Juror questions.

Regarding "Jury Questions in Criminal Cases: Neutral Arbiters or Active Interrogators?" (February), jurors must never be allowed to ask questions of a witness in a criminal trial. Our system of jurisprudence is predicated on the prosecution having to prove every element of the charge beyond a reasonable doubt. A questioning juror already has that reasonable doubt, and (s)he is using the question to remove that doubt. The only purpose in asking a question is to fill in a hole in the evidence, clearly not a juror's function. In fact, there is an instruction saying that the jurors must look only to the evidence presented to decide upon their verdict. Allowing jurors to ask questions flies in the face of that instruction and the root of our jurisprudence upon which that instruction is based. Jurors want to hear the defendant testify; it's hard enough to get the jurors to accept a nontestifying defendant with neutral detachment. Let there be a not guilty verdict if the prosecution doesn't do its job of proving each element beyond a reasonable doubt. The jury must not be allowed to cure the prosecution's defect.

Allowing questions may force the defense to put on witnesses or even to present its case despite the strategy not to do so, perhaps resulting in a change of closing argument order, something very substantial to the defense. There's nothing wrong with procedures rising to the level of substantive importance. A juror's question may scuttle the defense's strategy. A judge saying that (s)he will look to every possible objection before allowing a juror's question places the defense in an unenviable position. The defense attorney should never get into an argument with the judge. Even if the discussion about the proposed question results in the judge changing his/her mind and not allowing the question, such argument is always held out of the hearing of the jury. The jury returns and is informed that the question will not be allowed. Not hearing the legal argument (and the jury should never be allowed to hear this argument) only serves to confuse the jurors. First the question is allowed; then, after "secret" argument, it is not. If the judge should not allow the question, usually no reason is given, just the result. This further confuses the jury, because there are probably other jurors who would like to hear the answer to the question. Furthermore, some other juror may try to ask the same question another way to try to get an answer.

Jurors' questions can serve only to put the defendant at a disadvantage. What is happening is that the court is creating a rule of evidence by allowing questions from people unknown to each party. Saying that jurors are there "to discern the truth" only perpetuates the myth that each side will present its full case, both good and bad. In a criminal trial, nothing could be farther from reality. Each side presents its case to achieve its goal. No procedure should put either party at a disadvantage.

The Supreme Court should promulgate a definitive rule prohibiting questions from jurors. Only then will both sides be on equal footing.

PAUL S. CHERRY

Sarasota

RELATED ARTICLE: Oath of admission to the Florida bar.

The general principles which should ever control the lawyer in the practice of the legal profession are clearly set forth in the following oath of admission to the Bar, which the lawyer is sworn on admission to obey and for the willful violation to which disbarment may be had.

"I do solemnly swear:

"I will support the Constitution of the United States and the Constitution of the State of Florida;

"I will maintain the respect due to courts of justice and judicial officers;

"I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land;

"I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;

"I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no compensation in connection with their business except from them or with their knowledge and approval;

"I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;

"I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone's cause for lucre or malice. So help me God."