Unsteady progress. That’s the most charitable way to describe the halfway measures taken toward public understanding of the court system by the California Judicial Council over the last 15 years.
But policy-makers for the courts have just made one of their best moves via a largely unpublicized decision that might actually help jurors understand many of the cases they must decide. From now on, jurors will not have to depend on lawyers to ask all the questions in court, but will be able to ask a few of their own. Sometimes.
Like most other populist legal rule changes, this one has a caveat attached: It will only be done when judges want it.
This makes it similar to the early-1990s rule change allowing television and still cameras into courtrooms - where judges approve. That rule change created a major increase in public understanding of courts, with the fully televised O.J. Simpson criminal trial inadvertently allowing the public to see what’s often wrong with the criminal justice system.
That trial featured grandstanding lawyers, jurors who almost certainly did not review all the evidence, an overmatched judge, a celebrity defendant and a verdict the vast majority of Americans still feel was dead wrong.
One result was that many other judges, fearful their own peccadilloes might be exposed, afterward refused to allow courtroom cameras.
Will juror questions suffer a similar fate? And what might have happened in the Simpson trial if jurors had been permitted to ask their own questions? Would the verdict have been different if one or two of the skeptical original jurors (several dropped off during the long trial) had asked expert witnesses on issues like DNA how much the Simpson defense was paying them for their testimony? What if one of the jurors had inquired how often those witnesses side with the prosecution?
Those were questions that lawyers on both sides assiduously avoided in that trial, as they do in many. In fact, it is a legal truism that attorneys take a big risk if they ask a question to which they don’t already know the answer. But impartial jurors seeking only information to help themselves decide a tough case will not have to worry about that. They can’t lose a case; but they can emerge feeling like winners if they have reason to believe they get their verdict right.
Juror questions in a televised trial, though, could expose attorneys as either incompetent or dishonest. If that happens, will judges allow the questions to continue? All of them, after all, are former lawyers and many will eventually go back to private practice.
While they’re constructive, then, the moves toward opening up the courtroom process are insufficiently definite. They give judges far too much leeway.
For the state Judicial Council to recommend that judges allow jurors to submit written questions is not enough; the judges and legislators on the council ought to be mandating the practice in every California jury trial, without exception.
Another change in the category of slow and unsteady progress is a new recommendation that judges “encourage” lawyers in complex civil cases to provide notebooks of trial related materials to all jurors. This is also not mandatory, as it should be.
Yet another new rule allows judges to let lawyers make their opening statements about cases to an entire jury panel, before the voir dire process that selects the actual jury. This is intended to engage jurors in cases before recalcitrant panel members opt out by answering questions in ways guaranteed to get them excused from the jury.
The guiding principle here is that the more jurors know about a case and the sooner they learn it, the better job they can do.
What the judicial council, led by state Chief Justice Ronald George, has done amounts to progress, but it is only halting progress. That’s because entirely too much jurisdiction remains in the hands of judges, who are usually political appointees and often former politicians themselves.
As long as the rules let judges protect themselves and their flaws from public exposure, the Judicial Council will never reach its laudable goal of opening the courts to public scrutiny and understanding.