AZ jurors are given bigger say in trials

He was hired by the defense to cast doubt on the testimony of Gina Gonzalez, who said that Forde looked like the woman who was present when her husband and daughter were killed.

At least one juror had doubts and asked a question on the topic. Chances are juror No. 13 never would have been able to do so if she had lived elsewhere.

Arizona, Colorado and Indiana are the only states in the nation that give jurors the right to ask questions during criminal trials, according to the National Center for State Courts.

Eleven states prohibit jurors from asking questions, and the other states let individual judges make the decision.

The Forde jury was made up of 16 jurors, including four alternates.

Fourteen of them asked a combined 36 questions; juror No. 13 and two others asked 16 questions between them.

Eventually, Forde was convicted of murder and sentenced to die last week.

Nationally speaking, the topic of jury questions is a controversial one, said Greg Hurley, a knowledge-management analyst for the National Center for State Courts.

Many attorneys and judges don't like the idea because the burden of proof always lies with the state, Hurley said.

Some believe allowing jurors to ask questions relieves the state of that burden to a certain extent, Hurley said. Many would much rather allow the judge to ask follow-up questions if an issue needs to be clarified.

"Jury questions is a relatively new phenomenon that is supposed to enhance jurors' comprehension," Hurley said. "I have the feeling more and more states are moving toward it, but who knows? I guess it's safe to say, though, that states are continuing to talk about it."

Here's the way it works in Pima County: Jurors are told at the beginning of the trial that once a witness is done being questioned, they will be allowed to write out questions on a form. Once all of the questions are gathered, the attorneys meet with the judge to discuss them at the bench. If the question is not prohibited by any rules of evidence, if it's relevant and if it's being asked of the appropriate witness, then it's asked.

The jurors are told that if their questions are not asked, they are not to speculate as to why.

The problem, defense attorney Richard Parrish said, is the jurors will speculate and they will focus on things they ought not to.

"The average person thinks: 'Well, I really wanted to know that. It took me a minute to write it. It's important to me, judge. Why isn't it important to you?' " Parrish said. "To have them cogitating outside the scope of the evidence is wrong."

Deputy Pima County Attorney Susan Eazer said she likes the practice.

Many times, she's had jurors ask questions she wished she'd asked, brought up issues she'd forgotten, or clued her in to areas she needed to reinforce.

"I think (the practice) has resulted in fewer hung juries," Eazer said. "I think issues that might have hung them up before are getting resolved."

Judge Richard Fields, who presides over Pima County Superior Court's criminal bench, also favors jury questions.

"It's amazing how some of the most obvious questions escape the notice of everyone involved in the process," Fields said. "They usually result in some sort of constructive progress."

Fields estimated that 90 percent of the questions submitted are asked.

Eazer agreed, but she said she would like jurors to be told a little more about why some questions can't be asked.

For example, most jurors probably don't know that leading questions usually aren't allowed or that prosecutors can't divulge a defendant's criminal history unless he testifies, Eazer said.

Defense attorney Natasha Wrae said there are times when jurors will inadvertently help by asking a question that an attorney purposely stayed away from for fear of an objection. If a juror asks the question, it's more likely to get asked, Wrae said.

Sometimes, questions also can help the attorneys figure out who is paying attention and who isn't, Wrae said.

A juror was designated an alternate in one of her recent cases because he asked a question that had been answered in opening statements and during the defendant's videotaped statement, Wrae said.

Wrae said she disagrees with those attorneys who prefer that judges ask follow-up questions rather than jurors.

"When judges ask questions, the jurors think: 'Oh, that must be important. The judge is asking it,' " and that might not be the case, Wrae said.

Defense attorney Eric Larsen, who represented Forde, was an attorney for about six years before Arizona jurors were given the right to ask questions in 1992.

"The more involved a jury can be in the process, rather than passively sitting through it, the better," Larsen said.

In the Shawna Forde trial, juror No. 13 asked a defense witness - a psychologist - this question: "Can post-event information trigger the recall of accurate information that didn't come to mind immediately following the event?"

The answer was yes.

Contact reporter Kim Smith at 573-4241 or kimsmith@azstarnet.com