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What is the Difference Between a Question of Law and a Question of Fact?

Jan 31st, 2017 DUI DUI Trials What is the Difference Between a Question of Law and a Question of Fact?

The short and simple answer is that questions of law are for the judge to decide whereas questions of fact are for the jury to decide.  However, while technically correct, this short answer is incomplete.  Especially if you are charged with a crime like intoxicated driving.

As with any other crime in Michigan, if you are charged with intoxicated driving, then you have an absolute right to a jury trial.  You have this right regardless of whether the intoxication is allegedly caused by alcohol, marijuana, or some other drug.

Because this right is yours and no one else’s, it will be up to you, not your lawyer, to decide if you want a trial in your case. However, in making this decision you will need to discuss your case with your lawyer, and then decide if you should plead guilty or whether a trial is in your best interest.  As part of this discussion, it may be helpful for you to understand the role a jury plays in a trial; and that role is to be the finders of fact. In a jury trial, this principle is set forth in standard Michigan Criminal Jury instruction 3.1 as follows:

Duties of Judge and Jury

(3) As jurors, you must decide what the facts of this case are. This is your job, and nobody else’s. You must think about all the evidence and then decide what each piece of evidence means and how important you think it is. This includes whether you believe what each of the witnesses said. What you decide about any fact in this case is final.

(4) It is my duty to instruct you on the law. You must take the law as I give it to you. If a lawyer says something different about the law, follow what I say. At various times, I have already given you some instructions about the law. You must take all my instructions together as the law you are to follow. You should not pay attention to some instructions and ignore others.

But what exactly is a “question of fact” and how does that differ from a question of law?  In a criminal case a question of fact might be “was a search warrant supported by probable cause” or, looking at the rules of evidence, “is the breath or blood test admissible?”  Another common legal issue might be “was the traffic stop lawful.”  These are all issues for a judge to decide prior to trial.  A jury does not have the authority or power to decide these legal issues, and therefore cannot, for example, dismiss a case because the police unlawfully stopped or arrested you.

However, in deciding these legal issues, judges often must make findings of fact, and this is because most issues are a combination of law and facts.  This is where things get more difficult to understand or explain. “[T]he appropriate methodology for distinguishing questions of fact from questions of law has been, to say the least, elusive.”[i]  Also, the Court has yet to arrive at “a rule or principle that will unerringly distinguish a factual finding from a legal conclusion.”[ii]

Therefore, certain legal issues, even once decided by a judge, can still be addressed with the jury.  For example, if prior to trial your lawyer argues that the breath test should be suppressed because the police didn’t observe you continuously for 15 minutes prior to the breath test, and the judge denies the motion, the judge is saying that your legal issue “goes to weight rather than admissibility.”  This means the judge has found that the breath test is admissible, but it’s up to the jury to decide what weight to give the test.  In this example, it means the jury must decide if the lack of 15-minute observation means the test is not reliable. Again, the Michigan Criminal Jury Instructions cover this issue in 15.5.

M Crim JI 15.5 Factors in Considering Operating While Intoxicated [OWI] and Operating While Visibly Impaired [OWVI]

As you consider the possible verdicts, you should think about the following:

(7) In considering the evidence and arriving at your verdict, you may give the test whatever weight you believe that it deserves. The results of a test are just one factor you may consider, along with all other evidence about the condition of the defendant at the time [he/she] was operating the motor vehicle.

Because it’s not always easy to understand the limits or extent of power of a jury in a criminal case it will be important for you to discuss any legal vs. factual issues that may exist in your case, the strengths and weaknesses of these issues, and how these issues may play out during a jury trial.  Armed with this information you will be able to make fully informed trial or no-trial decision.

For additional information about the history of jury trials in the United States, including a discussion about jury nullification, see Patrick Barone’s article entitled: “Independent Juries: Liberties Last Defense.”


[i] See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984); Baumgartner v. United States, 322 U.S. 665, 671 (1944).

[ii] PullmanStandard v. Swint, 456 U.S. 273, 288 (1982).