Colorado first state to make jury question a rule

Originally Published: June 16, 2004
Associated Press

DENVER -- When NBA star Kobe Bryant goes on trial later this year, jurors will be allowed to submit questions for witnesses in the sexual assault case under what is believed to be the first rule of its kind.

The possibility of juror questions in criminal cases is both exciting and scary to judges and attorneys.

"I'm hopeful this will be beneficial, even though I'm nervous about this. The reality is, no one knows how this will work," said Scott Robinson, a Denver criminal defense attorney.

Jurors have been allowed to ask questions in Colorado civil cases for the past five years, but attorneys say much more is at stake in criminal cases. The rule takes effect statewide July 1.

State Supreme Court Justice Rebecca Love-Kourlis, who headed a panel that studied the issue, said other states have tried the jury question option in various forms but Colorado is the first to make it a rule.

David Graeven, the president of Trial Behavior Consulting in San Francisco, said other states are experimenting with ways to involve jurors but agreed Colorado has the nation's first rule on jury questions.

Most attorneys would rather know what jurors are thinking than guess, Graeven said Wednesday. Most now have to rely on mock juries or shadow jurors who sit in on trials and provide attorneys with feedback.

"I want to know what's going on," Graeven said.

Colorado judges will be trained in how to handle the new rule and will be able to bar questions in cases involving suppressed evidence and other potentially thorny legal issues. Most are expected to give jurors a chance to participate.

"Jurors for the most part have been responsible. They take the process and their oaths seriously," Love-Kourlis said.

The rule was adopted after a pilot program ended in 2002 with mixed results.

Jurors in the study said they felt more involved in the trial and the questioned removed some of the doubt in their verdicts. Attorneys said it gave them more insight into the jury, but also opened up the potential for new challenges. Some jurors acted like junior Perry Masons.

"We had a juror who decided he could do a better job than the DA if given the opportunity. He was sending questions one after another," one judge complained. "The bailiff would bring me one and he would have another ready when she got back over to the jury box."

The judge said the questions stopped after he told the jurors they should give attorneys a chance to work and ask if something still seemed unanswered. The study said the judge's experience was unusual.

Other jurors asked about prior offenses, which are often not allowed as evidence, and one wanted to ask a witness if he thought the defendant was guilty.

Mike Hodges, president of the Colorado Trial Lawyers Association, said courts have been reluctant to expand jury questions to criminal cases.

Money from a civil case settlement can be returned, he said, but it is impossible to give back time to someone who has been unjustly jailed.

Hodges said he has been impressed with juror questions. In one case, a juror wanted to know why a police officer did not interview every witness to a traffic accident and seemed satisfied when the officer explained he had all the witnesses he needed.

How jury questioning will pan out in the Bryant case is unknown. State District Judge Terry Ruckriegle will have wide latitude in deciding what questions are relevant from a jury that will be asked to decide if the Los Angeles Lakers star raped a 19-year-old resort worker last year.

Bryant, 25, has pleaded not guilty to felony sexual assault, saying the two had consensual sex. If convicted, he faces four years to life in prison, 20 years to life on probation and a fine up to $750,000.

Attorneys for Bryant and the Eagle County district attorney's office did not return calls seeking comment.

Robinson, who is familiar with the Bryant case, said juror questions could be a double-edged sword for Bryant's defense team.

Questions from jurors would allow his attorneys to curry favor by showing they are attentive to their concerns, he said. Yet jurors could also open up issues the defense would rather avoid.

Love-Kourlis said Ruckriegle could bar juror questions since the case involves suppressed evidence, but the new rule will apply to all cases, including Bryant's. She said it is not fair to throw jurors into a system where they are asked to make crucial decisions without giving them an opportunity to ask questions.

"I think the benefits are worth the risk," she said. "In individual cases, there may be a problem that allows a conviction to be overturned. For us not to implement it, I think, would not be appropriate."


Copyright 2004 by The Associated Press

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