Look who's talking now: juror questions to witnesses.

• Author: Olson, Mark S.

There is a growing trend across the United States, both in state and federal courts, that allows jurors to ask questions of witnesses during the course of a trial. There has been a surge of jury innovation research that has led many federal and state courts to allow jurors to ask questions. All of the federal jurisdictions that have decided the issue have allowed juror questioning of witnesses, and the vast majority of states have allowed the practice. The American Bar Association has developed standards for juror questioning. In addition, the IADC has addressed the topic in its National Jury Trial Innovations Project. (27)

Generally, the practice involves one or more of the following features: (1) permitting jurors to pose oral questions directly to witnesses; (2) jurors submitting written questions to the court, which then identifies admissible questions without first sharing the questions with counsel; (3) having jurors submit written questions to the court, which then holds a sidebar with attorneys to determine the admissibility of the questions; (4) permitting jurors to submit questions to the court, which then discloses the questions to the attorneys, who, using their discretion, may incorporate the substance of the questions into their own questions to a witness; and (5) allowing jurors to ask questions spontaneously.

Authority For Juror Questioning

The practice of juror questioning of witnesses has existed in English law since the 18th Century and in the United States since 1825. (28)

While the Federal Rules of Civil Procedure do not specifically address whether jurors may ask questions of witnesses, Rule of Evidence 611 (a) arguably gives the court "reasonable control over the mode and order of interrogating witnesses and presenting evidence." The objectives of Rule 611(a) are to "(1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." (29) Those courts that have considered the issue have held that the matter is within the discretion of the trial court. (30)

State And Federal Court Acceptance Of The Practice

The overwhelming majority of federal and state appellate courts that have addressed the issue accept juror questioning and leave the issue to the sound discretion of the trial court so long as the trial court follows a number of procedural safeguards.

Approximately one-third of the states have approved the use of juror questioning. States such as Arizona, Arkansas, Florida, Indiana, Iowa, Kentucky, Nevada, and North Carolina encourage trial courts to permit juror questioning. In fact, Arizona, Florida, and Indiana have developed specific rules of procedure and/or evidence mandating that jurors be allowed to ask witnesses written questions. Both the Indiana and Kentucky Supreme Courts have declared that questioning witnesses is a juror's right. (31) Only Mississippi forbids the practice in its entirety, although Georgia, Texas, Nebraska, and Minnesota have partial prohibitions, primarily in criminal cases.

On the federal level, a majority of the federal circuit courts have voiced their reservations about juror questioning, although they all permit the practice. In voicing their disapproval, the First Circuit, in United States v. Sutton, said that "juror participation ... should be the long-odds exception, not the rule." (32) In United States v. Ajrnal, (33) and United States v. Bush, (34) the Second Circuit ruled that the practice is at the discretion of the trial judge, but they "strongly discourage its use." Additionally, the Sixth Circuit, (35) Seventh Circuit, (36) and Eighth Circuit (37) also discourage juror questioning. Furthermore, the Third Circuit allows the practice after judicial screening of the questions, but stated, "the dangers of allowing jurors to ask questions orally far outweighs any perceived benefit of allowing juror questioning of witnesses." (38) The Fourth Circuit also permits juror questioning, but said the practice is "fraught with dangers which can undermine the orderly progress of the trial to verdict." (39)

The Ninth Circuit allows the procedure, but warns that juror questions should not be...