Jury Summons

Jury Summons

Thursday, October 30, 2014

"Could Not Ask For More"1: Juror Questioning of Witnesses During Trial

An exciting reform to the jury process is allowing the jurors to ask witnesses questions.  Most states allow judges to pick whether they are going to allow this, but 11 states prohibit it.  Arizona has permitted jurors to ask questions since 1992.  And only Arizona, Indiana, and Colorado allow jurors to ask questions during criminal trials.  The advantages and disadvantages of this reform are hotly debated.

Anecdotally, a few Arizona attorneys gave reasons why they like the reform in this article:
“I think (the practice) has resulted in fewer hung juries,” Eazer said. “I think issues that might have hung them up before are getting resolved.” 
“It's amazing how some of the most obvious questions escape the notice of everyone involved in the process,” Fields said. “They usually result in some sort of constructive progress.” 
This reform also aids counsel in arguing a case successfully.  The lawyers will benefit from the jurors questions and subtle communications because the lawyers will be able to determine if their presentation is confusing or not effective based on the jurors’ questions. [2]  Also, jurors’ questions could reveal a “bias or improper considerations . . . that if left undiscovered or unchecked would taint the jury’s deliberations.”[3]  An example of this would be if a juror asked if a defendant had insurance, which could trigger the court to explain again what the jury can or cannot consider.[4]

Andrea Krebel of The Jury Expert praises this reform, but lists some potential disadvantages, such as making the trial longer, causing attorney’s strategy to suffer, making jurors feel angry or embarrassed when their question is not answered, and encouraging jurors to weigh their questions more heavily than other questions.  However, in general, the empirical evidence does not find that these things affect the jury negatively.

According to the same article, these potential disadvantages are not to be feared.   In fact, juror questions can help with confusing cases, such as patent cases.  Jurors can ask for clarifying information about issues they are confused about directly from the witnesses, and the lawyers can seek to clarify further with future witnesses.  In addition, if jurors ask questions during the trial (not every jury asked questions in study-trials where it had the power to), the lawyers can have a glimpse of what issues the jurors think are important and can tailor arguments to better fit what the jury in interested in. 

Finally, Krebel advises how to ask a judge to allow questions.  In many states, it is up to the judge whether juror questions will be allowed, so lawyers should ask during the pre-trail conference when discussing trial procedure.  If the judge is resistant, lawyers should be familiar with the case law and rules governing questions and can even show the judge the empirical studies (and blog posts!) embracing the reform.

This reform is gaining credibility, and I think judges should allow juror questions in the courtroom because of the potential advantages and because the supposed disadvantages are being disproven and can be managed.

[1]  "Could Not Ask For More" by Sara Evans
[2] A. Barry Cappello & G. James StrenioJuror Questioning: The Verdict Is InTrial 36.3, 45 (2000).
[3] Id.
[4] See id.

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