I recently read an article by Sarah Mui regarding whether judges should allow questions from jurors during a jury trial. The article brings up some interesting points.
In the original Boston Globe article that Ms. Mui references, a probation trial jury submitted 281 questions to the judge, many of which he posed to witnesses, some of which he did not address. There has been mixed reaction to allowing these questions from the jury.
Both articles quote from “one defense lawyer” Rosemary Scapicchio, who characterized juror questions as a “dangerous step” and who does not believe juror questions should be allowed, because it requires a juror to advocate for one side or the other without having heard all of the evidence.
I respectfully disagree with Ms. Scapicchio’s opinion, at least as far as civil trials go.
In Washington State, courts allow jurors to submit written questions, following the testimony of each witness, to the bailiff who in turn hands them to the judge. The juror submitting such questions is not identified in the question (although the attorneys can see who hands up a question to the bailiff, especially if there are only one or two questions).
After reviewing those questions and discussing them with counsel, the judge asks the attorneys whether they object or agree to allow each juror question submitted. Depending upon the nature of the questions and any objections or comments from counsel, the judge may read juror questions as written, may paraphrase them or may simply ignore objectionable questions.
Some juror questions are directed to the testifying witness and some to the judge. Some juror questions directed to the witness are good questions and show that the juror is giving good thought to the issues in the case. Sometimes, they sound like they are from a plaintiff or defendant, and those can often cut both ways for or against either party.
But to the extent the judge allows questions for the witness (which the judge asks the witness on behalf of a juror) they help the court (and the parties) ferret out the issues. This “pressure” from jurors should inspire attorneys to make sure they are very prepared on the issues before going to trial. There are always surprises at trial, but thorough preparation will minimize them.
I find juror questions to be a valuable tool during trial. Ultimately, the jury will be deciding the case, and if they have questions or concerns I’d like to know about them during the trial so I can try to address them during trial. Without direct feedback from the jury, it can sometimes be difficult knowing how the jury is absorbing or receiving the information the attorneys are trying to communicate to them with witnesses and exhibits.
One criticism of allowing juror questions involves the risk that a question could prejudice or adversely affect other jurors on the case. That is not a valid criticism because during deliberations any juror can ask whatever questions he or she may have about the case or the trial evidence, and the attorneys will never know what questions are asked or what responses are given. Thus, the risk of such a question is not lessened by eliminating juror questions. On the other hand, if such a question is asked during trial, the attorneys and judge have an opportunity to address it.