Morrison v. State

Decision Date16 December 1992
Docket NumberNo. 970-91,970-91
Citation845 S.W.2d 882
PartiesSteven MORRISON, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Annette K. Hanna, College Station, for appellant.

Bill Turner, Dist. Atty., and James W. Locke, Asst. Dist. Atty., Bryan, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellant was convicted of murder and punishment was assessed at confinement for fifty years in the Texas Department of Criminal Justice. On appeal, appellant complained of the trial court's practice of allowing jurors to question witnesses by means of submitting written questions to the court. 1 Appellant argued that this practice encourages jurors to become advocates. Appellant further contended that he was harmed because the juror's question, although ruled inadmissible, "tipped off" the prosecutor, prompting the State to offer additional evidence on a material issue. 2 The Tenth Court of Appeals declined to ban the practice of juror questioning of witnesses, but held that the juror's question in this case led to reversible error. 3

We granted the State's Petition for Discretionary Review to determine whether "the court of appeals erred in holding that the trial court abused its discretion in allowing the State to recall a witness to produce evidence on a topic raised by a juror's question." 4 The State claims that the trial court's procedure for allowing juror questioning of witnesses "embodied virtually all safeguards" suggested by numerous other courts that have permitted the practice and argued that where procedural safeguards are adhered to, neither side gains an unfair advantage. The State further asserts that the practice does not lead jurors to become advocates, but aids in fully developing the evidence. Appellant essentially argues that the practice of allowing juror questioning distorts the jury's neutral factfinding role, leading jurors to assume the role of advocates. Appellant claims that juror questions amount to a form a communication between jurors and the parties which calls into question the integrity of the adversary system. We agree with appellant. To allow our adversary system to travel, without prior authorization, unregulated by statute or rule, in the direction encouraged by the trial court's practice is inconsistent with the principles underlying the system. Further, the dangers inherent in such a practice cannot be adequately circumvented by the imposition of procedural safeguards.

Resolution of the issue presented in this case turns upon our understanding of the adversary system. 5 The practice of juror questioning reflects the currently popular movement to downplay long-standing adversarial principles in favor of an intensified focus on truth-finding. 6 While we recognize that the search for truth is an integral part of the adversary process, other equally prominent features characterize our system. Addressing the multiple nature of our adversary system Justice Black wrote:

A criminal trial is in part a search for truth. But it is also a system designed to protect "freedom" by insuring that no one is criminally punished unless the State has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty.

Williams v. Florida, 399 U.S. 78, 113-14, 90 S.Ct. 1893, 1912, 26 L.Ed.2d 446 (1970) (concurring in part and dissenting in part). Due process and those individual rights that are fundamental to our quality of life co-exist with, and at times override, the truth-finding function. 7 These values became intrinsic to the adversary process due largely to a general distrust of governmental power. See, e.g., Apodaca v. Oregon, 406 U.S. 404, 410, 92 S.Ct. 1628, 1632, 32 L.Ed.2d 184 (1972); Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968). Evidentiary barriers to conviction exist, in part, to equalize the contest between the state and the defense by offsetting the abundant resources and power of the state. 8

Establishment of the jury as a neutral and passive fact-finder in the adversary process paralleled the movement to safeguard individual rights against governmental oppression. 9 Duncan, 391 U.S. at 156, 88 S.Ct. at 1451. The desire for the jury to stand as a body independent of governmental influence led to defined roles among participants in the system. The adversary theory as it has prevailed for the past 200 years maintains that the devotion of the participants, judge, juror and advocate, each to a single function, leads to the fairest and most efficient resolution of the dispute. Stephan Landsman, The Adversary System, a Description and Defense (1984). Party responsibility for the production of evidence insulates the jury, to the greatest extent possible, from the contest. Id.

The practice of juror questioning of witnesses is most disturbing in its potential for undermining these mainstays of the adversary process. As eloquently stated by 8th Circuit Chief Judge Lay, "[t]he fundamental problem with juror questions lies in the gross distortion of the adversary system and the misconception of the role of the jury as a neutral factfinder in the adversary process." United States v. Johnson, 892 F.2d 707, 713 (8th Cir.1989) (concurring opinion) (emphasis added). 10 To allow active juror participation in the presentation of evidence encourages jurors to depart from their role as passive listeners and assume an active adversarial or inquisitorial stance. Such participation inevitably leads the inquirer to draw conclusions or settle on a given legal theory before the parties have completed their presentations, and before the court has instructed the jury on the law of the case. 11 Although it is impossible to guarantee that jurors will remain open-minded until the presentation of all of the evidence and instructions, passive detachment increases that probability. Johnson, 892 F.2d at 713.

Given the importance of maintaining juror impartiality as fundamental to adversarial integrity, 12 any redefining of the juror's role in the process must be undertaken only when the benefits are exceedingly clear. 13 The benefits of allowing jurors to participate in soliciting evidence are far from clear and fade to insignificance in light of the perils presented to adversarial principles. 14 The State emphasizes the imposition of procedural safeguards, apparently presuming that judicial control will effectively eliminate any danger presented to adversary values. 15 Although some of the pitfalls of the practice may be avoided pursuant to strict procedural safeguards, numerous other procedural and theoretical implications remain unanswered. 16 For instance, what is the permissible scope of juror questions? Should jurors be told of the reasons for exclusion of a submitted question? Should a witness be recalled if a juror thinks of a question after that witness has been dismissed? If a juror's questions indicate that the juror is becoming prematurely partial should the judge declare a mistrial? Should jurors be allowed to question a defendant who chooses to take the stand? Especially troublesome is the possibility that juror partiality may arise as the result of a single question or may arise in one juror as a result of another's questions, however impartial those questions may appear. 17

The questionable benefits of such a practice do not outweigh the far-reaching hazards presented to other values intrinsic in the system. Accord State v. Barrett, 297 S.E.2d 794, 796 (1982), cert. denied, 460 U.S. 1045, 103 S.Ct. 1445, 75 L.Ed.2d 800 (1983). Absent a thorough legislative mandate in this area, courts should not experiment. 18 A change in our system involving intrusion of one component into the function of another may only be established through the limited rule making authority of this court, subject to disapproval by the legislature or by the legislature in accordance with due process. We know of no authority establishing or authorizing jurors to ask questions of witnesses in the criminal jurisprudence of this state and therefore find the same to be error.

The State contends that the practice of juror questioning in the instant case was "of negligible value" and therefore error, if any, was harmless. Where the role of the jury as a neutral fact-finding body is significantly modified, the underpinnings of our system, designed to ensure trial by a fair and impartial jury are likewise compromised. A determination of harm in this context is virtually impossible. Accordingly, we hold that the practice of permitting jurors to become active participants in the solicitation of evidence by questioning witnesses is not subject to a harm analysis. We affirm the judgment of the court of appeals.

MILLER, J., joins the judgment and opinion of the majority with the following note: The harm analysis question is not completely settled in my mind, but the issue concerning the practice of allowing juror questions needs resolution, thus I join the majority opinion. If the legislature, who has the responsibility of enacting criminal procedure for this state, wishes to allow the practice of juror questioning, they are certainly free to do so.

CLINTON, Judge, concurring.

At least twenty years ago, an accused representing himself stood mute when the late Judge E.E. Jordan allowed one or more jurors to question witnesses about "the fact that he was unable to make an identification of the [accused] as the man he saw [leaving the scene of the crime]." The Court "fail[ed] to perceive how these questions permitted by the court without objection were improper or harmful to the [accused]." Carr v. State, 475 S.W.2d 755, at 757 (Tex.Cr.App.1972), appeal dismissed and cert. denied, 409 U.S. 1099, 93 S.Ct. 919, 34 L.Ed.2d 682 (1973). 1

Although Judge Jordan apparently continued to...

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