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16.9 Questions To Witnesses By Jurors

     16.9.1 Juror Questions To Witnesses: Procedural Issues

    16.9.1.1 Propriety Of Permitting Jurors To Submit Questions For Witnesses; Instructional Safeguards To Consider If Juror-Authored Questions Are Allowed
    16.9.1.2 Should Trial Courts Inform Jurors That They May Pose Questions For Witnesses?
    16.9.1.3 Improper For Trial Counsel To State Juror Questions
    16.9.1.4 Counsel Should Be Given An Opportunity To Object, Outside The Jury's Presence, To Questions Posed By Jurors
    16.9.1.5 Counsel Should Be Entitled To Cross-Examine Witnesses Following Juror Questions
    16.9.1.6 Questions By Jurors: Undermining Of Prosecution's Burden Of Proof
    16.9.1.7 Federal Constitutional Challenge To Submitting Juror Questions To Witness

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RATIONALE: 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.

POINTS AND AUTHORITIES:  Common Law Roots Of Allowing Juror-Authored Questioning Of Witnesses.  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.

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.)

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.

    Should Trial Courts Inform Jurors That They May Pose Questions For Witnesses? 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.)

    Whether Trial Counsel Or The Judge Should Pose The Juror-Authored Questions. 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].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 7.1; 7.5].

See also Manual On Recurring Problems In Criminal Trials [16. Jury Questioning Of Witnesses].

See also A Manual On Jury Trial Procedures [3.5.1 Juror Questions During Trial: General Principles].

See also A Manual On Jury Trial Procedures [3.5.2 Juror Questions During Trial: Practical Suggestions].

See 8th Circuit Model Jury Instructions - Criminal 1.06A.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 2.

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

[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.

[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.

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

    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.

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

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PRACTICE NOTE: Two views regarding whether the jury should be invited to ask questions are the following:

Should Not Be Invited: "[I]t is preferable to follow [cautionary] procedures . . . [outlined in the Washington pattern instruction], 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.)

Should Be Invited: "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.)

    See also NCJIC 16.9.1.1 [Propriety Of Permitting Jurors To Submit Questions For Witnesses; Instructional Safeguards To Consider If Juror-Authored Questions Are Allowed].

See also Manual On Recurring Problems In Criminal Trials [16. Jury Questioning Of Witnesses].

See also A Manual On Jury Trial Procedures [3.5.1 Juror Questions During Trial: General Principles].

See also A Manual On Jury Trial Procedures [3.5.2 Juror Questions During Trial: Practical Suggestions].

See 8th Circuit Model Jury Instructions - Criminal 1.06A.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 2.

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    16.9.1.3    Improper For Trial Counsel To State Juror Questions

PRACTICE NOTE: 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. (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]; People v. Cummings (CA 1993) 4 C4th 1233, 1305 [18 CR2d 796] [rejecting a claim that permitting a party to ask the jurors' questions allowed that party 'to curry favor with individual jurors'].)

See also Manual On Recurring Problems In Criminal Trials [16. Jury Questioning Of Witnesses].

See also A Manual On Jury Trial Procedures [3.5.1 Juror Questions During Trial: General Principles].

See also A Manual On Jury Trial Procedures [3.5.2 Juror Questions During Trial: Practical Suggestions].

See 8th Circuit Model Jury Instructions - Criminal 1.06A.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 2.

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    16.9.1.4    Counsel Should Be Given An Opportunity To Object, Outside The Jury's Presence, To Questions Posed By Jurors

PRACTICE NOTE: If a trial court decides to allow juror questions, notice and an opportunity to object should be given to counsel, outside jurors’ presence. (See e.g., U.S. v. Cassiere (1st Cir. 1993) 4 F3d 1006, 1018 [court should inform counsel at earliest possible time; court should offer sidebar conference]; State v. Hays (KS 1994) 883 P2d 1093, 1102 [counsel should be afforded the opportunity to object outside the presence of the jury].) It is important that objections be heard outside the jurors’ presence to avoid any risk of juror resentment or bias against the objecting party, hand to prevent exposure of jurors to prejudicial, irrelevant or inadmissible statements. (See Flores v. State (NV 1998) 965 P2d 901, 902-3; State v. Darcy (WI 1998) 581 NW2d 567, 577.)

Acker, "Standardized Procedures for Juror Interrogation of Witnesses," 1990 Univ. of Chicago Legal Forum 557.

See also Manual On Recurring Problems In Criminal Trials [16. Jury Questioning Of Witnesses].

See also A Manual On Jury Trial Procedures [3.5.1 Juror Questions During Trial: General Principles].

See also A Manual On Jury Trial Procedures [3.5.2 Juror Questions During Trial: Practical Suggestions].

See 8th Circuit Model Jury Instructions - Criminal 1.06A.

See also Federal Judicial Center, Pattern Criminal Jury Instructions Inst. 2.

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    16.9.1.5    Counsel Should Be Entitled To Cross-Examine Witnesses Following Juror Questions

    Failure to allow follow-up cross-examination may also implicate the defendant's federal constitutional rights to confrontation, compulsory process, due process and representation of counsel.  (See NCJIC 300.6.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].)

    See also NCJIC 300.27 [Effective Assistance Of Counsel].

See also Manual On Recurring Problems In Criminal Trials [16. Jury Questioning Of Witnesses].

See also A Manual On Jury Trial Procedures [3.5.1 Juror Questions During Trial: General Principles].

See also A Manual On Jury Trial Procedures [3.5.2 Juror Questions During Trial: Practical Suggestions].

See 8th Circuit Model Jury Instructions - Criminal 1.06A.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 2.

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PRACTICE NOTE: "Inclusion of juror-initiated questions ... raises concern that the government may satisfy its burden of proof beyond a reasonable doubt by means of juror-initiated evidence." (Flores v. State (NV 1998) 965 P2d 901, 902.)

    See also NCJIC 300.5 [Misinstruction On Burden Of Proof (Due Process/Trial By Jury)].

See also Manual On Recurring Problems In Criminal Trials [16. Jury Questioning Of Witnesses].

See also A Manual On Jury Trial Procedures [3.5.1 Juror Questions During Trial: General Principles].

See also A Manual On Jury Trial Procedures [3.5.2 Juror Questions During Trial: Practical Suggestions].

See 8th Circuit Model Jury Instructions - Criminal 1.06A.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 2.

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The most obvious problem with allowing jurors to question witnesses is the unfamiliarity of jurors with the rules of evidence. Our system is an adversary one which depends upon counsel to put before lay fact finders that which should be admitted in accordance with the rules of evidence and to keep from them that which should not be received in evidence.... Other potential problems include (1) Counsel may be forced to either make an objection to a question in front of the juror who asks the question, at the risk of offending the juror, or withhold the objection and permit prejudicial testimony to come in without objection; (2) juror objectivity and impartiality may be lessened or lost; (3) if a juror submits a question in open court, the other jurors are informed as to what the questioning juror is thinking, which may begin the deliberation process before the evidence is concluded and before final instructions from the court; (4) if the juror is permitted to question the witness directly, the interaction may create tension or antagonism in the juror; and (5) the procedure may disrupt courtroom decorum. [Citations and internal quotation marks omitted.]  (Id. at 990. See also Bush, supra, at 515-516.)

RESEARCH NOTES: Berkowitz, Breaking the Silence: Should Jurors be Allowed to Question Witnesses during Trial? (1990).

Sylvester, Your Honor, May I Ask A Question? The Inherent Dangers of Allowing Jurors to Question Witnesses (1990).