Was it wrong to let jurors talk to witnesses in the Jonchuck trial?

Florida law allows for questions but specifies that they should be in writing
Published April 19
Updated April 19

LARGO — Before the second day of testimony in the murder trial of John Jonchuck, a courtroom deputy approached the bench.

A juror had asked what to do if he had a question.

Pinellas-Pasco Circuit Judge Chris Helinger tilted her head back. “Well, let’s have a discussion now,” she said.

“I have never invited questions,” the judge told the prosecutors and public defenders, who had worked toward this trial for years. She worried about slowing down the trial and had other concerns, which she did not explain in open court, about “issues that could be avoided.”

Jonchuck found guilty of first-degree murder

But now that a juror wanted to know, she said, she felt she had to explain the process — still relatively new but with specific rules.

From then on, jurors asked more than 50 questions to witnesses during the month-long trial of the Tampa man who dropped his 5-year-old daughter off a bridge. They wrote on scraps of paper from yellow legal pads and passed them to a deputy, who handed them to Helinger.

She showed the questions to both teams of lawyers, and together, they decided what the witness could answer. Then, the judge read the questions to the witness, who replied facing the jury.

Jurors asked when Jonchuck had been Baker Acted — and why. They wanted to know if he had asked about baptizing his daughter, Phoebe. How long had he been off his medications? What was he addicted to? “Does the idea of saving the world show empathy?”

Sometimes, the jurors had follow-up questions that they asked directly, talking to the witnesses themselves.

***

The Trial of John Jonchuck

For centuries, jurors in criminal court had to sit silently. They weren’t allowed to ask questions except at the end of the trial, and then only of the judge.

But in the last decade, increasing numbers of states have adopted rules that allow jurors to get clarification during the testimony.

“I’m very much in favor of letting the jurors ask questions,” said Joseph Rice, a clinical psychologist who is president of the Jury Research Institute in San Francisco. He tracks the role jurors play in civil and criminal trials.

“Lawyers don’t always know what jurors need to know, and it gives them some insight about where the jurors are going,” Rice said. “That’s incredible.”

There are risks, he warned. “Some jurors get real full of themselves, they’ve seen too many Law & Order shows on TV,” he said. If a juror asks something that shouldn’t be admissible in court, the judge would have to instruct other jurors to disregard that statement.

That could be grounds for a mistrial, Rice said, or pave the path to an appeal.

“The judge should be the umpire, arbitrating all the questions,” he said. “The jurors should never interact directly with a witness.”

***

The Long Fall of Phoebe Jonchuck

On day 13 of the trial, one juror kept pressing for answers.

Psychiatrist Michael Maher was swiveling in his seat, his testimony capped, like the witnesses before him, by the sound of paper ripping in the jury box.

The judge read a question, from Juror 1179: “Can a person who suffers from Mr. Jonchuck’s psychotic condition still kill his daughter without experiencing an episode at the exact time of the offense?”

Maher was confused. He took the scrap of paper from the judge and read for himself.

“I don’t think this is a question that modern medicine can yet answer,” he said.

“Okay,” the judge said, then looked to the juror. “1179?”

It was not okay.

The juror wanted to clarify, so the judge let him address the witness directly.

“You stated that you can be sane, you can do something sane and the next minute you can do something psychotic. Correct?”

The psychiatrist looked up to the judge. “I don’t think I said that.”

Helinger quickly stopped the questioning. “Okay we need to ... write it down. Write it down. Okay?” she told the juror. “There’s a danger in you turning into a lawyer.”

The man struggled to rephrase his question, so the judge moved onto other jurors. One woman also spoke directly to the witness, asking two follow-ups to her written questions.

Then juror 1179 got another chance. After a brief back-and-forth, he said: “So with a soldier he can go and kill somebody but he’s not psychotic...”

The judge cut him off. “That’s a little too far.” She looked to the lawyers. “Does anyone want that question answered?”

The juror interrupted. “Well, I was going to refer...”

“Whoa, whoa, whoa,” Helinger said.

***

In Florida, the Rules of Criminal Procedure that allow jurors to ask questions were adopted by the state Supreme Court in October 2007. Justices ushered in that rule alongside several other changes, including one that allowed jurors to take notes during trials. Their notes have to be left in the courtroom each night and are shredded after the verdict.

Jurors in civil cases always are allowed to ask questions, said Tampa defense attorney Lyann Goudie. But in criminal cases, it’s up to the judge.

“I don’t think it’s done often at all in criminal cases,” said Goudie, who has practiced law for 31 years.

Stetson Law professor Susan Rozelle said some judges still don’t permit questions.

The proposal garnered heavy skepticism as the Supreme Court weighed the change.

Two attorneys from the Miami chapter of the Florida Association of Criminal Defense Lawyers wrote back then that a criminal trial should not be “a meandering quest for ‘the truth.’ ” “It is not the juror’s role to ‘solve the case.’ It is not the juror’s role to develop facts.”

Bruce Bartlett, who has spent 40 years in the State Attorney’s Office in Pinellas County, said most judges still only take jury questions during deliberations. He’s never been involved in a case where a judge allowed jurors to question witnesses.

“It’s kind of precarious,” he said. “You never know what they’re going to ask, or why.”

Retired judge Tracy Sheehan, who served in the Hillsborough Circuit for a decade, said there are many good reasons to allow jurors to submit questions. “Sometimes, they think of things lawyers never even thought to ask,” she said.

But the process is “fraught with problems, potential danger to allow inadmissible evidence,” she said. “Once it’s out, there’s no putting air back in that balloon.”

If a judge wants to let jurors question witnesses, Bartlett said, lawyers can’t object. But after jurors ask, the lawyers can follow up with witnesses. And they can object to jurors’ individual questions -- without the jury present.

The statute is clear: “The questions must be submitted in writing.”

“It doesn’t address any exception for follow-up questions,” said Rozelle, the law professor.

Jonchuck’s lawyers said they are considering their appeals and were surprised the judge permitted “the questioning to be done outside the recommended procedure.”

“Verbal questions should not be allowed,” said public defender Greg Williams.

Judge Helinger, through a court spokesman, declined to comment.

In his 30 years of studying juries, Rice said he has never heard of jurors getting to ask follow-up questions directly to someone on the stand. He said, “That could be trouble.”

***

For the last witness in the trial, the defense called Maher, the psychiatrist, a second time. The jury had several questions. Juror 1179 struggled once more to get the answers he wanted.

“Do you have to malinger if you are just existing with the effects of multiple medications?” he wrote, referring to the technical term for someone faking symptoms.

“I’m not 100 percent certain that I understand the question,” Maher said. He tried to give a hypothetical, to see if he understood, but the judge struggled to follow the example.

“Okay, sorry,” the psychiatrist said.

The juror spoke up. “Can I ask a question?”

“Yes, you can,” the judge said.

“I guess it’s just ... I’m asking ... I don’t have to malinger or fake a condition if I’m on medication and it’s acting the way — like you said — you just look sedated. I don’t really have to fake anything because I’m just reacting to the medication you gave me?”

The psychiatrist still didn’t follow. He and the juror went back and forth for about five minutes.

“I guess my point is if my medications are working, then my doctor would say, ‘Oh you’re not acting the way you used to act, so your medications are working,’ ” the juror said.

The lawyers were silent.

The doctor said a trained medical professional in a hospital could tell if a patient was faking symptoms, despite sedation. Medications, he said, are 60 to 70 percent effective.

“Okay,” the juror said. “So if I’m acting 30 percent crazy, can you tell?”

Contact Josh Solomon at jsolomon@tampabay.com. Follow @ByJoshSolomon.

Contact Zachary T. Sampson at zsampson@tampabay.com. Follow @ZackSampson.

Contact Lane DeGregory at ldegregory@tampabay.com. Follow @LaneDeGregory.

RULE 3.371. JUROR QUESTIONS OF WITNESSES

(a) Judicial Discretion. At the discretion of the presiding trial judge,

jurors may be allowed to submit questions of witnesses during the trial.

(b) Procedure. The trial judge shall utilize the following procedure if a juror indicates that the juror wishes to ask a question:

(1) the questions must be submitted in writing;

(2) the trial judge shall review the question outside the presence of the jury;

(3) counsel shall have an opportunity to object to the question outside the presence of the jury;

(4) counsel shall be allowed to ask follow up questions; and

(5) the jury must be advised that if a question submitted by a juror is not allowed for any reason, the juror must not discuss it with the other jurors and must not hold it against either party.

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