High court allows questions from jurors

CARSON CITY -- The Nevada Supreme Court has given the green light to allowing jurors in criminal cases to submit questions for witnesses.

The court called it "an innovation that can significantly enhance the truth-seeking function of the trial process." It added, however, that district judges must keep a tight rein on the questions to avoid turning the trial into "inquisitorial process."

The Nevada precedent-setting case involved Eulogio Flores, convicted of robbery with a deadly weapon and attempted murder in the robbery and shooting of a cab driver in Las Vegas.

Before the presentation of evidence at the trial, District Judge Mark Gibbons instructed jurors to write their unanswered questions on a piece of paper and pass them to the bailiff without disturbing the proceedings.

During a recess, Gibbons reviewed the questions and allowed objections of the lawyers. Gibbons decided several jury questions were admissible. The lawyers then asked the witnesses the questions.

This is a procedure permitted in many states. The high court said "we welcome this opportunity to condone the practice" in Nevada.

The benefits, the court said, include increased juror attentiveness; the potential for jurors to more fully understand the evidence; the opportunity for trial attorneys to understand the thoughts of the jurors and their perception of the case weaknesses; and greater juror satisfaction regarding their role in the trial.

Defense lawyers said this jury questioning compromised Flores' right to a fair trial. The tenor of the questions asked showed the jury did not have an open mind. One question centered on the right of the defendant to remain silent after his arrest. Another involved whether Flores had any scars or cuts to show he was in a fight with the victim.

The lawyers suggested the Supreme Court overturn the guilty verdict.

The court acknowledged there could be drawbacks to the decision saying jurors may attach greater importance to the evidence elicited from their questions and the questioning process could turn adversarial.

"Acting as inquisitors, jurors may stray from their prescribed role as neutral fact-finders and prematurely evaluate the evidence," the court said.

The high court added there's the danger attorneys may not object to the questions of jurors to avoid offending them. There also is concern the government may be able to prove its case by juror-initiated evidence.

But the court, in its unanimous decision, said, "We hold that allowing juror-inspired questions in a criminal case is not prejudicial per se, but is a matter committed to the sound discretion of the trial court."

To avoid possible prejudice, the court laid down some guidelines.

It said district judges must make sure the questions are factual and designed to clarify information already presented. Questions must be in writing.

The trial lawyers must have an opportunity to object to the questions outside the presence of the jury; the determination if these questions are admissible must also be made outside the presence of the jury; attorneys are permitted to ask follow-up questions and jurors must be admonished they cannot place undue weight on the responses to their questions.

The court said Gibbons used these safeguards and that was "sufficient to eliminate the risk of prejudice to Flores."

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