by Thomas Lundy

(October 2002)

    While it is not uncommon to permit the jury to submit questions to witnesses, there are competing considerations as to whether the jury should be affirmatively instructed on this right. Also, when such questioning is allowed numerous safeguards including special jury instructions may be appropriate to consider.

    The practice of jury questioning of witnesses is firmly rooted in both the common law and American jurisprudence. (See State v. Kendall (NC 1907) 57 SE 340, 341; Michael A. Wolff, Comment, A Survey of Theory and Use, 55 Mo. L.Rev. 817 (1990).) Hence, many federal and state jurisdictions have accepted the practice of jury questioning as a matter within the sound discretion of the trial judge. (See e.g., U.S. v. Bush (2nd Cir. 1995) 47 F3d 511, 514; People v. Cummings (CA 1993) 4 C4th 1233, 1305-06 [18 CR2d 796, 843]; State v. Culkin (HI 2001) 35 P3d 233 [screening of questions by trial judge answers most concerns associated with juror questioning]; State v. Graves (MT 1995) 907 P2d 963, 967; Flores v. State (NV 1998) 965 P2d 901, 901-03; State v. Johnson (UT 1989) 748 P2d 1135, 1144-45; State v. Hays (KS 1994) 883 P2d 1093, 1098-1101 [list of relevant citations] [trial court determines relevancy of question]; State v. Darcy (WI 1998) 581 NW2d 567, 580; 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.06A [Questions By Jurors] (2000).)

    However, the Minnesota Supreme Court has recognized a number of ways in which juror questions of witnesses may implicate the accused’s federal constitutional rights. (State v. Costello (MN 2002) 646 NW2d 204; see also Flores v. State (NV 1998) 965 P2d 901, 902.) Because many of the earlier cases cited above did not consider these federal constitutional issues counsel may wish to consider a renewed challenge to the practice based on the reasoning in Costello in states which have already approved the practice.

    Despite the common law basis for allowing juror-authored questions, there are both advantages and disadvantages to juror-authored questions. (See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 57 [Instruction On Juror Questioning Of Witness], Comment (University of Wisconsin Law School, 2000) [instruction committee declines to take position on whether juror questioning should be encouraged or discouraged]; see also Id., at Volume 4 Special Materials (SM) 8 [listing pros and cons].)

            A.    Benefits Of Juror Questions

    1. Increased juror attentiveness;

    2. The potential for jurors to more completely comprehend the evidence;

    3. The opportunity for trial attorneys to better understand the jurors’ thought processes and their perception of the case weaknesses;

    4. Greater juror satisfaction regarding their role at trial;

    5. Facilitation of juror resolution of issues important to them;

    6. Bringing out of relevant material lawyers missed; and

    7. Aiding jury deliberations by reducing the number of uninformed jurors or by resolving questions in the courtroom that would prolong or distract deliberations.

(See Flores v. State (NV 1998) 965 P2d 901, 901-03; see also U.S. v. Sutton (1st Cir. 1992) 970 F2d 1001, 1005, State v. Taylor (AZ 1976) 544 P2d 714, 716-17; Commonwealth v. Urena (MA 1994) 632 NE2d 1200, 1204 fn 5; WIS JI-Criminal (Wisconsin) [Instruction On Juror Questioning Of Witnesses] (University of Wisconsin Law School, 2000) p. 57.)

            B.    Disadvantages Of Juror Questions

    "Perhaps the most frequently cited drawbacks of the practice are that jurors may assign disproportionate weight to evidence elicited in response to their own questions and that jury- questioning transforms the adversary process into an inquisitorial process." (Flores v. State (NV 1998) 965 P2d 901, 902; see also U.S. v. Bush (2nd Cir. 1995) 47 F3d 511, 515 [transforms juror from neutral fact finder to inquisitor and advocate]; U.S. v. Ajmal (2nd Cir. 1995) 67 F3d 12, 15 [promotes premature deliberation and alters jury’s role from neutral fact-finder to inquisitor and advocate]; DeBenedetto v. Goodyear Tire and Rubber Co. (4th Cir. 1985) 754 F2d 512, 515-517; Morrison v. State (TX 1991) 815 SW2d 766, 768-69.) "Acting as inquisitors, jurors may stray from their prescribed role as neutral fact-finders and prematurely evaluate the evidence. Sometimes, attorneys refrain from raising objections to juror questions to avoid offending jurors. Inclusion of juror-initiated questions also raises concern that the government may satisfy its burden of proof beyond a reasonable doubt by means of juror-initiated evidence." (Flores, 965 P2d at 902; see also Costello, supra.)

    Other disadvantages of juror-posed questioning of witnesses are that:

    1. It disrupts trial strategy of the lawyers who intentionally left a question unasked;

    2. Jurors may anticipate where the case is going and jump ahead of the lawyers;

    3. It makes jurors less impartial and more partisan;

    4. Juror questions may be to the disadvantage of clients; and

    5. It disrupts or delays courtroom procedure and order.

(WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal Special Materials (SM) 8 [Juror Questioning Of Witnesses] (University of Wisconsin Law School, 2000); Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 6-2, pp. 6-3 through 6-5.)

    The matter of instructing the jury on questioning witnesses should be carefully evaluated. One of three options is available:

    "A judge can [1] say nothing about questions, [2] give an instruction forbidding such questions, or [3] give an instruction allowing them." (Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 2 [Questioning Of Witnesses By Jurors] commentary (1988).)

    The view that juror questions should not be invited has been explained as follows: "[I]t is preferable to follow the procedures outlined in WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.66 [Questions By Jurors Addressed To Witnesses] (West, 2nd ed. 1994), especially the practice of instructing the jury on the subject only if a juror expresses a desire to question a witness. Potentially serious problems could arise from juror questions. In some instances, the adversarial procedure of a trial could be compromised." (State v. Munoz (WA 1992) 837 P2d 636, 640; see also State v. Hays (KS 1994) 883 P2d 1093, 1098-1101.)

    On the other hand, the view that questions should be invited has been stated as follows: "Jurors should be given preliminary instructions advising them of the right to ask questions and explaining the procedure to be used. ... After a witness is interrogated by counsel, but before the witness leaves the stand, the jurors are asked if they have any questions." (State v. Darcy (WI 1998) 581 NW2d 567, 580.)

    Allowing trial counsel to pose juror-authored questions to witnesses gives the party represented by that attorney an unfair advantage. In criminal proceedings this practice may abridge the defendant's constitutional rights to due process and a fair trial under the 5th, 6th and 14th Amendments to the U.S. Constitution. (See Wardius v. Oregon (1973) 412 US 470, 473-74 [93 SCt 2208; 37 LEd2d 82].)

    Hence, the trial judge, rather than counsel or jurors, should pose questions to the witness. (People v. Majors (CA 1998) 18 C4th 385, 433 [75 CR2d 684] (Mosk, J., concur. and diss.) [preferable for the trial court to rephrase the question in appropriate form and ask it of the witness]; State v. Hays (KS 1994) 883 P2d 1093, 1102; State v. Graves (MT 1995) 907 P2d 963, 967; State v. Darcy (WI 1998) 581 NW2d 567, 580; but see Flores v. State (NV 1998) 965 P2d 901, 902 [permitting prosecutor to ask juror-authored questions did not violate defendant’s due process rights, since other safeguards ensured a fair trial]; People v. Majors (CA 1998) 18 C4th 385, 407 [75 CR2d 684] [judge properly allowed prosecutor to state questions to witnesses since the prosecutor called most of the witnesses].)

    No juror ever may pose questions orally to a witness at any time during the trial.

[Source: Yeager v. Greene (DC App. 1985) 502 A2d 980, 1005.]

    The only persons who may ask questions of witnesses are the lawyers and myself. You are not permitted to ask questions of witnesses.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS No. 2 [Questioning Of Witnesses By Jurors] Alternative A (1988).]

[Optional Addition to Preliminary Instruction]

    Generally only the lawyers and I ask questions of witnesses. If you feel that an important question has not been asked, you may put the question in writing and have it handed to me. I will then decide if the question is a proper one. If it is, I will ask the question of the witness.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 2 [Questioning Of Witnesses By Jurors] Alternative B (1988).]

    Occasionally a juror feels that an important question has not been asked. Now I am not encouraging any of you to pose questions to the witnesses in this case. However, if it happens during trial that you feel an important question has not been asked, you may write out the question on a blank piece of paper from your notebook, raise your hand when the lawyers are finished with their examination of the witness, and have the question handed to me.

[Source: Yeager v. Greene (DC App.1985) 502 A2d 980, 1005.]

    This Court does not have a rule against the asking of questions by jurors. The Court does, however, impose some guidelines that govern the asking of questions. Please withhold any questions until after a witness has completed his or her testimony. Do not interrupt the examination of a witness in order to ask a question. When a witness has finished his or her testimony, then if there is some substantial question in your mind, you may address an inquiry to the witness by writing the question on a piece of paper, and passing it to the courtroom deputy. If your question is an appropriate one, I will ask it of the witness, and I will then permit counsel for the parties to ask any appropriate follow-up questions.

[Source: U.S. v. Collins (6th Cir.2000) 226 F3d 457, 460.]