Oct 10, 2010

Oakland Circuit Judge Potts Fosters Jury Innovation

Judge Wendy Potts has been conducting an interesting pilot program of the jury process in Oakland Circuit trials.  She maintains the only courtroom in one of Michigan’s busiest venues where jurors are encouraged to submit written questions to witnesses, take notes during the trial, and discuss the case during their morning and mid-afternoon breaks.

Once the jury is empanelled, each juror is provided a notebook with all the jury instructions and, in civil cases, a set of stipulated trial exhibits for their convenient reference (or distraction) throughout the trial. 

The jurors welcome the opportunity to interact with the input of proofs.  Judge Potts instructs them to avail themselves of the opportunity to submit written questions to witnesses before they are excused.  

These are significant modifications to the “classic” jury trial in Michigan.  In other county trial courts throughout the state, jurors are expressly instructed not to discuss the case with anyone during the trial (which may take several days, even weeks).  In the classic jury trial model, each individual juror is repeatedly instructed to keep the facts of the case to themselves until they retire to the jury room for deliberations with their chosen colleagues.

In Judge Potts’ court, however, jurors are encouraged to take a stab at figuring out just what is really going on by writing out their own questions at the conclusion of examination by the attorneys.  Judge Potts fields the written questions and discusses them with the lawyers in a bench conference to determine whether the question(s) should be posed to the witness.  

This has an obvious effect on how the proofs of the case are submitted to the jury.  Once the attorneys complete their scripted examinations, the jurors have the opportunity to follow-up.

Instead of keeping what they have just seen and heard to themselves for the duration of the trial, they are permitted to discuss the testimony, as it unfolds; including the answers to their own questions. 

No such a thing as a “dumb question”, right… 

On Thursday and Friday of this week, I had the opportunity to sample Judge Potts’ experimental jury trial method in a criminal felony trial.  At least one juror had a question for every witness.  Judge Potts asked the attorneys at the bench whether we wanted the question posed to the witness.  

While I did not mind the (benign yet telling) questions posed by the jurors, it concerned me, as the defense attorney, that the jurors were free to discuss the case while it was being put in by the attorneys' respective examinations.

But would jurors, so encouraged, seek other means of obtaining information about the case? Perhaps they would Google the names of witnesses or the attorneys.  Judge Potts expressly warned them not to do this.

It is in the nature of trial attorneys to want control of the information being submitted to the fact finder.  After all, ours is a results-oriented business.  

In the jury trial that concluded today, my client was acquitted.  It was difficult to tell weather the innovations had any effect on the outcome.



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