONING AND THEN
WE'RE GOING TO OPEN THIS UP TO
QUESTIONS FROM ALL OF US.
WITH REGARD TO THOSE THINGS,
SUCH AS JUROR QUESTIONS,
QUESTIONNAIRES, AND NOTE TAKING,
THOSE TYPES OF THINGS, I WOULD
POSE THE GENERAL QUESTION TO ALL
OF YOU, COULD YOU RESPOND TO
WHETHER THIS IS AN AREA THAT
SHOULD HAVE MANDATORY, UNIFORM
RULES OR ARE THESE AREAS ONES
THAT SHOULD BE PERMITTED BUT
LEFT TO THE DISCRETION OF THE
INDIVIDUAL JUDGES FOR
IMPLEMENTATION IN EACH COURTROOM
AS THAT JUDGE SEES FIT?
SOMEONE CARE TO START WITH THAT,
JUDGE BATEMAN, ONE OF THE JUDGES
WANT TO START WITH THIS?
>> I'LL TRY.
IT SEEMS TO ME THAT -- I WANT TO
BE CAREFUL WHAT I SAY BECAUSE
THERE ARE I DON'T KNOW HOW MANY
JUDGES IN HERE AND WE PROBABLY
WOULD ALL DO IT DIFFERENTLY.
>> JUDGE BATEMAN, YOU'RE WITH
FRIENDS AND WE UNDER!!!!!!!!!!!! UNDERSTAND.
>> THERE MIGHT BE SOME
DIFFERENCES IN THE WAY WE MAKE A
PRESENTATION OR SOMETHING LIKE
THAT.
I THINK, IN MY EXPERIENCE, THAT
A FRAMEWORK IN A RULE IS GOOD.
FOR EXAMPLE, THE QUESTION THAT
THE MINORITY SUGGESTED, THE RULE
THAT THE MINORITY SUGGESTED,
IT'S DISCRETIONARY, BUT IF YOU
ALLOW IT, THESE ARE THE THINGS
YOU MAKE SURE YOU COVER AND YOU
HAVE TO TALK WITH THE JURORS
AHEAD OF TIME ABOUT IT, BUT THEN
I DON'T THINK THAT THE ACTUAL
WAY THAT IT'S DONE NEEDS TO BE
CODIFIED, SO I THINK THAT SHOULD
BE LEFT UP TO THE INDIVIDUAL
JUDGE IN THE COURTROOM.
AND IT DEPENDS ON THE FACTS OF
THE CASE AND THERE MAY BE SOME
CASES YOU'RE NOT GOING TO ALLOW
QUESTIONS.
YOU'VE AGREED WITH THE LAWYERS
YOU'RE NOT GOING TO ALLOW
QUESTIONS.
>> YOU'RE TOUCHING ON SOMETHING
THAT REALLY WASN'T DISCUSSED
DURING THE PRESENTATIONS.
AT LEAST CERTAINLY NOT DISCUSSED
EXTENSIVELY.
SOMETHING LIKE A JUROR
QUESTIONNAIRE, SHOULDN'T
SOMETHING LIKE THAT IN TERMS OF
THE DETERMINATION OF THE
INFORMATION THAT IS IN COURT,
THE LAWYERS, PARTIES TO THE
CASE, HAVE ABOUT A PROSPECTIVE
JUROR, ISN'T THAT SOMETHING THAT
SHOULD BE STANDARDIZED AROUND
THE STATE, IN OTHER WORDS, ISN'T
THAT SORT OF A FUNDAMENTAL KIND
OF THING THAT WE ALL OUGHT TO BE
ABLE TO COME TO SOME KIND OF AN
AGREEMENT ON, THAT -- IN
BALANCING IT THING ABOUT BEING
INTRUSIVE OVER -- WITH THE FACT
THAT THIS IS INFORMATION THAT'S
GOING TO COME OUT ANYWAY, AND
YOU KNOW, AND NEEDS TO BE THERE,
AND HAVING THE MOST EFFICIENT
WAY, ISN'T THAT AN EXAMPLE OF
SOMETHING THAT PROBABLY SHOULD
BE STANDARDIZED AROUND THE
STATE?
>> I THINK THAT IS ONE AREA THAT
IS AMENABLE TO BEING
STANDARDIZED IN THE JUROR
QUESTIONNAIRE.
THEN YOU HAVE THE ISSUE OF HOW
IT'S DONE IN THE INDIVIDUAL
CIRCUIT.
FOR EXAMPLE, SOME CIRCUITS HAVE
JURORS COMING IN EVERY DAY.
YOU SEND OUT THE JUROR
QUESTIONNAIRE WITH THE SUMMONS
WAY AHEAD OF TIME OR DO YOU WAIT
UNTIL THEY GET INTO THE
COURTHOUSE AND THEN DO YOU WAIT
UNTIL THEY'RE A PANEL, WHETHER
IT'S A CIVIL OR A CRIMINAL CASE.
THERE'S A LOT OF THAT KIND OF
THING THAT WOULD HAVE TO BE --
THERE HAS TO BE SOME DISCRETION
THERE IN THE INDIVIDUAL CIRCUIT
BUT THE QUESTIONNAIRE ITSELF I
THINK, QUESTION.
>> AND WE HAVE, IN THE PRESENT
RULES --
>> CIVIL RULES.
>> THE CIVIL RULES, A
QUESTIONNAIRE, AND WHY IS IT
THAT POSITION TO COVER ALL KINDS
OF CASES WITHOUT BECOMING TOO
DETAILED, WHICH WOULD -- SEEMS
TO ME THAT YOU GET TOO MUCH
DETAIL AND THE JURORS ARE GOING
TO REBEL AGAINST IT AND YOU'RE
GOING TO CREATE MORE PROBLEMS
PERHAPS POST VERDICT THAN YOU
ARE SOLVED.
>> AND YOU HAVE A POINT.
IN FACT, A CRIMINAL RULES
COMMITTEE, WHICH I KNOW
SOMETHING ABOUT ACTUALLY USED
THE CIVIL FORM TO CREATE ITS
RECOMMENDED FORM AS WELL.
SO WE WENT WITH THAT FORM.
UNDERSTAND CIVIL RULES MIGHT
BE -- OR SOMEBODY IS PRESENTING
A MUCH BROADER AND I THINK THOSE
ARE THE ISSUES THAT YOU HAVE TO
BE CONCERNED ABOUT.
THE BASIC INFORMATION YOU'RE
GOING TO GET FROM EVERY JUROR IS
SOMETHING THEY CAN FILL OUT.
I THINK YOU RUN INTO A LONGER
QUESTIONNAIRE, YOU RUN INTO
PROBLEMS PEOPLE CAN'T READ, YOU
HAVE TO HAVE PEOPLE ASK THE
QUESTIONS AND WRITE THEM DOWN
FOR THEM.
THERE'S A LOT OF ISSUES THAT
COULD COME UP AND WHAT DO YOU DO
WITH THOSE FORMS AFTERWARDS?
DO YOU DESTROY THOSE FORMS 70 A
LOT OF PERSONAL INFORMATION ON
THEM.
SHOULD THEY BE DESTROYED, DO
THEY GO IN THE COURT FILE?
THERE'S A LOT OF QUESTIONS THAT
IT RAISES.
A SIMPLE, BASIC INFORMATION
WHERE THEY LIVE IN THE COUNTY,
IF THEY'VE EVER SERVED ON A JURY
BEFORE, EMPLOYMENT, EDUCATION,
THOSE KINDS OF THINGS ARE
IMPORTANT TO KNOW.
>> CERTAINLY.
[INAUDIBLE]
>> I'D LIKE TO GIVE YOU MY TAKE
ON THE QUESTIONNAIRES.
WHAT HAPPENS ON MONDAY MORNING,
IF I HAVE A CAPITAL CASE, SAY
PENDING, IS WE SEGREGATE FROM
THE JURY POOL 60 PEOPLE.
AND IF I'M GOING TO USE JURY
QUESTIONNAIRES, WHAT THEY DO IS
THEY FILL OUT THE QUESTIONNAIRES
AT THAT TIME, THEN THE CLERK HAS
TO MAKE COPIES OF THE
QUESTIONNAIRES AND GIVE THEM TO
THE LAWYERS AND NOW THEY'VE GOT
A STACK OF 60 QUESTIONNAIRES AND
OF COURSE I CALL THE JURORS'
NAMES BLINDLY, SO WE DON'T KNOW
IN WHAT ORDER THEY ARE, SO THE
LAWYERS ARE THUMBING THROUGH THE
QUESTIONNAIRES, ALL RIGHT.
BY THE TIME WE GET THE COPIES
MADE, IT'S NEARLY NOON AND NOW I
WASTED MOST OF THE MORNING WITH
JURORS FILLING OUT
QUESTIONNAIRES.
AND OF A LUNCH WHEN THE JURORS
START --
[INAUDIBLE]
>> NO, THEY FILL IT OUT DOWN
STAIRS IN THE JURY LOUNGE.
[INAUDIBLE]
>> NO, IT'S NOT STANDARD.
WE DON'T HAVE A STANDARD
CRIMINAL JURY QUESTIONNAIRE.
[.
[INAUDIBLE]
>> YES, BUT THEY FILL IT OUT
DOWN STAIRS IN THE JURY
ASSEMBLY, BUT IT TAKES TIME TO
FILL OUT THESE QUESTIONNAIRES,
BECAUSE THE LAWYERS WANT THESE
QUESTIONNAIRES TO BE VERY, VERY
COMPLETE.
SO THEY GET UP TO THE COURTROOM
AND RIGHT AFTER LUNCH WE START
VOYEUR -- VOIR DIRE AND YOU KNOW
WHAT, THEY ASK THE JURORS THE
SAME QUESTIONS ON THE
QUESTIONNAIRE.
SO WE DON'T OF SAVE ANY TIME, WE
DON'T SAVE ANYTHING.
SO I'VE TOLD THEM RECENTLY WHEN
THEY WANTED TO DO A
QUESTIONNAIRE, I SAID NASTY
FINE -- THAT'S FINE, BUT YOU
CAN'T ASK ANY QUESTION THAT THE
JURORS HAVE ALREADY ANSWERED AND
THEN ALL OF A SUDDEN THEY SAID
JUDGE, WE DON'T THINK WE WANT
THE QUESTIONNAIRES, SO IT REALLY
IS A LOGISTICAL PROBLEM IN MANY
CASES.
>> ANY OTHER QUESTIONS OF JUDGE
EATON ON THE QUESTIONNAIRES?
OK.
>> ONE POINT ON THE
QUESTIONNAIRES, WE USED STANDARD
FOR CIVIL AND CRIMINAL, WE HAVE
A VANILLA SET, EVERYBODY FILLS
THEM OUT DOWN STAIRS, BUT IF
SOME CASES WE TEACH IN JUDICIAL
COLLEGE, YOU MAY HAVE A SPECIAL
CASE THAT HAS SENSITIVE ISSUES
THAT MAY BE COMPLICATED, AND
RATHER THAN INDIVIDUAL VOIR
DIRE, YOU USE THE QUESTIONNAIRE
TO SCREEN JURORS, SO THERE MAY
BE A CALL FOR A QUESTIONNAIRE OR
DISCRETION ON THE PART OF THE
JUDGE FOR A WRITTEN
QUESTIONNAIRE, BECAUSE THEN
THAT'S DONE PRIVATELY BY THE
JURORS, AN YOU'RE NOT ASKING THE
QUESTIONS OPENLY AND YOU DON'T
HAVE TO TAKE THEM BACK TO THE
JURY ROOM.
[INAUDIBLE]
>> YOU'RE ABSOLUTELY RIGHT, IT'S
GOING TO RAISE A LOT OF
QUESTIONS IN THEIR MIND, IT'S
GOING TO BE INTRUSIVE, YOU DON'T
NEED IT IN MOST CASES, SO I
DON'T THINK THAT IT'S NECESSARY
TO ASK THESE LENGTHY THINGS.
OUR QUESTIONNAIRE IS ONE SHEET
AND ABOUT 8 OR 10 QUESTIONS ON
IT.
>> WAS THERE SOMETHING WRONG
WITH THE QUESTIONNAIRE THAT'S
ACTUALLY IN THE BOOK UNDER THE
CIVIL RULES?
>> ABSOLUTELY NOT.
>> AND SO WAS THERE ANY
DISCUSSION ABOUT WHY WE WERE
ADDING THESE OTHER QUESTIONS,
BECAUSE SOME OF THEM SEEM -- I
DON'T EVEN KNOW WHAT THE PURPOSE
OF THEM WOULD BE, TO EVEN ASK
THOSE QUESTIONS.
>> I BETTER LET MR. PARK ANSWER
THAT.
I SHOULD HAVE SAD DOWN.
[INAUDIBLE]
[INAUDIBLE]
>> I'M JUST CONCERNED, --
[INAUDIBLE]
>> I THINK ALL THOSE THINGS WERE
CONSIDERED AND IT'S A BALANCING
ACT.
WHEN IT'S ALL PUT INTO
PERSPECTIVE.
THE TIME THE INTRUSIVENESS,
TRYING TO OF IS A THE I GUESS
JUDICIAL ECONOMY, HOPEFULLY YOU
HAVE LAWYERS DOING THEIR JOB
WHERE THEY'RE NOT WASTING TIME
ON VOIR DIRE ASKING THE SAME
QUESTIONS AGAIN.
FOR INSTANCE, ONE OF THE
QUESTIONS IS, THAT I HATE
ASKING, IN VOIR DIRE IS, YOU
KNOW, CAN YOU GIVE ME A LITTLE
BACKGROUND ON YOUR EDUCATION.
SOMETIMES THAT CAN BE AN
EMBARRASSING KIND OF QUESTION,
IT MIGHT BE IMPORTANT FOR
WHATEVER CASE IS INVOLVED IN AND
SOME OF THESE QUESTIONS YOU KIND
OF HATE TO PUT OUT THERE ON THE
FLOOR.
I'M NOT SAYING ALL THOSE
QUESTIONS ARE LIKE THAT, AND I
CERTAINLY UNDERSTAND THAT
PERSPECTIVE, AND IT WAS BROUGHT
UP.
AND I DON'T THINK IT'S HANDLED
THE SAME IN HALL CIRCUITS EITHER
ABOUT HOW AND WHEN THEY GET
THESE.
I RECALL FILLING ONE OUT WHEN I
WAS CALLED TO JURY DUTY THAT WAS
A LITTLE MORE EXTENSIVE THAN OUR
STANDARD ONE AND WE WERE SITTING
THERE FILLING THEM OUT, AND I
WAS KIND OF CURIOUS ABOUT IT
BECAUSE IT HAD MORE QUESTIONS
THAN I WAS USED TO, BUT YOU DID
IT, AND YOU DID YOUR JOB, AND
YOU FILLED THOSE THINGS OUT AND
ACCORDING TO WHAT THE -- AND I
THINK WE TOOK TO HEART WHAT THE
JURY INNOVATION RECOMMENDATION
WAS, BECAUSE THEY'RE SAYING,
WELL, YOU'RE GOING TO PUT A
LITTLE MORE THOUGHTFULNESS INTO
IT, YOU'RE GOING TO HAVE THE
INFORMATION THAT YOU NEED AND
WITH ALL DUE RESPECT TO JUDGE
BLANT WHO WROTE THE THINGS HE
HAD TO SAY, I THINK THOSE THINGS
THAT WE'RE TALKING ABOUT WITH
REGARD TO THE POTENTIAL JUDICIAL
ECONOMY, AND YOU KNOW, WE CAN'T
I GUESS PUT UP A RULE FOR -- TRY
TO INVENT RULES FOR BAD JUDGES
AND BAD LAWYERS THAT ARE ARE
GOING TO WASTE OUR TIME DOING
THESE THINGS, BUT THE THOUGHT
PROCESS WAS JUDICIAL ECONOMY AND
WILL SAVE SOMETHING HERE BY
DOING THIS.
[INAUDIBLE]
>> I THINK THAT GETS TO BE A
REAL PROBLEM.
IT HAPPENS IN VOIR DIRE IN ANY
EVENT IN SOME INSTANCES, IN SOME
WAY WHERE SOMEBODY HAS FOLLOWUP
QUESTIONS.
WE ALL TRY TO AVOID GETTING
PEOPLE ANGRY BY CONTINUING TO
ASK THEM THE SAME QUESTIONS.
I MEAN, IT'S NOT SMART AS A
LAWYER, YOU KNOW, WHEN THEY KNOW
THEY'VE ALREADY GOT THE
INFORMATION I'M GOING TO GO UP
AND START ASKING THEM THE SAME
QUESTION.
>> LET ME ASK YOU A QUESTION, IN
A CIVIL INDICATES, WHAT DOES IT
MATTER IF YOU'RE A FRIEND OR
RELATIVE OF LAW ENFORCEMENT OR
BEEN A VICTIM OF A CRIME OR
CHARGED WITH COMMITTEE A CRIME?
WHY SHOULD THAT BE IN EVERY
QUESTIONNAIRE GIVEN IN A CIVIL
JURY CASE?
>> WELL WITH THE ONES THAT WE
HAVE NOW AND I'LL COMMENT ON
THAT IN A MINUTE, BUT THE
QUESTIONNAIRE WE HAVE RIGHT NOW
TALKS ABOUT PERSONAL INJURY AND
WITH YOU'RE SERVING ON A CIVIL
CASE, THAT MIGHT NOT BE, YOU
KNOW, SAY A CONTRACT CASE, IT
MIGHT NOT HAVE ANYTHING TO DO
WITH THAT PARTICULAR ACTION
EITHER, BUT NONETHELESS THE
QUESTION IS THERE.
I'M NOT SURE HOW YOU CONSTRUCT
SOMETHING THAT IS GOING TO BE
BROAD ENOUGH TO COVER
EVERYTHING, YET NARROW ENOUGH
NOT TO, YOU KNOW, BEAR ON OTHER
SUBJECTS.
>> WELL IF YOU HAVE A PERSONAL
INJURY CASE, WHY WOULD YOU NEED
TO KNOW IF THEY'RE A RELATIVE OR
FRIEND OF LAW ENFORCEMENT?
>> I JUST NEVER HEARD IT ASKED
IN A CIVIL CASE BEFORE.
>> THAT'S A GOOD QUESTION.
I'VE LOOKED AT SOME OF THOSE AND
WHEN WE WERE GOING THROUGH
THOSE, PEOPLE IT THE SAME KINDS
OF QUESTIONS WITH REGARD TO SOME
OF THESE QUESTIONS, WHETHER OR
NOT WE SHOULD HAVE EACH ONE OF
THESE, AND I GUESS THE BROAD
SPECTRUM OF IT ALL WAS, THIS IS
WHAT THE PRODUCT IS, YOU KNOW,
HOW MUCH DO YOU WANT TO PAIR
DOWN ON THIS HAND HOW MUCH DO
YOU NOT, AND THAT WAS THE
PRODUCT THAT WE GENERATED, AND,
YOU KNOW, UNDER ALL
CIRCUMSTANCES, YOU KNOW, IT'S
PRETTY DIFFICULT -- WELL, IT'S
PRETTY DIFFICULT TO IMAGINE ANY
CASE IN WHICH ALL OF THESE
QUESTIONS ARE GOING TO BE
RELEVANT EVERY TIME.
IT'S NOT GOING TO HAPPEN
PROBABLY.
BUT NONETHELESS, WE TRY TO PUT
TOGETHER THE BEST FORM WE COULD
THAT WAS AS BROAD AS WE COULD
MAKE IT AND STILL YOU KNOW, KEEP
IT WITHIN THE CONTEXT OF WHAT
OUR CHARGE WAS.
>> WHAT WAS YOUR OPINION
REGARDING DESTRUCTION, WHAT
HAPPENS TO THESE EXTENSIVE
QUESTIONNAIRES?
>> WELL, THAT'S AN INTERESTING
QUESTION BECAUSE I DON'T KNOW
THAT AND I ASKED THAT QUESTION
BEFORE OF WHAT HAPPENS, AND FROM
WHAT I UNDERSTAND WHAT OCCURS,
IS THAT THE -- NUMBER ONE, THE
BAILIFF PICKS UP OUR COPIES WHEN
WE HAVE THEM, WE DON'T KEEP THE
ONES THAT AREN'T -- THAT THE
JURORS AREN'T THERE ANYMORE.
THE ONES THAT ARE GONE, THEY
COLLECT THAT INFORMATION.
I THINK IT GOES BACK TO THE
CLERK.
I'M NOT SURE WHAT THE CLERK DOES
WITH IT.
THE ONES THAT ARE ON THE JURY I
ASSUME STAY WITH THE COURT FILE.
>> JUSTICE WELLS HAS SOME
QUESTIONS ON THISH!!!!!!!!!!!! A DIFFERENT TOPIC.
>> REALLY, I THINK JUDGE EATON,
SINCE YOU SAY THAT YOU HAVE BEEN
USING -- HAVING JURORS QUESTIONS
IN CRIMINAL CASES OVER THE
YEARS, DO YOU THINK THAT WE NEED
TO HAVE A UNIFORM RULE AS TO
JUROR QUESTIONS AND INSTRUCTION
AS HAS BEEN PROPOSED HERE?
>> NO.
>> OR DO YOU THINK JUST LEAVE IT
TO THE DISCRETION OF EACH JUDGE?
>> ABSOLUTELY.
I DON'T THINK WE NEED A RULE FOR
THAT.
[INAUDIBLE]
L!!
>> THERE ARE A WIDE VARIETY OF
THINGS THAT I DO THAT I DO
DIFFERENTLY THAN MY COLLEAGUES
DO AND THERE ARE A WIDE VARIETY
OF THINGS THAT THEY -- YOU KNOW,
AND YOU CAN GO INTO COURTROOMS
AROUND THE STATE AND YOU'LL SEE
THAT DIFFERENT JUDGES HANDLE
THINGS DIFFERENT WAYS, AND WE
DON'T HAVE A RULE FOR EVERY ONE
OF THOSE LITTLE THINGS.
[INAUDIBLE]
>> NO, IT STARTED WHEN YOU
BECAME A LAWYER.
[INAUDIBLE]
>> WELL A PROPOSED JURY
INSTRUCTION HAS BEEN SUBMITTED.
>> OK.
THAT WAS BASIC.
>> IN FACT, I HAVE BEEN USING
THAT INSTRUCTION RECENTLY AND
IT'S BETTER THAN THE INSTRUCTION
I WAS GIVING THEM, BUT I DON'T
KNOW THAT YOU NEED TO HAVE A
RULE.
>> LET ME ASK, PERHAPS JUDGE
BATEMAN ON THE -- AND BOTH OF
YOU ON THE NOTE TAKING BY
JURORS.
PART OF WHAT HAS BEEN
RECOMMENDED HERE WOULD HAVE THE
JUROR NOTES DESTROYED BY THE
BAILIFF.
AFTER THE DELIBERATION.
AND SINCE YOU'VE ALLOWED NO NOTE
TAKING, HAS THERE BEEN A PROBLEM
WITH THE DESTRUCTION OF THE NOTE
OR ANYBODY RAISE THAT TO YOUR
KNOWLEDGE?
>> NO.
I DESTROY THEM.
I HAVE THE COURT DEPUTY DESTROY
THEM.
>> AND THERE ISN'T -- WELL,
THERE ISN'T -- I DON'T REMEMBER
THERE BEING AN APPELLATE ISSUE,
BUT IT SEEMS TO ME IT'S
CONCEIVABLE THERE COULD BE.
[INAUDIBLE]
>> I UNDERSTAND THAT.
>> AND I DO MINE PERSONALLY.
>> AT ONE TIME IN OUR LEGAL
HISTORY, THERE WAS A PROBLEM
WITH LAWYERS RUNNING IN LOOKING
FOR QUOTIENT VERDICTS AND THOSE
TYPE OF THING.
>> WE DESTROY THEM IMMEDIATELY
AFTER THE TRIAL.
[INAUDIBLE]
>> YES.
>> I DON'T.
I ASK THEM NOT TO TAKE NOTES
DURING OPENING STATEMENTS,
BECAUSE IT'S NOT EVIDENCE.
AND I WANT THEM TO LISTEN.
DURING CLOSING ARGUMENTS
HOWEVER, I DO SAY TO THEM,
THEY'RE PERMITTED TO DO IT, BUT
I DON'T ENCOURAGE THEM BECAUSE I
WANT THEM TO GIVE THE LAWYERS
THEIR ATTENTION AND IF THEY'RE
PAYING TOO MUCH ATTENTION TO
TAKING NOTES, I STOP IT.
>> I DON'T TELL THEM THEY CAN'T
TAKE PHOTOGRAPHS DURING OPENING
STATEMENTS ALTHOUGH I'VE NOTICED
OVER THE YEARS THEY DON'T
BECAUSE THEY'RE LISTENING.
>> WE'RE RAPIDLY RUNNING OUT OF
TIME.
>> WE NEED TO THINK IN TERMS OF
THE FACT THAT IF SOME JUDGES ARE
GOING TO BE ALLOWING QUESTIONS,
OTHERS ARE NOT, THINK ABOUT
JURORS WHO ARE GOING TO COME
BACK AGAIN, THEY'VE BEEN ALLOWED
BY ONE JUDGE TO ASK QUESTIONS,
ONE OF THE REASONS YOU DO THAT
IS BECAUSE THEY FEEL
DISENFRANCHISED IF THEY DON'T.
NOW ONE JUDGE HAS LET THEM ASK
QUESTIONS AND ANOTHER ONE IS
SAYING NO, SO THEY'RE GOING --
[INAUDIBLE]
>> WE'RE GOING TO HAVE SOME
FINAL QUICK QUESTIONS, JUSTICE
BELL HAD A QUESTION.
>> MR. UFFERMAN, REAL QUICK, DO
YOU AGREE THAT IN A CRIMINAL
CASE, IF A JUDGE IS THE TRIER OF
FACT, THE JURY HAS BEEN WAIVED,
THE JUDGE CAN ASK THE QUESTION
AND IT'S NO ABUSE OF DISCRETION,
IT WOULD NOT BE APPEALABLE AND
IT'S DONE QUITE OFTEN.
>> UNLESS THE JUDGE ASKED THE
QUESTION, THAT SOMEHOW CAUSED
THE STATE TO MEET ITS BURDEN OF
PROOF AND IN THAT SCENARIO, I
WOULD THINK IT WOULD BE
IMPERMISSIBLE.
>> WELL, DOESN'T THE JUDGE HAVE
THE DISCRETION AT THE END OF THE
CASE TO ALLOW THE STATE TO
REOPEN THE CASE IF THE STATE
SAYS JUDGE MAY WE REOPEN THE
CASE TO FILL THE GAP?
>> YES, THERE IS THAT
DISCRETION, AND AGAIN, I THINK A
JUDGE'S QUESTION IN MY
EXPERIENCE HAS BEEN THAT THE
JUDGE WOULD CLARIFY A WITNESS'S
ANSWER, AN ANSWER THAT'S ALREADY
BEEN GIVEN AND JUST WOULD
CLARIFY IT FURTHER, WOULDN'T GO
INTO A NEW SUBJECT AREA AND
JURORS' QUESTIONS OFTENTIMES GO
INTO A NEW SUBJECT AREA THAT MAY
NOT HAVE BEEN ADDRESSED BY THE
WITNESSES.
>> BUT DOESN'T THAT EXISTING
PROCESS FILTER THAT AND ALLOW
THE ATTORNEYS TO BE ABLE TO
ARGUE THOSE ISSUES?
>> CERTAINLY SOME JUDGES
WON'T -- VERY LIBERAL AT
GRANTING -- SUSTAINING
OBJECTIONS TO PARTICULAR
QUESTIONS, OTHERS JUDGES MAY NOT
AND OTHER JUDGES MAY ALLOW JUROR
QUESTIONS IF THERE'S ANY -- YOU
CAN HAVE A DIFFERENCE BETWEEN
DIFFERENT COURTROOMS, BETWEEN
WHAT QUESTIONS ARE ALLOWED AND
WHICH ONES ARE ARE NOT AND YOU
HAVE THE POSSIBILITY, YOU HAD IT
IN MINNESOTA, I'VE SEEN IT IN
CASES I'VE REVIEWED, WHERE A
MISSING QUESTION HAS NOT BEEN
ANSWERED YET, COULD PROVIDE THE
STATE WITH THE BURDEN OF PROOF
THAT GETS THEM OVER THE HUMP.
>> JUSTICE QUINN.
>> I WANT SOME INFORMATION FROM
ANYONE WHO HAS ACTUALLY LED
JURORS TO TAKE NOTES AND JURORS
HAVE JURORS NOTEBOOKS.
IT SEEMS TO ME THAT WITH THE TWO
THINGS, THE NOTE TAKING GOING
ON, AND A BOOK THAT THEY CAN
ACTUALLY GO THROUGH, YOU DON'T
FIND THAT AT ALL DISTRACTING TO
THE JURORS?
THAT THEY HAVE THESE TWO
THINGS -- OTHER THINGS THAT THEY
ARE FOCUSING ON, IN ADDITION TO
TRYING TO HEAR THE TESTIMONY
COMING FROM THE STAND?
>> I JUST FINISHED A TRIAL A
WEEK LONG MEDICAL MALPRACTICE
TRIAL SEVERAL WEEKS AGO AND WE
HAD A TRIAL NOTEBOOK THAT HAD
THE EXHIBITS AND SO WHEN THE
LAWYERS WERE REFERRING TO THE
EXHIBITS, EACH JUROR HAD A COPY
OF THAT EXHIBIT, MEDICAL RECORDS
AND THINGS LIKE THAT.
>> WHO PAYS FOR THE NOTEBOOKS?
>> THE PARTIES PAY FOR THE
NOTEBOOKS.
EACH HAD THEIR OWN DEFENSE AND
A --
[INAUDIBLE]
SOME OF THE JURORS IN THAT CASE
TOOK NOTES AND A LOT DID NOT.
NO QUESTIONS WERE ASKED IN THE
TRIAL, AND MY EXPERIENCE HAS
BEEN, THAT VERY FEW QUESTIONS
ARE ASKED AND WHEN THEY ARE,
THEY'RE VERY WELL SCREENED AND I
WAS GOING TO SAY, IN MY
EXPERIENCE, IF IT'S
OBJECTIONABLE AND THERE'S AN
OBJECTION, I DON'T ALLOW THE
QUESTION.
>> JUSTICE PARIENTE, ONE LAST
QUESTION.
[INAUDIBLE]
[INAUDIBLE]
>> WE TAUGHT THIS LAST YEAR.
WE HAVE THREE WAYS WE DID IT.
BUT THE ONLY WAY TO DO IT IN
COMPLIANCE WITH THE STATUTE IS
THE WAY JUDGE FREEMAN DOES IT,
HE GIVES EVERYBODY A SHEET OF
PAPER AFTER EVERY WITNESS AND
YOU EITHER WRITE NO QUESTION OR
YOU WRITE THE QUESTION DOWN,
THEN BECAUSE -- BECAUSE IF
YOU'RE IN THE COURTROOM AND THE
JUROR IS WRITING THE QUESTION
AND NOBODY ELSE IS WRITING THE
QUESTION, THEN YOU KNOW WHO IT
IS ANYWAY.
I THINK THAT MOST OF THE JUDGES
THAT HANDLE THIS, ALLOW JURORS
TO RAISE THEIR HAND, LET THE
JUROR ASK THE QUESTION, YOU KNOW
WHO THE JUROR IS AT THAT POINT,
SO DOES -- THE WAY WE TEACH TO
DO IT IS AND WE HAVE A CLIP
BOARD AND THERE'S A SHEET, THE
BAILIFF TAKES IT OVER TO ANY
JURORS THAT HAVE QUESTIONS, YOU
HAVE MORE THAN ONE, THEY WRITE
THE QUESTION DOWN, AND THEN I'VE
GOT A PLACE ON THERE, IF A
LAWYER OBJECTS, I TAKE IT OVER
TO THE SIDEBAR AND SHOW IT TO
THE LAWYERS.
THE JURY CANNOT SEE WHO'S
OBJECTING AND WHO'S NOT, BECAUSE
THEY EITHER CHECK NO OBJECTION
OR OBJECTION.
IF WE HAVE TO HAVE ANY
DISCUSSION, IT'S DONE AT SIDEBAR
SO THE JUROR DOESN'T KNOW WHO'S
TRYING TO EXCLUDE THE QUESTION.
IF IT'S OBJECTIONABLE AND
FRANKLY THE LAWRTION AGREE ON
MOST OF THESE THINGS, AND IT'S
VERY SELDOM --
>> WHAT ABOUT --
[INAUDIBLE]
>> WELL,!! -- YEAH, I DON'T KNOW IF
THAT'S A PROCEDURAL THING OR A
SUBSTANTIVE THING.
I DO DID IN EVERY CASE AND I'M
IN COMPLIANCE WITH THE STATUTE.
ANY JUDGE WHO DOES NOT ALLOW
QUESTIONS IN A CIVIL CASE I
THINK IS --
[INAUDIBLE]
>> THAINDZ.
I DON'T HAVE A POSITION ONE WAY
OR ANOTHER ON THAT.
I GUESS THE RULES COMMITTEE
MIGHT HAVE THAT.
I'M IN FAVOR OF LETTING THEM
HAVE THE QUESTION.
I CAN'T IMAGINE WHY WE WOULD GO
BACK TO THINGS IN CIVIL.
>> LET ME ADREE THAT REAL
QUICKLY, -- ADDRESS THAT REAL
QUICKLY, BECAUSE I UNDERSTAND
THE APPARENT INCONSISTENCY, AND
IT'S NOT APPARENT IT'S A REAL
INCONSISTENCY.
AT THE TIME IT WAS DONE AND IT
WAS BEING DISCUSSED, IT FELT --
THE PREVAILING VIEW WAS IT
SHOULD BE PERMITTED.
THE OTHER SIDE OF THAT COIN IS
I'VE NEVER BEEN INVOLVED NOR
DOES ANYBODY ELSE EVER KNOW OF A
JUDGE RECUSING TO ALLOW A
QUESTION BEING ASKED.
I THINK CONSISTENCY IS
IMPORTANT, AND I THINK THE COURT
SHOULD BE CONSISTENT.
I'LL LEAVE IT AT THAT.
>> THANK YOU.
HAVE WE ADDRESSED THE
RECOMMENDATIONS 26, 31, 32, 33,
34, AND 41?
WE HAVE NOT.
>> I WANT TO BE SURE THAT EVERY
ONE IS COVERED, BECAUSE THEY
WERE DIVIDED INTO TWO CASES AND
IF YOU HAVE ADDITIONAL COMMENTS,
WE'RE GOING TO PERMIT YOU TO
HAVE THOSE.
>> I FORGOT, HAPPY VALENTINE'S
DAY.
>> THANK YOU.
>> WITH REGARD -- A COUPLE OF
THESE ARE NOT I GUESS
PARTICULARLY CONTROVERSIAL.
THE FIRST ONE IS RECOMMENDATION
26, WRITTEN JURY INSTRUCTIONS,
WHICH ALREADY UNDER 1.470, IT
SAID WHEN PRACTICABLE, I CAN'T
REMEMBER THE LIMITING LANGUAGE,
AND BASICALLY, IT SHOULD BE
YEAH, IT'S DONE, AND PART OF
THAT LANGUAGE WAS CHANGED.
I DON'T THINK THERE'S ANY
CONTROVERSY ABOUT THE FACT THAT
THE JURY OUGHT TO GET THE
WRITTEN JURY INSTRUCTIONS.
I CAN'T IMAGINE THAT.
THERE IS A QUESTION ABOUT WHEN,
BECAUSE SOMETIMES WHEN YOU'RE
CHARGING THEM, YOU MIGHT NOT
HAVE ALL THE COPIES MADE UP AT
THAT POINT IN TIME, SO THAT'S
KIND OF IFFY AND TIMINGWISE HOW
IT SHOULD BE
AND WE'RE GOING ALONG WITH
THAT RECOMMENDATION.
THE FINAL INSTRUCTION BEFORE
CLOSING ARGUMENT.
WE AGREE WITH THAT.
THE CONTROVERSY IN THIS BUN
GOES BACK TO THE SHALL vs.
MAY AGAIN.
IN THIS INSTANCE THE
COMMITTEE USED WORD "SHALL."
I WASN'T ONE OF THOSE PEOPLE
IN FAVOR OF THAT KIND OF
LANGUAGE JUST BECAUSE YOU
DON'T KNOW WHAT THE
DIFFERENCE CIRCUMSTANCES
MIGHT BE, BUT THERE WERE A
COUPLE OF STEPS THAT WE
LOOKED AT THAT HAD SIMILAR
RULES THAT USE THE WORD
"SHALL."
I THINK PEOPLE LIKE THAT ON
THE COMMITTEE.
IN THE PAST, YOU KNOW,
OVERWHELMINGLY IT -- IT
PASSED OVERWHELMINGLY 34-1.
THAT CAUSE IMMEDIATE TO HAVE
SOME PROBLEMS.
AND I THINK IT'S SOMETHING
THE COURT NEEDS TO CONSIDER
IT -- AS WELL THAT THE WHOLE
PERMISSIVE SHALL VERSUS MAY.
THE OTHER ONE ADDRESSED
RECOMMENDATION 33 THE READ
BACK TESTIMONY, WE STRUGGLED
WITH THIS ONE.
NUMBER ONE I THINK THE WAY
THE COMMISSION HAD WORDED IT
THERE WAS A
PRETKEPL -- PRESUMPTION
THERE WOULD BE READ BACK
THEN YOU HAVE TO COME BACK
WITH WAYS IT WOULDN'T.
I THINK THE SUBCOMMITTEE AND
THE COMMITTEE STRUGGLED WITH
TRYING TO FIGURE THAT OUT
UNDER WHAT CIRCUMSTANCES AND
THE VARYING CIRCUITS, YOU
KNOW HOW THEY ARE RECORDING
THIS OVER A LENGTHY TRIAL.
HOW WOULD YOU GO ABOUT DOING
THIS.
AND IT SEEM LIKE IT WAS
SOMETHING THAT WASN'T BROKE.
SO FROM THAT ASPECT OF IT WE
COULDN'T QUITE FIGURE OUT
HOW WE WILL COME UP WITH THE
LIMITING LANGUAGE ABOUT WHEN
YOU DON'T USE IT OR WHEN YOU
DO IT -- USE IT TO THE
SATISFACTION OF EVERYONE.
AND IT LOOKED LIKE IT WAS A
DESTINE FOR BUILT IN SOME
SORT OF APPEAL WITH RESPECT
TO IF YOU DIDN'T DOT YOURIs
AND CROSS YOUR Ts WITH HOW
YOU WOULD SET THAT UP.
THAT'S THE REASON THAT THE
COMMITTEE PASSED ON THAT.
>> OKAY.
>> THANK YOU.
>> JUDGE BATEMAN DID YOU
FINISH ALL OF YOUR?
>> THE CRIMINAL RULES
COMMITTEE -- HAS A LOT OF
DISCUSSION ABOUT THIS.
IN THE SUBCOMMITTEE A RULE
WAS RECOMMENDED THAT
SAID -- BECAUSE THERE
ALREADY IS A RULE 410 THAT
DOES EXIST THAT SAID THE
COURT MAY GIVE ADDITIONAL
INSTRUCTIONS.
BUT WHAT THE SUBCOMMITTEE
RECOMMEND -- RECOMMENDED WAS
AFTER CONSIDERATION OF ANY
REQUEST THE COURT MAY DO IT
IF THE COURT DENIES A
REQUEST, TO HAVE THE
TESTIMONY READ TOO THE
INJURY THE COURT SHOULD
ARTICULATE WHY THAT IS THE
CASE THIS WAS DEFEATED BY A
VOTE OF 9-14.
14-9.
BUT THOSE THAT WERE IN FAVOR
OF IT SUGGESTED THAT THE
LANGUAGE THAT WAS PROPOSED
BY THE SUBCOMMITTEE IS
CONSISTENT WITH THIS COURT'S
CASE IN STATE vs.S LEWIS
WHICH SAYS IT WAS
PERMISSIBLE TO INFORM THE
JUROR -- JURY ABOUT THE
PROCEDURES.
THE COMMITTEE DIDN'T
RECOMMEND THE RULE, BUT WE
DID RECOGNIZE THAT THERE
WAS -- THERE MAY BE
SOME -- THAT AT LEAST ONE OF
THE COURT CASE OUT THERE
SAYING IT WAS PERMISSIBLE.
>> IN OTHER WORDS THE
COMMITTEE WOULD JUST KEEP
WHAT WE'VE GOT.
>> YES.
JUDGE ARTIGLIERE.
THE STANDARD COURT COMMITTEE
WANTS STANDARD.
THEY WANT THAT AVAILABLE TO
DO.
FINAL INSTRUCTION BEFORE
CLOSING WE SUPPORT THAT.
AND WE ESPECIALLY
THING -- THINK THAT WRITTEN
JURY INSTRUCTIONS ARE
IMPORTANT IF YOU ALLOW FINAL
ARGUMENT BEFORE A CLOSING.
BECAUSE THEN YOU COMPLETELY
ALLEVIATE THE ARGUMENT OF
THE LAWYER HAVING THE LAST
WORD.
YOU GIVE THE
WRITTENING -- INSTRUCTION AS
WELL AS ADDITIONAL
INSTRUCTION AFTERWARD.
>> YOU WOULD DO THAT ON A
DISKRELGSNARY BASIS;
CORRECT?
>> I WOULD DO IT ON A
DISCRESS
TPHAEURG -- DISCRESSNARY
BASIS WITH THE JUDGE.
I THINK I WOULD SAY YOU
SHOULD STRONGLY ENCOURAGE
IT.
IT'S SOMETHING WE TEACH
BECAUSE THE SOONER THEY GET
IT THE MORE THE JURY GETS
THAT AT TILE.
LIKE JUDGE ETAN AND JUDGE
BAY -- BATEMAN I GIVE AS
MANY AT THE BEGINNING OF THE
TRIAL NOT JUST AT CLOSING
ARGUMENT.
WE TEACH THAT IT MAY BE A
JUDICIAL EDUCATION THING.
AS FAR AS ANSWERS TO
DELIBERATING QUESTIONS AND
READ BACK OF TESTIMONY OUR
COMMITTEES WILL EVIEW SOME
LANGUAGE.
IT'S NOT A -- ESTABLISHING
STANDARDS FOR WHEN YOU
WOULDN'T AND WOULDN'T DO IT.
IT GIVES MORE FLEXIBILITY.
WE TALK ABOUT THE SAME
THINGS I THINK YOU WOULD
CONSIDER LIKE THE LENGTH OF
THE TESTIMONY AND HOW HARD
IT WOULD BE TO GET THE COPY
AND HOW YOU WILL GIVE IT TO
THE JURY AND SO FORTH.
AS FAR AS POST VERDICT
DISCUSSIONS OR CONCERNS,
THAT'S A MATTER THAT'S
ALREADY HANDLED IN YOUR
APPROVED INSTRUCTION 7.4 AND
MOST JUDGES NOW ARE -- WERE
TAUGHT TO GIVE THEM A
WRITTEN COPY OF IT.
SO THAT THEY'VE GOT -- THEY
KNOW WHO THEY CAN TALK TO
AND NOT TALK AND THEY CAN
ACTUALLY REFER TO IT IF
SOMEONE CALLS THEM UP AND
THEY SAY THE JUDGE TOLD ME I
DIDN'T HAVE TO ANSWER THIS.
THE MOST IMPORTANT THING TO
TO YOU ABOUT IS JUROR
IMPASSE.
OUR COMMITTEE OPPOSES THE
INVOLVEMENT IN THE JUDGE IN
TRYING TO COERCE OR COAX,
EVEN COAX A VERDICT OUT OF
THE JURY.
THERE'S A LONG NUMBER OF
CASES THAT WOULD REALLY
PREVENT US FROM DOING THAT.
THAT'S A VERY TOUCHY AREA.
WE HAVE, HOWEVER, RECENTLY
AND WE SUBMITTED TO YOU A
NEW VERSION IN PLAIN ENGLISH
WHICH WE HOPE WILL BE A
BETTER 7.3 ALLEN KIND OF
CHARGE INSTRUCTION WHICH IS
IN YOUR MATERIALS.
WE SUBMIT THAT.
WE KIND OF NEED TO KNOW
WHETHER YOU WANT US TO GO TO
THE PUBLIC ROUTE ON THAT OR
WHETHER IT'S OKAY TO GO
THROUGH THIS PROCESS ON IT.
WE HAVE SUBMITTED TO YOU AND
IT'S BEEN SENT OUT.
OKAY.
THANK YOU VERY MUCH.
JUDGE ETAN, ANY FINAL
COMMENTS ON ANY OF THESE?
>> WE ARE GIVING YOU UP AND
DOWN WITH THE NEW KNEES.
I HOPE WE HAVEN'T IMPOSED ON
YOU TOO MUCH.
GOOD, GOOD, GOOD.
IN CONCLUSION ON BEHALF OF
THE ENTIRE COURT, LET ME
THANK ALL OF YOU FOR YOUR
HARD WORK AND EFFORTS ON
THIS.
YOU KNOW, AS WE LOOK OUT WE
SEE THE FACES THAT WE KNOW
DO THE HARD WORK.
AND WE THANK ALL OF YOU.
WE KNOW WHO WE CAN
COUNT -- COUNT ON AND THE
PEOPLE OF FLORIDA ARE
ENDEBTED TO YOUR.
EACH DAY YOU TRY TO MAKE
THIS A BETTER SYSTEM.
THAT'S WHAT THIS IS ALL
ABOUT.
YOU'VE COME FROM YOUR
PRACTICES AND COURTROOMS AND
COME FROM ALL OVER THE SAID.
WE GREATLY APPRECIATE
EVERYTHING THAT YOU DO FOR
IT -- FOR US.
WE WILL CONCLUDE THE FIRST
CASE.
AND MOVE TO THE SECOND.
AND MOVE TO OUR SECOND CASE.
OR THE THIRD CASE I GUESS IS
WHAT IT WILL BE.
THANK YOU VERY MUCH.
THE NEXT CASE ON OUR
CALENDAR THIS MORNING IS
SPEEDWAY SUPERAMERICA vs.
DUPONT.
THEY DID SIGN IN,
MR. MARSHAL; CORRECT?
>> COUNSEL FOR THE THIRD
CASE DID SIGN IN.
WE WILL TAKE A SHORT BREAK.
SHORTLY CREST AND SEE IF YOU
CAN LOCATE COUNSEL ON THE
THIRD CASE.
PLEASE.