Friday, January 8, 1999

Committee’s advice:
Let jurors ask questions

By Lori Tighe


Who knows what "voir dire" means, except for lawyers?

The Latin expression should be thrown out and replaced with English, "jury selection," according to a recommendation in the final report by the Hawaii Committee on Jury Innovations for the 21st Century.

The 28-member committee was scheduled to present findings today to Chief Justice Ronald T.Y. Moon. The Supreme Court may adopt or ignore them.

The most important and controversial recommendation is to allow jurors to ask questions in a trial, said attorney James Kawachika, committee co-chairman and immediate past president of the Hawaii Bar Association.

"I believe it will have the most impact. It's probably the one innovation which will make the jurors an active part of the trial instead of a passive part," Kawachika said. "It makes them a better decision maker."

State public defender Rich Pollack opposed the innovation "for many reasons." The committee narrowly approved the innovation in a 10-to-8 vote.

"There have been many, many problems with it. Many states have banned it. Half the states in the country allow it. But of those who allow it, half strongly urge against it even though they allow it," Pollack said.

"Juror questioning infringes upon defendants' constitutional right to a fair trial," Pollack wrote in the committee's final report.

Juror questioning will lead to appeals based on violation of defendants' constitutional rights, he

blrb The advisory panel split 10-8 on the contentious issue of allowing jurors to ask questions in a trial.said. Some convictions will be reversed due to prejudicial error. Limited resources will be used to handle the increasing appeals and retrials, he added.

But the trial judge will serve as a filter and decide which juror questions are allowed, Kawachika said.

"All juror questions will be funneled into the judge, who can exclude questions. And attorneys can object to the questions," he said.

Another important innovation would allow jurors to take notes, which Pollack favors.

"Note taking is already happening in Hawaii. I think it's a good idea. You and I take notes as professionals, so why shouldn't jurors?"

In fact, jurors have been taking notes and asking questions in Hawaii in a pilot project among agreeable judges to provide feedback to the committee on how the innovations work, said Michael Broderick, administrative director of the courts.

Broderick and Committee Co-Chairman Judge Shackley Raffetto of Maui traveled to Arizona prior to the committee formation and gathered evidence on that state's experience with similar jury innovations.

"We were encouraged and excited because the innovations were working very well," Broderick said. "We spoke with defense attorneys and prosecutors, judges and jurors who said they had concerns prior to the innovations but found them to be very workable."

Arizona jurors said they felt more effective and productive by taking notes and asking questions, Broderick said.

The committee received public feedback through written comments, a live call-in television program, and surveys of judges, attorneys and jurors.

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