BARRY
J. PORTMAN
Federal
Public Defender
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
IN THE UNITED STATES
DISTRICT COURT
FOR THE NORTHERN
DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA, Plaintiff, v. [DEFENDANT], Defendant.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO PRECLUDE USE OF JUROR NOTES AND DESIGNATING ALL GOVERNMENT
WITNESSES AS UNDER DEFENSE SUBPOENA UNLESS RELEASED Pretrial Conference Date: _________, 2000 |
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Introduction
[Defendant] respectfully moves the
Court for an order
precluding juror questioning of witnesses and precluding the
disclosure of any note from the jury that does not regard a structural issue. [Defendant] also requests an order
that all government witnesses be considered under defense subpoena until
released by the defense.
Discussion
I. This Court Should
Preclude Use of Questions From the Jury During Trial That Do Not Relate to
Structural Problems.
The Court has the discretion to allow jurors to ask
questions. Courts which have addressed
this issue, however, are Aunified in their disapproval@ of the practice of allowing jurors to ask questions. See United States v. Ajmal, 67 F.3d
12, 14-15 (2d Cir. 1995); United States v. Thompson, 76 F.3d 442, 448
(2d Cir. 1997) (A[W]e have strongly discouraged the practice except in
extraordinary or compelling circumstances.@); United States v. Cassiere, 4 F.3d 1006, 1017 (1st Cir.
1993) (same); United States v. Feinberg, 89 F.3d 333, 336 (7th
Cir. 1996) (noting Agrave concerns@ and Ashar[ing] the reservations expressed by other courts@); United
States v. Polowichak, 783 F.2d 410, 412 (4th Cir.1986); United States v.
Johnson, 892 F.2d 707, 711 (8th Cir. 1989) (Lay, C.J. concurring)
(observing that juror questions are inherently prejudicial and may violate due
process in a criminal case).
The process of formulating questions can lead jurors to
prematurely begin the process of deliberation.
In United States v. Thompson, 76 F.3d at 448, the court
found that
It is difficult for jurors to be both active participants in the
adversarial process, embroiled in the questioning of witnesses, and detached
observers, passing on the credibility of the witnesses and the plausibility of
the facts presented . . . . The appropriate occasion for jurors to express
skepticism is during deliberations, not during trial. And the appropriate time to start deliberations is after the jury
has heard all the evidence, the arguments of counsel, and the judge=s
charge on the law. At the very least,
jury questioning is a subliminal invitation to launch prematurely into
evaluating the evidence.
Id. at 448.
MOreover, jurors may weigh the answers to questions from each
other more heavily than answers to questions from counsel. See, e.g., DeBenedetto v. Goodyear Tire
and Rubber, 754 F.2d 512, 515-517 (4th Cir. 1985). In DeBenedetto, the Fourth Circuit
explained the risk that jurors will give undue significance to each other=s
questions simply because the questions come from fellow jury members:
Every trial judge has noted the development in the most lengthy
trials of cohesiveness in the jury as the trial goes on, coming eventually
almost to the spirit of comraderie, in which actions and reactions of any
individual juror are perceived by those jurors as those of the whole jury. In such a setting, the individual juror=s
question, and the answer elicited, almost certainly will take on a stronger
significance to the jury than those questions and answers presented in the
normal adversarial way. To the extent
that such juror questions reflect consideration of the evidence - and such
questions inevitably must do so - then, at least, the questioning juror has
begun the deliberating process with his fellow jurors.
Id. at 515-17.
Jurors may also ask questions about legally irrelevant or
otherwise inadmissible evidence. A
party who objects to such questions risks alienating the jury. See Feinberg, 89 F.3d at 336-37. (AThe
risk that an objection will alienate the jury is rather obvious.@).
In United States v. Ajmal, the trial court used a procedure
of receiving jurors= questions in writing and asking only those that the court found
proper under the rules of evidence. 67
F.3d at 15. On appeal, the court nevertheless held that, Aregardless
of the procedure adopted,@ allowing juror questions without Aample
justification@ was an abuse of discretion.
Id. at 14-15. The
defendant's conviction was reversed. See
id.
Questions from the jury also have the potential to undermine the
orderly process of the trial. See
DeBenedetto, 754 F.2d at 515-17; see also Devitt & Blackmar, Federal
Jury Practice and Instructions ' 5.15 (1992) (Allowing juror questions Ais a
practice which usually should not be encouraged because ordinarily it serves no
worthwhile purpose and disrupts orderly trial procedure.@). Jury questions might even cause some jurors
to feel that they are not fulfilling their responsibilities unless they ask
questions.@ United States v. Douglas, 81 F.3d 324, 326 (2d Cir. 1996).
There are no extraordinary or compelling circumstances in this
case to warrant the consideration of juror questions during the course of the
trial and before deliberations. This is not a complex case. ASome cases, such as conspiracy or antitrust cases, may have facts
so complicated that jurors should be allowed to ask questions . . . but those
cases are the exceptions; in the vast majority of cases, the risks outweigh the
benefits.@ Feinberg, 89 F.3d
at 337. See also United States v.
Thompson, 76 F.3d 442, 448 (2nd Cir. 1996)(holding that the trial court
abused its discretion by allowing jurors to address written questions to
witnesses because the complexity of conspiracy in question was not sufficient
to justify use of the procedure). Here,
because there are no sufficiently extraordinary circumstances in the present
case to justify juror questions, [defendant] respectfully requests an order precluding such questions and
precluding the disclosure of any jury note that is not in regard to a
structural issue.
II. THIS COURT SHOULD
DESIGNATE ALL GOVERNMENT WITNESSES AS UNDER DEFENSE SUBPOENA UNTIL RELEASED BY
THE DEFENSE.
On occasion, government witnesses noticed for trial who are
released by the government without informing the defense thereafter become unavailable. In order for [defendant] to retain access to
these witnesses, he requests an order that any released government witnesses be
considered under defense subpoena.
Indigent defendants are provided the opportunity to have the
government subpoena witnesses on their behalf by the Sixth Amendment and by
Federal Rule of Criminal Procedure 17(b).
See United States v. Barker, 553 F.2d 1013, 1019 (6th Cir.
1997). In addition, this Court has the
inherent power to subpoena witnesses on behalf of indigents. See Lloyd v McKendree, 749
F.2d 705, 706-07 (11th Cir. 1985); Link v. Wabash, 370 U.S. 626,
630, 82 S.Ct. 1386, 1389 (1962) (AThe inherent powers of the federal courts are governed not by rule
or statute but by the control necessarily vested in courts to manage their own
affairs so as to achieve the orderly and expeditious disposition of cases.@).
To safeguard against the loss of vital witness testimony and to
ensure that this indigent defendant is provided all Fifth and Sixth Amendment
rights, [defendant] requests that the court exercise its inherent power to order that
any released government witnesses be considered under defense subpoena for the
duration of the trial.
Conclusion
For the foregoing reasons, [defendant] respectfully requests that the Court grant this motion and issue
the attached proposed orders.
Dated: ___________, 2000
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
[ATTORNEY]
Assistant Federal Public Defender
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