The Juror's Need to Know vs. The Constitutional Right to a Fair Trial
Dickinson Law Review
The right to a fair trial is a guarantee so fundamental that it was specifically accounted for by the Constitution itself. Even prior to becoming an enumerated concern of the nation's charter, the right to a fair trial was well-established as a norm of ordered liberty. Consistent with that status, Justice Frankfurter observed that "the fair administration of justice is one of the chief tests of a true democracy."' Modern perimeters of the right to a fair trial primarily are a function of the judiciary's power "to say what the law is." Especially over the course of the twentieth century, as individual rights and liberties have commanded increasing attention from the Supreme Court, the right to a fair trial has developed an increasingly rich and complex history. The Court itself has "start[ed] with the premise that the right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government." Critical to the reality of a fair trial, therefore, is management of the process itself. An extensive collection of rules and decisions concerning access, evidence, procedure, availability of counsel, standards of review," questions of contempt" and other issues comprises the law as relevant to fair trial interests. Ordinarily, the right to a fair trial is viewed in relation to a significant competing interest. From the necessary balancing that results, the tension between fair trial imperatives and rival constitutional or other interests is resolved. Analysis is more complicated when uncertainty exists with respect to whether a practice facilitates or impairs fairness of process. Typifying evaluative difficulty is the question of juror note-taking and juror-questioning. Advocates of such practice maintain that increased jury participation would maintain our Democratic tradition of citizen participation and improve the accuracy of the decision-making process, thereby enhancing the credibility of the jury and legitimizing the verdict. This theory of juror responsibility can be viewed as mandated by the due process clause which would serve to avoid erroneous jury decision-making. Critics complain that jury participation precludes their role as an independent fact-finder and is inherently a denial of due process and the right to a fair trial. Irrespective of the ongoing debate, the practical result is that litigants may lose everything they own. For example, consider if a bank and large developer convinced a litigant to take out a loan to invest the proceeds in a new strip mall. The market soured, and the same bank and large developer that assured the litigant that her investment was safe, later foreclosed on everything she owned. She decided to make a multiple court claim against the bank and developer. After two years of discovery and two failed settlement discussions, the case has just been tried, and today the jury gets instructions and begins deliberation. The jury must somehow digest and synthesize two weeks of testimony about promissory notes and deception. Looking at the jury as they are about to determine the course of a lifetime, the litigant and her attorney must wonder how it is possible for the jury to make its decision based on an educated review of the testimony. The jurors sat through sixty hours of testimony, most of it complex, some of it subtle. Not once were the jurors allowed to ask a question of any witness or to take notes during the trial. As another illustration, consider a drug freighter trial underway in the criminal courthouse. Twenty-seven Chilean crew men and one passenger fill five rows in the spectators' gallery. They are wearing crisp new white and light blue shirts, they sit watching the trial while each man wears headphones piping a simultaneous spanish translation. Their lawyers, twenty-eight in number hired by the ships owners, sit elbow to elbow and are heard to comment that "this is ridiculous" and "this is a nightmare." The defendants are comprised of the entire crew of the five-hundred foot freighter and one man who claims to be an indigent columbian stow away. The ship was seized by a Coast Guard cutter which was on patrol to interdict Haitians heading for the United States. Authorities found more than five tons of cocaine valued at 60,000,000 hidden in the cargo of powdered zinc. It is said to be one of the largest maritime cocaine seizures in U.S. history. The Coast Guard arrested everyone aboard charging them with possession with intent to distribute cocaine, conspiracy and attempted importation of drugs. The trial is expected to last a minimum of eight weeks. Each of the twenty-eight defense lawyers is entitled to cross-examine each witness, each cross-examination relating to different defendants in different charges. There are no two defendants against whom the evidence is the same other than the fact they were on the boat. How are jurors suppose to keep each of the sets of facts separate and give each defendant his own determination of guilt or innocence? The constitution guarantees each defendant the right to have the jury consider only the evidence specifically against him. Juror non-participation serves as more than a technicality or convenience. Because jurors generally are not allowed to ask questions of witnesses in the American legal system, the quality of jury deliberations is suspect. This is even more serious given the complexities and subtleties in the evidence of complex criminal cases and civil law suits.16 The integrity of one of the most important components of American jurisprudential theory - the jury - suffers because jurors possess no rational means of developing the evidence on their own in order to better understand and methodically analyze the evidence as a means of reaching a just verdict. In adversary proceedings, courts must balance the benefits and prejudices of trial practices and procedures among attorney, witness, litigants, juror and judicial system, in the search for truth. This article examines the jurisprudential question of whether jurors should be permitted to ask questions of witnesses, and take notes during a trial. Throughout, the article balances practical considerations with constitutional requirements and suggests that juror participation enhances a more rational and just decision-making process.
Leonard Pertnoy, The Juror's Need to Know vs. the Constitutional Right to a Fair Trial, 97 DICK. L. REV. 627 (1993).