A MANUAL OF JURY TRIAL PROCEDURES

A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Three: The Trial Phase

3.5 Juror Questions During Trial

NCJIC Materials Related To This Issues:

NCJIC 16.9 [Questions To Witnesses By Jurors]

There may be occasions where a juror desires to ask a question of a witness. The court has discretion in permitting or refusing to permit jurors to ask questions. United States v. Huebner, 48 F.3d 376, 382 (9th Cir. 1994), cert. denied, 516 U.S. 816 (1995); United States v. Gonzales, 424 F.2d 1055, 1056 (9th Cir. 1970) (no error by trial judge in allowing juror to submit question to court).

Questions by jurors during trial should not be encouraged or solicited. DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 517 (4th Cir. 1985) ("[J]uror questioning is a course fraught with peril for the trial court. No bright-line rule is adopted here, but the dangers in the practice are very considerable.") The court in DeBenedetto explained the hazards of jury questioning and the reasons such questioning may not only be improper but also prejudicial to the point of necessitating a mistrial or reversal on appeal. See also United States v. Ajmal, 67 F.3d 12, 14 (2d Cir. 1995) ("[a]lthough we affirm our earlier holding . . . that juror questioning of witnesses lies within the trial judge's discretion, we strongly discourage its use") (citations omitted); United States v. Sutton, 970 F.2d 1001, 1005 (1st Cir. 1992) ("In most cases, the game will not be worth the candle" and "juror participation should be the long-odds exception, not the rule"); United States v. Nivica, 887 F.2d 1110, 1123 (1st Cir. 1989) (the risks associated with juror questioning of witnesses is compounded in criminal cases), cert. denied, 494 U.S. 1005 (1990).

Practical Suggestions

Juror Questions

In the event a juror does ask a question, either during testimony or in writing during recess, the following is a recommended procedure:

1. Refuse to take the question during testimony, but require that the question be set forth in writing at the next recess with the explanation that proper sequence of questioning as well as the rules of evidence require that the court determine if the question is proper. This procedure will allow the judge to examine the question and discuss it with counsel.

2. If the question is improper, the jury can be told that the rules of evidence do not allow the question.

3. If the question is proper, counsel for the parties may wish to ask the question. If the parties do not wish to ask the question, but do not have a legitimate objection to the question, the judge may ask the question. In either case, the jury can be advised that the question will be asked or will not be asked.

4. It is recommended that whenever a juror's question is asked it should be made by counsel or the judge, not the juror.

5. Extreme caution should be exercised in permitting questions from the jury in criminal cases. If questions are to be permitted, the court should advise the jurors of the procedures to be followed prior to any witnesses being called.