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Supreme Court to decide whether jurors can ask questions at trials
By Elizabeth Stawicki, Minnesota Public Radio
October 4, 2001
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Typically attorneys question witnesses during trials in Minnesota. But in Blue Earth County two years ago, a Mankato judge invited jurors to question the witnesses and even the man on trial. The state Supreme Court heard arguments about whether allowing jurors to ask questions violates a defendant's right to a fair trial.
Listen to the audio from the Supreme Court debate.

Christopher Cain of Mankato, the attorney representing that state, favors jurors asking questions. His exchange is with Justice Russell Anderson.
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Arguing against jurors asking questions was Theodora Gaitas. She answered questions posed by Justice Ed Stringer.
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A jury convicted Gerard Costello on several DWI-related charges in September 1999. During his trial, Judge Norbert Smith invited jurors to print their questions for witnesses anonymously on pieces of paper.

Arguing for Costello before the Minnesota Supreme Court, attorney Theodora Gaitas said allowing jurors to move out of their roles from impartial observers to participants, deprived Costello of his constitutional right to an impartial jury.

"Once you instruct a jury that they can take on this new role of questioning witnesses as inquisitors and not merely neutral and passive fact-finders, the right to a impartial jury is necessarily implicated," she said. Justice Ed Stringer: "Why does the fact that a juror has a question - maybe there's a gap in the facts," noted Justice Ed Stringer. "Why should it be implied that a juror is partial?"

"I think it's a subtle thing," said Gaitas. "It's not going to be something that necessarily appears on the record as blatant advocacy for one side or another. But once you tell a jury that they're allowed to ask questions, they begin to view the evidence in a more evaluative sort of way."

There's little data available on how juror questioning may influence a trial. That's due in part to the secrecy of juror deliberations. Still, most states allow the practice to some degree. Minnesota would join only two other states if the court rules against juror questions in any circumstance.

The attorney who prosecuted the Costello case, Christopher Cain says allowing jurors to ask questions clears up confusion. "It helps the attorneys determine what the jurors are thinking as the case evolves," he argued.

The statement that attorneys are using juror questions to flag weaknesses or strengths in their cases, drew a response from Justice Alan Page.

"It seems to me that's changed the dynamic of the trial right there," Page said. "It may well change the extent that maybe the prosecutor was asleep at the switch and was going to leave some essential element out. All of a sudden you have the juror participating or helping the state meet its burden."

"You could look at it that way," Cain acknowledged. "It's the state's position that 50 percent of the time it's going to assist the defense as well. It does change the dynamics."

"But the defense doesn't have any obligation to prove anything," said Page.

In Costello's case, Judge Smith allowed the prosecutor and defense attorneys to review the juror questions before they were asked of the witness. Costello's attorney objected, but the final decision was Judge Smith's. The Justices took the case under advisement and could rule in a few months.