§ 2.06 JURY QUESTIONING OF WITNESSES

• Jurisdiction: United States

§ 2.06. JURY QUESTIONING OF WITNESSES

Empirical research has sparked interest in permitting greater jury participation in trials.²⁴ One way to increase jury engagement is to permit questions by the jurors. This practice may result in enhanced juror attentiveness and alert the attorneys to any misunderstood issues.²⁵ There is no Federal Rule on jury questioning, but the cases recognize the trial court's discretion on this issue.²⁶ There are, however, a number of dangers in the practice:

Witness questioning by jurors is fraught with risks. If permitted to go too far, examination by jurors may convert the jurors to advocates, compromising their neutrality. Jurors also may begin premature deliberation. Further, the practice "will often impale attorneys on the horns of a dilemma." Attorneys are faced with objecting to questions proffered by the arbiters that the attorneys are attempting to influence. The risk that an objection will alienate a jury is rather obvious. In cases such as this one, where jurors are permitted to blurt out their questions, the district court almost invites a mistrial. The district court leaves open the possibility that a juror will ask an impermissibly prejudicial question to which the witness responds before the judge is able to intervene. In the event of such a mishap, the entire trial may be rendered nothing more than a lesson in futility.²⁷

If jury questioning is permitted, protective procedures should be followed. The Second Circuit has outlined a series of protections: "(1) jurors should be instructed to submit their questions in writing to the judge; (2) outside the presence of the jury, the judge should review the questions with counsel, who may then object; and (3) the court itself should put the approved questions to the witnesses."²⁸

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Notes:

^[24] See Penrod & Heuer, Tweaking Commonsense: Assessing Aids to Jury Decision Making, 3 Psychol., Pub. Pol'y & L. 259 (1997); Heuer & Penrod, Increasing Jurors' Participation in Trials: A Field Experiment with Jury Notetaking and Question Asking, 12 Law & Hum. Behav. 231 (1988); Sand & Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U. L. Rev. 423 (1985).

^[25] See United States v. Richardson, 233 F.3d 1285, 1289-90 (11th Cir. 2000) ("The underlying rationale for the practice of permitting jurors to ask questions is that it helps jurors clarify and understand factual issues, especially in complex or lengthy trials that involve...