Go “Survivor” Style: Jurors Should be Allowed to Voice in Court When the Time is Right

In CBS’s hit reality game show “Survivor,” 7-9 eliminated players will form a “jury” at the final Tribal Council and interrogate the last two or three survivors to help them decide who deserve to be the "Sole survivor" of the show. The “jurors” usually ask questions related to facts that caused their own vote-off or facts that support the survivors’ arguments that he or she should be the million dollar winner of the show. The jurors then cast their votes for the ultimate decision.

In the real judicial world, juror’s role is much less active.  Juror questioning, although uncommon, but is allowable in the US. In Federal Courts, the practice of juror questioning was first permitted by a federal appellate court in United States v. Witt in 1954. A Circuit Court held that the trial court has discretion to allow or disallow juror questioning, because, according to a prior Supreme Court decision, a trial judge’s most important duty is to see that the facts are properly developed and clearly understood by the jury. The Texas statutes and court decisions also permitted trial judges to question witnesses and allowed jurors to submit written questions to witnesses or to the court during deliberations.

However, in most cases, jurors have been sit through trial as silent observers of an oftentimes technical dialogue between lawyers, judges and witnesses. In most courts, jurors have had to keep their curiosity, concerns, or even confusions to themselves. The underlying rationale is that, by definition, jurors are not active participants in the adversary system, but merely observers. They are instructed not to deliberate or discuss the case, even among themselves, until the evidence is closed and closing arguments have been completed. Further to this notion, the most frequently stated criticisms of jury questioning can include: trial delay, premature deliberation by jurors, development of bias by jurors, reluctance of attorneys to object to juror questions because of the fear of offending jurors, satisfaction of the government’s burden of proof beyond a reasonable doubt by means of juror-initiated evidence, assignment of disproportionate weight by jurors to evidence elicited in response to their own questions, and transformation of the adversary process into an inquisitorial process.

On the other hand, one study by Professor Friedland of the Nova Law Center, among other advocates of juror questioning, has shown that allowing jury involvement not only makes the process more satisfying for the individual jurors, but also reinforces the conceptual legitimacy of the verdict. Jury questioning reallocates the division of power between the judicial system and the people by providing an “active check” on the judicial process. A more active jury would supplement and clarify the attorneys’ questions, thus taking away some of the attorney’s inherent power.

Therefore, although allowing jury questioning has the potential for introducing prejudice, delay, and error into the trial. The practice of juror questioning—though must be limited and used with caution—should not be entirely impermissible. Like the final Tribal Counsel questioning section shortly before the "jury deliberation" in “Survivor,” the real jurors should also be allowed to submit questions during deliberation for making final clarification of facts to help them make up their minds. And by allowing jurors to submit questions only during deliberation, the effects of prejudice, delay, and error into the trial can be confined to its minimum.