Improving the Trial Process for Jurors
IN EVERY CASE, JURORS SHOULD BE PERMITTED TO SUBMIT WRITTEN CLARIFYING QUESTIONS TO WITNESSES, SUBJECT TO CAREFUL JUDICIAL SUPERVISION. THE DECISION OF WHETHER TO PERMIT A QUESTION RESTS WITH THE JUDGE, ALTHOUGH COUNSEL RETAIN THE RIGHT TO OBJECT TO THE SCOPE OR CONTENT OF ANY SPECIFIC QUESTION. JURORS ARE NOT PERMITTED TO ASK ORAL QUESTIONS. THE RULES OF CIVIL PROCEDURE AND CRIMINAL PROCEDURE SHOULD BE AMENDED ACCORDINGLY.
Allowing Jurors to
Jurors should be allowed to ask questions during civil and criminal trials, subject to careful judicial supervision. Permitting jurors’ questions acknowledges the importance of the role of jurors as active learners and active participants in the search for the truth, promotes efforts to focus on the merits of a case rather than speculation, and avoids the real possibility of an erroneous verdict based on confusion or misunderstanding.
The procedure must include a number of safeguards. Before testimony begins, the court should instruct the jury that:
- The sole purpose of jurors’ questions is to clarify the testimony, not to express any opinion about it or to argue with the witness;
- Jurors are to remember that they are not advocates and must remain neutral fact finders;
- Jurors are to submit questions in writing, without discussion with fellow jurors, and are to leave them unsigned; oral questions are not allowed;
- There are some questions that the court will not ask, or will not ask in the form that a juror has written, because of the rules of evidence or other legal reasons or because the question is expected to be answered later in the case;
- Jurors are to draw no inference if a question is not asked—it is no reflection on either the juror or the question;
- Jurors are not to reveal to other jurors a question that was not asked by the judge or speculate as to its answer or why it was not asked; and
- Jurors are not to interpret this instruction as meaning that the court is encouraging jurors’ questions.
The court should take the following steps when allowing jurors to propose questions:
This recommendation is drawn primarily from American Bar Association standards, the recommendation of the National Center for State Courts, the Federal Judicial Center’s Manual for Complex Litigation, and an Arizona rule of civil procedure, which was adopted in 1995 as part of wide-ranging jury reforms in that state.
- At the conclusion of each witness’s testimony, the court asks if jurors have written questions, which are brought to the judge;
- Outside the presence of the jury, counsel are given the opportunity to make objections to the question or to suggest modifications to the question, by passing the written question between counsel and the court during a side-bar conference or by excusing jurors to the jury room;
- The judge asks the question of the witness;
- Counsel are permitted to ask appropriate follow-up questions; and
- The written questions are made part of the record.
to Propose Questions
Judges and attorneys who have used this procedure report that the great majority of juror questions are serious, concise, and relevant to the issues of the trial. Counsel also find the questions to be a useful gauge of how clearly they are explaining their case. Jurors who have been permitted to ask questions indicate the procedure kept them engaged in the proceeding and gave them greater satisfaction with jury service. Studies verify that the advantages to jurors and the trial as a whole outweigh the feared risks.
As the courts have observed, in the context of complex cases or complicated testimony,
[J]uror-inspired questions may serve to advance the search for truth by alleviating uncertainties in the jurors’ minds, clearing up confusion, or alerting the attorneys to points that bear further elaboration. Furthermore, it is at least arguable that a question-asking juror will be a more attentive juror.
United States v. Sutton, 970 F.2d 1001, 1005 n.3 (1st Cir. 1992). All federal appeals courts that have considered the issue and a significant number of state appellate courts have held that trial courts may permit jurors to submit questions to witnesses.
in the Pattern
In Washington, both civil and criminal pattern jury instructions provide for written questions by jurors. The Comment to both instructions indicates, however, that while the rules of evidence neither explicitly allow nor disallow the practice of permitting jurors to question witnesses, the procedure should not be encouraged because it usually interrupts the trial.
This concern is largely alleviated by the cautionary instruction and procedures outlined above. Moreover, many of the questions posed by jurors can be handled in a manner that is even less time-consuming than a side-bar conference. The more routine questions can easily be addressed by passing the note from the judge to counsel, with each writing down their reactions on the note.
in the Case Law
The Washington Court of Appeals has explicitly disapproved of the practice, but has not found that it constitutes reversible error. In State v. Munoz, State v. Monroe, and State v. Walker, Division I of the Court of Appeals has consistently observed that the active solicitation of juror questions is inappropriate. In each of these three cases, the court held that the court’s solicitation of questions was not error of constitutional magnitude.
The Monroe court disapproved of the practice because of a number of potential risks: (1) questions can act as improper communication between jury and counsel and generally favor the prosecutor because a question signals the jurors’ doubts and perceived weaknesses in the State’s case; (2) a juror’s question might provide “mental reactions” in other jurors, giving the question undue influence over the jury as a whole; (3) jurors may place undue significance on answers to questions by an influential juror; (4) one or more jurors may dominate the questioning process; and (5) questioning may cause jurors to begin the deliberative process before they have heard all the evidence.
Many of these concerns are minimized by using the cautionary instruction and procedures outlined above. The instruction cautions jurors about the proper purpose for their questions. Moreover, jurors are instructed at the beginning of the trial to withhold judgment until all evidence has been presented.
We believe that the experience in federal and state courts around the country confirms that juror questions are an important component of the truth-finding process. The recommended preliminary cautionary instruction to the jury and the controlled procedures described here address due process concerns. Because the Court of Appeals has disapproved the use of juror questions, we recommend that both the rules of civil procedure and criminal procedure be amended to authorize the procedure.
American Bar Association, Civil Trial Practice Standards, No. 4 (“Juror Questions for Witnesses”) (February 1998).
American Judicature Society, Toward More Active Juries: Taking Notes and Asking Questions (1991).
Ariz. R.Civ.Proc. 39 (providing a procedure for questioning by jurors).
B. Michael Dann, “’Learning Lessons’ and ‘Speaking Rights’: Creating Educated and Democratic Juries”, 68 Ind. L.J. 1229 (1993).
Federal Judicial Center, Manual for Complex Litigation 3d Sec. 22.42 (1995).
Larry Heuer & Steven Penrod, “Increasing Jurors’ Participation in Trials: A Field Experiment with Jury Note Taking and Question Asking”, 79 Judicature 256 (1996).
Saul M. Kassin & Lawrence S. Wrightsman, The American Jury on Trial: Psychological Perspectives (1988).
Kelso, “Final Report of the Blue Ribbon Commission on Jury System Improvement”, 47 Hasting L.J. 1433, 1507 (1996).
G. Thomas Munsterman, et al., Jury Trial Innovations, Sec. V-7 (3rd ed. 1997).
Washington Pattern Jury Instructions: WPI 6.12, WPIC 4.66 (Questions by Jurors Addressed to Witnesses).
State v. Munoz, 67 Wn. App. 533, 837 P.2d 636 (1992).
State v. Monroe, 65 Wn. App. 245, 828 P.2d 24, review denied 119 Wn.2d 1019 (1992).
State v. Walker, 1997 WL 599169 (unpublished 1997).
State v. Brinkley, 66 Wn. App. 844, 837 P.2d 20 (1992).
United States v. Sutton, 970 F.2d 1001 (1st Cir. 1992).
For a list of appellate court decisions holding that trial courts have discretion to allow juror questioning of witnesses, see pp. 12-13 of American Bar Association’s Civil Trial Practice Standards (February 1998).