The Standard-Examiner received the following letter to the editor:
Why can't jurors ask questions of a defendant in Utah? It seems perfectly reasonable and logical to me. Whenever you see a blown trial where you see the defendant get away with a serious crime, the jurors often say that a particular issue or question was never addressed or answered. It seems to me that the evil cult of lawyers is reluctant to relinquish control to average people.
Any attorneys brave enough to answer this question?
-- Kimball Vance
The editor forwarded the email to me, I suppose believing that I was brave enough to answer. The quick answer to Mr. Vance is that the Fifth Amendment of the Constitution doesn't allow jurors, prosecutors or defense attorneys to ask a criminal defendant questions in a trial if the defendant doesn't want to testify.
You would need to repeal the Fifth Amendment of the Constitution to allow questions of the accused. Not an evil cult of lawyers, but the Founding Fathers are responsible for that one.
I haven't done a column on criminal law, primarily because this is on the business page and I've tried to keep the column somewhat thematically related. Yet, the underlying question from Mr. Vance about how our system creates a sense of justice is important and relevant to both the civil and criminal justice system, where juries are employed. If you don't think juries can have a big impact on business, look at the billion-dollar judgment against Samsung and in favor of Apple.
This month the judge reduced the amount by $450 million because of the jury's misunderstanding of the instructions.
The main concern for any legal system is that it creates a sense of justice for the society it serves. The United States and Utah systems employ juries to make factual determinations in trials. By allowing citizens to determine what actually happened, justice is a direct result of community involvement. Using the community to assist in the administration of justice is a bedrock of our legal system.
Yet, there is a dark side to justice by the community, especially when the community is inflamed by emotion, prejudice or anger. Human judgment is flawed, and decisions made based primarily on emotion can lead to horrific and unjust consequences. Our legal system and rules of evidence have been designed over centuries of trials (and errors) to ensure the best possible result.
Lawyers aren't trying to wrest control from the average person, but rather are the defenders of the rights of average people not to be unfairly treated by prejudice, emotion, anger or an overreaching government. Prosecutors, defense attorneys, plaintiff attorneys and judges are all working to enforce laws and rules that were passed by the people's elected officials to create a quality society.
In Utah, the rules and courts have seen the wisdom in restricting questions directly from jurors. A quick example will show why indiscriminately allowing jurors to ask questions is a very bad idea.
This example requires you to pretend you are the defendant and assume that you have been falsely accused by your worst enemy. Your enemy is testifying, and the juror is allowed to ask a question.
The juror asks your enemy a question that is against all of the rules of evidence. Your attorney must then object to the juror's question and alienate the juror who is responsible for deciding your fate. The juror goes from being an independent decision maker to an active participant in the battle. Allowing free-for-all jury questioning would make courts more like a Monty Python witch trial than a bastion of justice.
The fact is, jurors can submit questions in Utah courts. The questions are submitted in writing and then dealt with by the attorneys and judge without the jury present. If the question is allowed to be asked, it will often come with an admonition from the judge to ensure that the question doesn't unfairly influence the outcome. Justice is the end goal.
As for answering questions sent in as a letter to the editor? There are no restrictions on answering those.
E. Kent Winward is an Ogden attorney. He can be reached at email@example.com or 801-392-8200.