Why Shouldn't Jurors Be Able to Question Witnesses? Ep. 5.259

hello welcome once again the lady knows law I'm Steve Leto sinner talk more about juries I have done a few videos recently about juries you know why you might not have been selected for a jury I talked about grand juries I talked about jury nullification another common question go back and look I did a video not too long ago about that and I've talked about a bunch of different things about how to select juries and you know what lawyers are looking for when they pick juries and so on but I've had quite a few people ask me uh some more specific follow-up questions one question I got asked us see how come they don't let the jurors ask questions during the trial itself and it's an interesting thing because some courts do allow it and I've actually seen a court allow it before and it's it's one of those things that that attorneys hate and and I know a lot of people say Oh Steve just because the attorneys hate it doesn't mean that it shouldn't happen I mean yeah we've hooked a cater to attorneys everywhere do we well here's the thing um number one juries hated but I think most judges recognize that if they actually said we're never trial okay it's gonna go on longer than we expect as they always do every single witness it gets up there gets a direct examination a cross-examination or redirect or recross net and go on for a while and then at the very end somebody goes Your Honor that's all I've got somebody else's that's all I've got can you imagine what happens to the judge turns the jury goes you guys got any questions and you can see why that would simply lengthen things and nobody is in favor of lengthening trials and ironically one of the people that you think would not want to lengthen trial as a juror but of course you know how it is you'd be one of twelve people you'd be going come on guys that's that's that's let's end this right now and the judge goes do you guys have any questions and a juror in front he's gonna raise his hand go yeah I got a three-part question with four subparts each how should I address these your honor so so that right there is him is a problem but the bigger problem is that letting the jurors ask questions suggests that the jurors actually know what the trial is all about and you might say Oh Steve isn't that their job no no because here's a here's a deal you select a jury and during jury selection the jury will be told here's what the trials about let me told a thumbnail sketch it's a car accident case where someone for personal injuries they're suing the driver of the other car the driver of the other car says they're not at fault because they were stopped at whatever and and they'll be told this little two or three sentence vignette of what the case is all about and and by the way in case you're curious 99 times out of 100 that the two sides have gotten together at the judge's instruction before the trial started and they were told you guys create a statement of the case that you can both agree upon and and they can usually do it you know you know this is a lemon law case plaintiff claims the car is defective defendant claims it's not yeah that's boom there you go but here's the thing even though both sides will give opening statements where they'll say here's what we're going to prove we're gonna have witnesses who say this witnesses who say that we're going to show you documents that prove this documents approve that police reports photographs whatever accident reconstructions whatever it is the the jury is told that you know here's the roadmap of the case and the other side says no no here's here's the roadmap of the case if I put my first witness on the stand and walk them through the testimony and this head cross examines them I can imagine many situations where a juror might go wait a second I start asking questions because they want to know where the rest of this case is coming from and and the attorneys know what they're gonna put into evidence and they know if something's missing so the idea that a juror is gonna spot a question that somebody missed despite the fact has two attorneys up there working on this and a judge is overseeing this whole thing it's not likely they're gonna actually spot something that needs to be brought out at that time in fact they're probably wrong but there's actually a bigger concern and I'm and I purposely put this last I want to put a couple good ideas out there first so the people who object to this will understand it was other reasons also but there is an art there is an art to doing the direct examination of a witness you put a witness on the stand and this is my witness I've talked this witness before they put them on the stand if it's my client we are both intimately familiar with this case we both are invested in this case we spent a lot of time working on this and so my direct examination of my client for instance okay if I put my client on my client tells the story trust me I'm not leaving anything out now you say well Steve you might leave out the bad stuff that's what the other side does they get up and they do a cross-examination okay and they're gonna ask the bad stuff they're gonna they're gonna poke around and if it's if it's admissible they're gonna get it out of this person right that's what they do and that one of that thing I just mentioned right there's one of the problems what if somebody in the jury goes I got a question the judge allows the question what's the question have you ever been convicted of a felony if they have been asked by an attorney you get an objections that's not a proper question okay there's a problem with that question I'm not gonna get into the problem of the question but there are questions that attorneys know that they cannot ask a juror wouldn't know that and so if both sides now object say you're honest an improper question can you imagine a judge telling a juror you have to disregard your own question because you can be told to disregard an attorneys question but can you actually disregard one that was gnawing at you to the point where you raised your hand and asked it but second of all and here's the crazy thing there's also an art to a cross-examination okay and I'm talking about there's a book behind me I always turn the wrong way there's a book behind me called trial techniques by a guy named mallet and maow it's book is the Bible of trial techniques the guy explains how to do a trial and in it he has a chapter on cross-examination and there are two things about cross-examination you have to teach someone who's gonna do trial work and the number one of course is you do not ask open-ended questions you ask on cross examination questions that are so closed-ended that you don't need the witness to do anything but admit that what you just said is correct isn't it true your driver's license was revoked in 2016 isn't that true that statements true the only correct answer is yes you can try to squirm out of it but you have to admit it's true yes it's true okay you got me but you don't ask a question tell me about your driver's license what's there to tell no no no cross examination is laser-focused point where you are telling the witness here's the answer you're going to give and I know that because I have the right to ask closed-ended questions on cross-examination I know what the answers to these questions are and I'm going to ask all the correct questions if I do this right we always know the saying don't ask a question you don't know the answer to on cross-examination so what I'm getting at here is a proper cross-examination is laid out by a good trial attorney literally question by question or point by point so I know every question I'm going to ask and I'm gonna tell you something right now that if there's a list of questions that I want the answers to get the jury on there's always one missing question I do not ask the last question and that's something mount talks about I didn't invent that it's an old saying goes way way back it's not as well-known among non attorneys as the saying don't ask the questions don't want the answer to but you do not ask the last question see you my CC what are you talking about yes exactly let's suppose we have a case where a person testifies and they said you know something I heard a fight break out and so I add my mind my attention was drawn to this fight these two people were in and that's of course the subject matter of this lawsuit and the defendant punched the plaintiff in the face and so then the plaintiff then was using self-defense when he defended himself and and this witness goes on to describe this fight and so now I am cross-examination I read the police report and this witness gave a statement to the police I'm making a factor for a point so this witness gave a statement the police and said I heard this fight break out and I was standing at this corner of this intersection my attention was drawn to this fight and then here's what happened and I'm looking at the police report before I go to court and I realize that where the witness was standing the witness could not have seen either the plaintiff or the defendant the fight was taking place around the corner they heard the fight break out and the police report says I heard the fight break out so in cross-examination I would have listened very closely to the direct to see if this person ever said they saw anything let's assume they didn't let's assume they stuck there the police report verbatim I heard the fight break out and then plain to punch to defend at the face okay on cross-examination my first question would be you spoke to police did you not obviously and you gave them a report and a written statement correct by the way notice I don't need to get the answers disease because these these I'm giving you the answers on cross-examination all you do it all you're doing is affirming like my version of your testimony and the police report has your signature on let's assume that they actually do sign your statement it has your signature on it correct and you spoke to the police officer that sergeant whoever it was somebody took your statement and they wrote it down as you were talking them yes okay and after they wrote it down you reviewed it and read it correct okay and after you reviewed it for accuracy you signed it correct okay and again don't I'm not getting the admissible of the police report but I'm simply saying let's suppose as a statement I say by the way here's a statement and there's a signature down here that's your signature correct that is your signature right okay that's your soon as you and you testified a little while ago about the sequence of events and you are under oath yes okay and you told the truth correct okay and you also told the truth when you spoke the police officer correct and when the police officer wrote down your statement the statement was true but it was also recorded accurately correct okay and everything that you've testified today is complete because you were sworn to tell the truth the whole truth and nothing but true so you have included everything as truth and you've not you've not left anything out correct okay that point you might actually say no further questions turn around sit down now I'm hoping you realize what I did there I did not ask so you heard the fight but you didn't see it dead ja because as soon as I say that he's gonna go oh actually yeah yeah I did I did I did I saw it I saw it now I gotta back up and go wait a second you didn't say you saw it you didn't testify you saw obviously the guy did to see it right but the point is that if I really want to get this across to a jury okay I'm gonna ask all the setup questions like I'm teeing up a teeing up a let's put a baseball on a tee a stand like a little kids t-ball okay I'm teeing this thing up but it's a size of an ostrich egg and I got a sledgehammer and I'm teeing it up I don't swing yet okay I stop say Your Honor no further questions now my opposing counsel might not know I'm getting it or you might know I'm getting yet but he also knows probably that his client didn't actually see anything or his witness didn't see anything okay his witness heard something and somehow got inserted into this story so if there's a juror over here who thinks they're Perry Mason or the female equivalent they might say excuse me I have a question I have a question yes yes little Timmy what's your question well he asked a lot of questions about the fight and mr. Leto cross-examined them but he seems to have missed the most important question can I ask the case the witness did you see the fight and of course the witness and ago oh yeah I saw the fight witness didn't see the fight there's a witness had seen the fight they would have told the cop they would have put it the report there were two testified to it okay so one of the things that rookie attorneys do in trials is they as they as they can't help they ask all these questions and they see it's going perfectly down the lane it's it's it's its hook and right between the you know right between the one to the 3-pin okay it's it's hooking perfectly and they can't turn away from it and remind themselves okay we're to pick that up during closing argument because if I can do that right end the exam and say you testified truthfully your report was truthful you reviewed it you told the cop set we're good right there you go boom no further questions during my closing argument I'm gonna stand up and go you remember the key witness he said he heard a fight but he never said he saw it you know why he didn't see it he swore under oath that he told you guys the full story whole truth nothing extra to help him god police report makes no mention nothing here about seeing anything he heard a fight and he somehow wants you to believe that he can hear who punched who first around a corner okay is this hearing that good or is he of x-ray vision but the point is he couldn't see it you actually have to disregard everything he testified to other than the fact that he heard a fight break out but since he didn't see it you can disregard everything else his testimony was worthless okay no I'm not saying that that's gonna fly with his rager he might go yeah you know you know but the point is that there's an art to extracting that key piece of evidence and and and like I said putting it on the stand lining it up for the swing and hitting it and the last thing you want is one juror who goes I think you forgot the good question can I ask it did you see the fight or did you just hear the fight so that's that's the number one reason that attorneys don't want jurors asking questions but before I said pointed out that number one you don't asking bad questions or incorrect questions and admissible questions or inappropriate questions because they don't know which is which and you can't blame them they're just jurors it's not their job to know the law and then also no one liked the case to get dragged out longer trust me the attorneys are putting in what they think is necessary the judge is overseeing the whole thing you don't need backseat anything from the group of people in the jury box no offense okay I love jurors they have a job to do but we don't need them asking questions somebody else they asked hey Steve how come the jurors when they go back in the chambers or a jury deliberation room they can't like look up the law or they can't run tests and and there's a reason for that number one is if I said by the way the laws and these books behind you which it is thousands of pages of laws back there thousands literally and I've actually had people call my office they say hey Steve I think of a lemon law case and I go why and they cite some law it's got nothing to do the lemon law I say well you know Michigan's lemon law is at mcl 257 1401 they go but I found this other section of the law over here and I'm like that's got nothing to do with the lemon law and they go well let me read you one sentence out of it and go doesn't matter that sentence has got nothing to do with lemon locks that sentence is in the wrong law so that's that's that as for experiments believe it or not I've had I've heard stories and there's a famous case here in Michigan and I don't know if one about appeal or not yet but where a guy was accused of killing his wife and and the allegation was that he had karate kicked her because he had taken some martial arts classes somewhere along line and back in the chambers a couple of jurors attempted karate kicking each other which was ironic because none of them had taken karate and so the first thing I I heard you know in my head when I read that was oh there's an appeal for you because I'm not sure if anybody had demonstrated a karate kick in the trial was it a front kick side kick hook kick roundhouse kick back kick spinning hook kick straight hook kick jumping flying side kick jumping flying hook kick a spinning flying hook kick okay there's a variety of karate kicks and the idea that someone who's just watched a couple episodes of kung fu and maybe three Bruce Lee movies is going to attempt a karate kick to see if it would work okay the jury is told you consider what happened in the courtroom and then go back into your chambers and deliberate or back into your room and deliberate deliberate is discuss argue debate talk about and try to come to a consensus but it does not go back and experiment and try doing goofy stuff to see if you can reach eight one sides theory of this case and and I've heard other examples of people going back and and and trying to you know can we see the evidence and so they get a piece the evidence and they start like messing with it to see if they can get it to work and that's not you know you look at the evidence you can look at the evidence but you don't tamper with the evidence you know and certainly you don't conduct experiments to see if you can recreate something so those are the answers to the questions about the jurors but there are some courts that will allow them to ask questions quite off what they'll do is they'll say right the question down hand at the judge and the judge will look at and decide if it can be asked that rules up some of the problems but it does not rule out the issue with respect to the strategy of the guy who conducts or gal who conducts a really good cross-examination and has it ruined by somebody asking the last question which Mao it says is a no-no do not ask the last question trust me a question comfortable oh let's talk another bye you

Channel: Steve Lehto

Views: 13,669

Rating: 4.8794837 out of 5

Keywords: lemon law, michigan lemon law, lemon law attorney, lemon law lawyer, http://www.lehtoslaw.com

Id: cdFzl0TDa4E

Length: 18min 58sec (1138 seconds)

Published: Mon May 20 2019