Nancy Marder has published an interesting new article about allowing jurors to ask questions of witnesses during trial. Juror questions, along with other jury reforms such as note-taking and simplification of legal instructions, are intended to improve jurors’ comprehension of the evidence and the law, in the hopes that justice will be better served. While Marder argues in favor of expanding the use of juror questions, attorneys must be prepared for how questions from the jury might affect the case story the attorney is trying to tell.
Thirty states currently allow jurors to ask questions of witnesses during trial, although in most venues, allowing questions remains at the judge’s discretion. If the judge and attorneys decide to allow questions, jurors typically write their questions and submit them to the judge at the end of a witness’ testimony. The judge, in consultation with the attorneys, then determines which questions are appropriate, relevant, and legally permissible to ask. The judge then poses the questions to the witness.
(Interesting historical side note: Marder points out that allowing jurors to ask questions is not a new idea, but is rather a resuscitation of an old practice. In many venues across the country, nineteenth and early twentieth century jurors could ask questions at will in open court. These questions were known as “juror outbursts” and were consistently upheld on appeal. Only in the 1950s did courts begin to curb this practice.)
When preparing for a trial that includes juror questions, attorney must plan accordingly. Jurors’ questions can be unpredictable and raise the possibility of losing control over the message a witness is trying to convey. Including an experienced jury consultant in witness preparation can help identify any holes in the questioning and can give the attorney and the witness a better idea of what jurors may want to know more about. Mock trials and focus groups are also ideal opportunities to ask jurors what questions they would like to ask of the witnesses.
The ability of jurors to ask questions is also a reminder of the importance of telling jurors a clear and complete case story. Questions from the jury are most often the result of a witness’ failure to paint a complete picture during direct examination. Even if a judge decides that a juror’s question can not be asked, attorneys should still consider whether some sort of response can be included in the case. A recent incident suggests that jurors may react negatively if their questions are not answered.