Should the Jury Ask Questions?
We’ve written before about shadow juries, a way of using in-court focus groups to get real time feedback on how a trial is going and what a jury (may) be thinking. These tools, along with conventional focus group testing before trial, are important because it is genuinely hard to figure out how effective a trial presentation is. This difficulty in measurement is not just true of persuasion (am I convincing these folks?). It’s at least as true for education too (does the jury have any idea what’s going on?).
Once deliberations begin, you start to get small inklings of what the jury is thinking, in the form of questions to the court and requests for exhibits or readbacks. But by that time, it’s too late! If the jury doesn’t know your client’s name or how he or she was done wrong by the time it starts deliberating, it isn’t going to figure it out in the jury room.
What you’d like is real time feedback from the actual jury throughout the trial. If the jury is interested in a witness’s testimony or confused about something the witness said, you’d like them to ask questions right then and there. But can you get that? The answer is yes, sometimes. But the inconsistent and tentative adoption of procedures to permit jurors to ask questions of witnesses remains a perennial quirk of the American judicial system.
On some level, there is nothing new about jurors making inquiries to inform their verdicts. In the earliest days of juries under the common law, of course, jurors were expected to decide disputes, based, in large part, on their own knowledge of the parties and communities at issue. The oath that they took as jurors to deliver a verdict was less about promising to “do their best” and more a pledge to honestly answer a question that, as members of the relevant community, they could be expected to find out the answer to.
But even if we focus on trials as we would recognize them, in more modern eras, you can almost always find examples of jurors calling out for information during trial. [1] Sometimes this was expressly permitted and sometimes it just happened. There is a case in 1860s New York addressing an unsanctioned question called out by a juror, and another in Missouri where jury questions were explicitly permitted.[2] Indeed, prior to the 20th century, it appears that American courts at least believed that jury questioning was an option available to them. For example, in 1907, the North Carolina Supreme Court claimed that its trial courts had “always” had the discretion to permit juror questions when deemed appropriate by the judge. [3]
But while you can find examples throughout history, the practice has never been terribly common in the United States and remains controversial to this day. Four states ban jury questioning outright and even those that permit it often strongly discourage the practice. [4] For example, in State v. Longjaw, decided just three years ago, the Court of Appeals of Oregon was harshly critical of juror questioning in a criminal case, calling it a “controversial” practice and noting that other states ban it “because of the serious risks that it poses to the adversarial process.” [5]
On the federal level, all Circuits officially permit juror questioning, at the discretion of the trial judge. The Fifth Circuit is perhaps most approving of the practice, writing:
There is nothing improper about the practice of allowing occasional questions from jurors to be asked of witnesses. If a juror seems unclear as to a point in the proof, it makes good common sense to allow a question to be asked about it. If nothing else, the question should alert trial counsel that a particular issue may need more extensive development. [6]
But while technically permissible throughout the federal system, most other circuits have criticized or counselled against the practice with the Second Circuit noting that it “strongly discourage[s] its use” [7] and the Fourth Circuit calling it “fraught with danger.” [8]
Why the controversy? There are a number of arguments commonly made against juror questions. The first is that, unfamiliar with the rules of evidence or constitutional law, jurors could inadvertently ask questions that generate reversible error, at least in criminal trials. This was the situation in Longjaw, where a juror asked a police detective whether the suspect in a homicide had consented to a DNA test – something a prosecutor would not be permitted to do. This problem is compounded by the fact that no party really wants to object to a question asked by a juror, for fear of offending or alienating that juror for the rest of trial.
The second argument relates to the burden of proof. This theory, as expressed in Idaho Judge Smith’s very directly-titled article “Why I Do Not Let Jurors Ask Questions in Trials” [9] is that if jurors elicit testimony from witnesses, even as a clarification, they are somehow “assisting” the party with the burden of proof – who might not otherwise have met it – and thereby diminishing or otherwise lowering that burden. It is unclear how this argument grapples with the fact that judges themselves already also ask clarifying questions at trial, but nevertheless it is made with some frequency.
The third argument, a flavor of folk psychology, is the notion that once jurors start asking questions, they will invariably abandon their neutrality and begin advocating for one side or the other, perhaps as a way to “win” against the witnesses they examine.
While these objections are not totally fanciful, the research done on the issues suggests that there are real benefits to permitting juror questioning and that what downsides exist can be managed with the right procedure. The most notable of these research efforts is the Seventh Circuit American Jury Project, an initiative that tested out a variety of proposed modifications to ordinary trial procedure and published its findings in 2008. [10] The project surveyed participants (judges, jurors, and counsel) about their experiences and impressions in thirty-eight trials where juror questioning was permitted.
The overwhelming majority of judges (74%) reported that juror questioning increased the fairness of the trial and even more (77%) reported that juror questioning helped increase juror understanding of the matters at issue. A small number (23%) reported that trials were less efficient when jurors could pose questions, but most believed that questioning had no perceivable impact on efficiency. And jurors were even more positive, with 83% reporting increased understanding.
To avoid potential error from improper jury questions, the project developed a procedure to screen questions outside the presence of the jury before they were asked, and informed the jury that sometimes questions would be modified or excluded on legal grounds. This enabled counsel to avoid objecting in front of the jury itself and did not put the burden on the judge to make snap decisions while the jury watched. After some revisions, the instruction was as follows:
In this trial we are using a procedure that you may not have seen before. As members of the jury, you will be permitted to submit questions for a witness after the lawyers have finished questioning the witness. Here is how the procedure works: After each witness has testified and the lawyers have asked all of their questions, I will turn to the jury to see if anyone has any additional questions. If you have a question, you should write it down and give it to the court staff.
You may submit a question for a witness to clarify or help you understand the evidence. Our experience with juror questions indicates that a juror will rarely have more than a few questions for one witness, and there may be no questions for some witnesses.
If you submit a question, the court staff will provide it to me and I will share your questions with the lawyers in the case. If your question is permitted under the rules of evidence, I will read your question to the witness so that the witness may answer it. In some instances, I may modify the form or phrasing of a question so that it is proper under the rules of evidence. On other occasions, I may not allow the witness to answer a question, either because the question cannot be asked under the law, or because another witness is in a better position to answer the question. Of course, If I cannot allow the witness to answer a question, you should not draw any inferences from that fact, or speculate on what the answer might be.
Other empirical research has confirmed similar benefits, including increased juror satisfaction with the trial process and greater juror attentiveness during trial. [11] Moreover, the notion that jurors would abandon their neutrality or decide cases based on irrelevant issues appears largely unsupported in the literature. [12]
While there is still notable resistance from the judiciary, the tide may finally be turning on the issue. A 2021 survey of judges on the topic found 48% in favor – not a majority, but high given the negative appellate guidance. [13] And two states, Florida and Arizona, actually now require that jurors be given the chance to ask questions. [14] Though changes to jury procedure are frequently slow, this does suggest that it is worthwhile to at least request a jury question instruction in jurisdictions that allow it. There is no guarantee that the court will approve, but if you want real time insight into jury comprehension (and you should!) it cannot hurt to ask.
[1] Michael A. Wolff, Juror Questions A Survey of Theory and Use, 55 Mo. L. Rev. 817, 817-18 (1990).
[2] Id.
[3] State v. Kendall, 143 N.C. 659 (1907).
[4] Specifically, Texas, Mississippi, Nebraska, and Minnesota. See Alayna Jehle et al., Controversy in the Courtroom: Implications of Allowing Jurors to Question Witnesses, 32 Wm. Mitechell L. Rev. 27, 55 (2005).
[5] 508 Or. App. 487 (2022).
[6] United States v. Callahan, 588 F. 2d 1078 (5th Cir. 1979).
[7] United States v. Bush, 47 F.3d 511 (2d Cir. 1995).
[8] DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512 (4th Cir. 1985)
[9] Judge N. Randy Smith, Why I Do Not Let Jurors Ask Questions in Trials, 40 Idaho L. Rev. 553 (2004).
[10] Seventh Circuit American Jury Project, Final Report (2008) Available at: https://www.uscourts.gov/file/document/seventh-circuit-american-jury-project-final-report
[11] Alayna Jehle et al., Controversy in the Courtroom: Implications of Allowing Jurors to Question Witnesses, 32 Wm. Mitechell L. Rev. 27, 40-44 (2005).
[12] Id.
[13] Charles P. Edwards, et al., Judges’ Sentiment Toward Allowing Jurors To Question Witnesses: Historic and Modern Concerns, 90 UMKC L. Rev. 275, 281 (2021).
[14] Id. at 227.
