Should jurors be permitted to question witnesses?

The idea initially makes me a bit nervous – who knows what questions would arise and how do you un-ring the bell when a prejudicial or inadmissible topic comes up?  But it does make sense.  The jurors are the decision-makers and there is no doubt that their minds are full of questions throughout the process.  If the attorneys don’t ask the questions that the jurors want to hear, the jurors are going to feel like they are flying blind and being asked to make a decision without the information they need.

In an article written by Ellen Chilton and Patricia Henley (I’m not sure the date of the article), they point out that, traditionally, in what was once an inquisitorial system, jurors were permitted to question the witnesses and it was a normal part of the truth-finding process.  However, in our current adversarial system, juror participation in the trial is discouraged or denied.

Centuries ago, juries were viewed as inquisitive bodies and jurors were allowed to question witnesses both outside and inside the courtroom. As the modern legal profession developed, the adversarial system of litigation dominated, and jurors gradually took on a less active role in trials. Jurors became “passive fact finders” instead of independent investigators of the facts. Rules of evidence were developed to limit the information the jury received, and, eventually, jurors were not allowed to question witnesses at all

In a few states, jurors are expressly prohibited from asking questions by judicial decision. The Nebraska Supreme Court, in State v. Zima, [1] disallowed juror questioning on the ground that such a practice departs from the traditional adversarial nature of judicial proceedings and may violate the party’s due process right to an impartial jury. Georgia’s supreme court has also disallowed juror questioning of witnesses in State v. Williamson, [2] where it reasoned that jurors may be personally offended if attorneys object to their questions, and that this may be a basis for prejudice. Finally, in Morrison v. State, [3] the court concluded that allowing jurors to submit questions to witnesses results in reversible error per se because it undermines the adversarial system by distorting the jury’s fact-finding role and leading jurors to assume the role of advocates.

There is now a developing trend towards allowing jurors to ask questions and to participate in the trial process, albeit with limits.  In S.C. and probably most states, it is normal for a jury to come back with a question or questions for the court during deliberations – it may be a question that can be answered by restating the law that applies to the case or by re-playing a witness’ testimony, but questions that involve interpreting the evidence or questions that involve facts that are not in evidence will not be answered.  During the trial itself, no juror questions are permitted.  I don’t think we have a rule or case that expressly disallows it, although we may.  Regardless, it is not allowed.

Many states now permit jurors to submit questions that they have for the witnesses.  Arizona, Washington, California, Florida, New Hampshire (with the consent of all parties), Idaho (in the court’s discretion), Massachusetts, Indiana, Oklahoma, South Dakota, and now Illinois are examples of states allow the submission of written questions from the jurors.  Some are in the court’s discretion and some are expressly provided for in the rules of procedure.  I haven’t researched how many states allow it and I’m sure there are more that I did not list, but the point is that it seems to be on the track to becoming an accepted practice throughout the country.

The procedure seems to be to allow the jurors to submit written questions if they wish, at the end of the witness’ testimony.  The Court will allow the attorneys to object outside the presence of the jurors and the question may or may not be allowed – if the question is not allowed the jury is instructed to draw no inference from the fact that the question was not permitted.  Illinois’ new rule follows this format:

243. Written Juror Questions Directed to Witnesses

      (a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions directed to witnesses.

      (b) Procedure. Following the conclusion of questioning by counsel, the court shall determine whether the jury will be afforded the opportunity to question the witness. Regarding each witness for whom the court determines questions by jurors are appropriate, the jury shall be asked to submit any question they have for the witness in writing. No discussion regarding the questions shall be allowed between jurors at this time; neither shall jurors be limited to posing a single question nor shall jurors be required to submit questions. The bailiff will then collect any questions and present the questions to the judge. Questions will be marked as exhibits and made a part of the record.

      (c) Objections. Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon them at that time and the question will be either admitted, modified, or excluded accordingly.

      (d) Questioning of the Witness. The court shall instruct the witness to answer only the question presented, and not exceed the scope of the question. The court will ask each question; the court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.

      (e) Admonishment to Jurors. At times before or during the trial that it deems appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules of evidence that govern the case.

I can see several obvious benefits to allowing the practice.  It helps the attorneys on both sides of a case because, even if a question is not allowed, the attorneys know what information the jurors are looking for and what they need to make their decision.  It helps the jurors because they are allowed to ask for the information that they need to make their decision.  It benefits the integrity of the system as a whole, because it can only further the truth-finding function of the jury and the trial process as a whole.

More discussion:

Improving the Jury System. Ellen Chilton & Patricia Henley

Juror Questions During Trial: A Window into Jury Thinking.  Shari Seidman Diamond, Mary R. Rose, and Sven Smith.

Juror’s Unanswered Questions.  Shari Seidman Diamond, Mary R. Rose, and Beth Murphy.

What are your juror’s thinking?  Elliot Wilcox at Trial Theatre.

2 Responses to “Should jurors be permitted to question witnesses?

  • I’ve been railing against jurors questioning witnesses for years, ever since a local judge started doing it. (Along the way, the Ohio Supreme Court approved it, but left it to the discretion of the judge, so mostly it doesn’t happen.) I know lots of lawyers who like it, and I can see why. But my view is that it’s simply unconstitutional, violative of our adversary system. Trials, as I’ve said over and over, aren’t about truth, they’re about proof. The question is whether the party who has to prove something (which can sometimes be the defendant, of course, in say affirmative defenses) has met its burden. But when the jury gets to inquire, it’s helping (or hindering, of course) meet that burden.

  • That makes sense. Having never had it happen, I can only guess if I would like it or not – once the courts start allowing it, it may be like Pandora’s box. But – seems like adding some chaos/unpredictability would help the defense more often than not.

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