State v. Fisher

Decision Date11 June 2003
Docket NumberNo. 2002-0201.,2002-0201.
Citation789 N.E.2d 222,2003 Ohio 2761
PartiesTHE STATE OF OHIO, APPELLEE, v. FISHER, APPELLANT.
CourtOhio Court of Appeals

Ron O'Brien, Franklin County Prosecuting Attorney, and Laura M. Rayce, Assistant Prosecuting Attorney, for appellee.

Donald C. Schumacher, for appellant.

Elizabeth Kelly and Paul Skendelas, urging reversal for amicus curiae Ohio Association of Criminal Defense Lawyers.

Raymond Vasvari, Legal Director, and Melissa Day, urging reversal for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.

MOYER, C.J.

{¶1} Defendant-appellant, Michael A. Fisher, appeals from the judgment of the Tenth District Court of Appeals, which affirmed his conviction for felonious assault with a firearm specification. For the following reasons, we affirm the judgment of the court of appeals.

I

{¶2} On April 5, 2000, the Franklin County Grand Jury indicted defendant-appellant for felonious assault with a firearm specification. Appellant entered a plea of not guilty and was subsequently tried in the Franklin County Court of Common Pleas. Prior to the presentation of evidence, the trial court informed the jurors that they would be permitted to ask questions of the witnesses that testified at trial. The trial judge instructed the jurors to submit their questions in writing to the bailiff, whereupon the judge and the attorneys would review the questions in a sidebar conference. The trial judge would then determine whether the questions were admissible under the rules of evidence and would read the admissible questions aloud to the witnesses.

{¶3} In accordance with the foregoing procedure, the jurors submitted 23 questions to six of the eight witnesses that testified at trial. The trial court disallowed five questions on evidentiary grounds and rephrased two questions for clarification. After reading a juror question, the trial court allowed the prosecution and defense counsel an opportunity to ask followup questions. Although defense counsel did not object to the particular questions that were read to the witnesses, counsel entered a continuing objection to the general practice of allowing jurors to submit questions.

{¶4} At the conclusion of the trial, the jury returned a guilty verdict on the felonious assault charge and the firearm specification. Appellant appealed from his conviction to the Tenth District Court of Appeals, alleging that the practice of allowing jurors to question witnesses is "inherently prejudicial." The court of appeals affirmed the conviction and certified its judgment to be in conflict with that of the First District Court of Appeals in State v. Gilden (2001), 144 Ohio App.3d 69, 759 N.E.2d 468.

{¶5} The cause is now before this court upon our determination that a conflict exists.

II

{¶6} The court of appeals certified the following issue for our determination: "Is the practice of a trial court of allowing members of a jury to submit questions to the court and attorneys for possible submission to witnesses per se prejudicial to a criminal defendant?" (Italics sic.) A proper analysis of this issue requires (1) a clarification of the certified issue, (2) a survey of decisions from other jurisdictions, and (3) an examination of the effect of juror questioning on the trial court proceeding. We consider each aspect of our analysis separately.

A. Clarification of the Certified Issue

{¶7} As a preliminary matter, we note that the issue of whether juror questioning is "prejudicial" assumes that such questioning is error. Crim.R. 52(A), which governs the criminal appeal of a nonforfeited error, provides that "[a]ny error * * * which does not affect substantial rights shall be disregarded." (Emphasis added.) Thus, Crim.R. 52(A) sets forth two requirements that must be satisfied before a reviewing court may correct an alleged error. First, the reviewing court must determine whether there was an "error"—i.e., a "[d]eviation from a legal rule." United States v. Olano (1993), 507 U.S. 725, 732-733, 113 S.Ct. 1770, 123 L.Ed.2d 508. Second, the reviewing court must engage in a specific analysis of the trial court record—a so-called "harmless error" inquiry— to determine whether the error "affect[ed] substantial rights" of the criminal defendant. This language has been interpreted to "mean[ ] that the error must have been prejudicial: It must have affected the outcome of the [trial] court proceedings." (Emphasis added.) Id. at 734, 113 S.Ct. 1770, 123 L.Ed.2d 508. Consequently, we must determine that the practice of allowing jurors to question witnesses is error before we consider whether the practice is prejudicial.

{¶8} Even assuming that the practice of allowing juror questioning is error, we note that the certified issue is not whether the practice was merely prejudicial in the instant matter. Rather, the certified issue is whether the practice of allowing juror questioning is "per se prejudicial." In the context of this case, the phrase "per se prejudicial" can be interpreted one of two ways: (1) juror questioning is "inherently" prejudicial—i.e., it always affects the outcome of a trial, or (2) juror questioning, although not always affecting the outcome of a trial, should give rise to a conclusive presumption of prejudice as a matter of law. The first of these interpretations, however, is surely wrong. As appellant conceded at oral argument, "I will not tell this court, and I won't presume to try to convince you, that that process is one that * * * affects all jurors, or it is one that we can sit and point to prejudice in each and every situation." Indeed, the fact that a defendant may actually benefit from juror questioning renders such an argument unpersuasive.

{¶9} Given that appellant does not argue that juror questioning is "inherently" prejudicial, we construe appellant's use of the phrase "per se prejudicial" to suggest that a reviewing court should conclusively presume prejudice in cases in which juror questioning is permitted. We note, however, that the type of error that gives rise to such a presumption is more properly characterized as a "structural error." In Arizona v. Fulminante (1991), 499 U.S. 279, 306-312, 111 S.Ct. 1246, 113 L.Ed.2d 302, the United States Supreme Court denominated the two types of constitutional errors that may occur in the course of a criminal proceeding—"trial errors," which are reviewable for harmless error, and "structural errors," which are per se cause for reversal. See State v. Esparza (1996), 74 Ohio St.3d 660, 661-662, 660 N.E.2d 1194. "Trial error" is "error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." Fulminante, 499 U.S. at 307-308, 111 S.Ct. 1246, 113 L.Ed.2d 302. "Structural errors," on the other hand, "defy analysis by `harmless error' standards" because they "affect[ ] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.' " Id. at 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. Consequently, a structural error mandates a finding of "per se prejudice." See Campbell v. Rice (C.A.9, 2002), 302 F.3d 892, 900 ("We * * * conclude that [the relevant error] amounted to a structural error, mandating a finding of prejudice per se").

{¶10} Notwithstanding the logical nexus between a structural error and a finding of "per se prejudice," appellant's exclusive reliance on a "per se prejudicial" theory leads him to disregard the substantial body of case law that has delineated the parameters of the structural error doctrine. See State v. Hill (2001) 92 Ohio St.3d 191, 196-197, 749 N.E.2d 274 (summarizing United States Supreme Court jurisprudence regarding structural error). In the future, therefore, we encourage litigants and reviewing courts to analyze whether a constitutional error is cause for automatic reversal in the context of whether the error is "structural." Accordingly, appellant's "per se prejudicial" argument—that juror questioning can never be harmless under Crim.R. 52(A)—is more appropriately characterized as alleging a structural error.

{¶11} With the foregoing in mind, we survey decisions from other jurisdictions for guidance on the propriety of juror questioning.

B. Other Jurisdictions

{¶12} Although this court has not previously addressed the issue of whether jurors should be permitted to question witnesses in civil or criminal cases, courts in other jurisdictions have generally held that the practice is a matter committed to the sound discretion of the trial court. The primary disagreement in this area centers on whether—and to what extent—appellate courts should encourage or discourage the practice of allowing jurors to question witnesses. A brief review of these cases is therefore appropriate in resolving (1) whether juror questioning of witnesses should be a matter within the discretion of the trial court, and (2) if so, the extent to which this court should endorse the practice.

{¶13} Every federal circuit that has addressed the issue has concluded that the practice of allowing jurors to question witnesses is a matter within the discretion of the trial court.1 Several of the federal circuits, however, discourage the practice of allowing jurors to question witnesses. See, e.g., Feinberg, 89 F.3d at 336 ("We agree that the practice is acceptable in some cases, but do not condone it"). Other federal circuits, by contrast, liberally permit such questioning. See, e.g., Callahan, 588 F.2d at 1086 ("If a juror is unclear as to a point in...

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