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16.9 Questions To Witnesses By Jurors

     16.9.2 Juror Questions To Witnesses: Specific Instructions

    16.9.2.1 Jurors Should Not Submit Questions Until After Lawyers Have Completed Their Questioning Of The Witness
    16.9.2.2 Jurors Not To Draw Any Inference From Judge's Refusal To Ask Witness Juror- Authored Question
    16.9.2.3 Questions By Jurors: Safeguards And Cautionary Instruction
    16.9.2.4 Juror-Authored Questions To Witnesses Should Be Limited To Factual Clarification
    16.9.2.5 Jurors Not To Speculate About How The Witness Would Had Answered Juror- Authored Questions Not Allowed By The Court
    16.9.2.6 Jurors Should Not Give Disproportionate Weight To Answers To Their Own Questions
    16.9.2.7 Jurors Must Not Discuss, Prior To Deliberations, Questions They Submit To Witnesses
    16.9.2.8 Jurors Must Not Speculate About What The Answer To A Rejected Question May Have Been
    16.9.2.9 Jurors Should Not Address Questions To Witnesses Or Counsel Directly
    16.9.2.10 Final Instructions Should Repeat The Cautionary Instructions Regarding Juror Questions To Witnesses
    16.9.2.11 Allowing Juror Questioning Is Reversible Error Per Se 

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RATIONALE: Requiring jurors to defer submission of questions until counsel have completed questioning the witness reduces the likelihood that juror questions will duplicate issues which will be cleared up as the questioning of the witness proceeds.

POINTS AND AUTHORITIES: Any instruction as to juror questions should inform the jury of the option of proposing questions to the witnesses while at the same time assuring that any such inquiry is orderly and subject to the review and approval of the trial court. (See State v. Hays (KS 1994) 883 P2d 1093, 1095; Yeager v. Greene (DC App. 1985) 502 A2d 980; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 10.06 [Permitted] (West, 5th ed. 2000).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 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.

    This admonition does not preclude you from proposing questions to be asked of the witnesses provided you follow the proper procedures in doing so. 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 inquiry to the court. Please do not address either the witness or any lawyer, but confine your inquiry to the court.

    On the other hand, if you have difficulty in hearing a witness or a lawyer, please raise your hand immediately and the court will take corrective action.

[Yeager v. Greene (DC App. 1985) 502 A2d 980, 1001.]

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RATIONALE: If the judge does not ask the witness a question submitted by the jury, the jurors may improperly assume that this is a comment upon the evidence by the judge.

POINTS AND AUTHORITIES: If jurors are to be allowed to participate in the interrogation of witnesses in a criminal case, "the jury should be instructed that ... the rules of evidence may frequently require the judge to eschew certain questions." (U.S. v. Sutton (1st Cir. 1992) 970 F2d 1001, 1005; Flores v. State (NV 1998) 965 P2d 901; State v. Darcy (WI 1998) 581 NW2d 567.)

    See also NCJIC 16.9.2.8 [Jurors Must Not Speculate About What The Answer To A Rejected Question May Have Been].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 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 also 8th Circuit Model Jury Instructions - Criminal 1.06A.

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

    When I receive questions from a juror I am required to decide if they are legally proper just as I do with questions submitted by the attorneys.

    If I do not ask a question submitted by a juror, that means I have decided that it is not legally proper, just like I might sustain an objection to a question asked by a lawyer for the same reason. You must not speculate as to why the question was not asked of that the failure to ask the question in any way reflects my view of the evidence. You may not consider any failure to ask a question of the witness for any purpose.

    If I decide that the question deals with a legal issue, I may decide to wait until my final instructions and answer it then if it is relevant to your consideration of the case.

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

[To be given if court rejects a juror authored question as legally improper]

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PRACTICE NOTE: The due process concerns implicated by juror questions are profound. For example, juror questioning changes the jury’s role from neutral fact finder to inquisitor and advocate. (See U.S. v. Bush (2nd Cir. 1995) 47 F3d 511, 515; see also U.S. v. Cassiere (1st Cir. 1993) 4 F3d 1006, 1018 [practice should be reserved for exceptional circumstances, even in complex cases]; see also NCJIC 16.9.1.3 [Improper For Trial Counsel To State Juror Questions]; NCJIC 16.9.2 [Juror Questions To Witnesses: Specific Instructions].)

    Hence, courts have recommended or prescribed various sets of procedures and safeguards, to reduce the abridgement of due process rights resulting from the use of juror-authored questions. The sets of safeguards quoted below reflect the view of many courts that a multi-faceted, mutually reinforcing safeguards are necessary.

    "...[W]e suggest that, if jurors are to be allowed to participate in the interrogation of witnesses in a criminal case, counsel should be alerted to the court's intention at the earliest practicable time and given an opportunity to be heard in opposition to the practice. If the court elects to proceed, the jury should be instructed that questions are to be reserved for important points, that the rules of evidence may frequently require the judge to eschew certain questions, and that no implication should be drawn if a juror inspired question withers on the vine. The judge should also include a prophylactic instruction in his final charge to the jury.

    " ... Jurors should not be permitted to blurt out queries in the midst of trial. Rather, a screening mechanism should be set in place. To that end, we recommend that jurors be instructed to reduce their questions to writing and pass them to the judge. When such questions eventuate, the judge should ordinarily call counsel to sidebar, relate the particulars, and rule on the objections." (U.S. v. Sutton (1st Cir. 1992) 970 F2d 1001, 1005, n 3].)

    Suggested safeguards include:

    A.    Whether to allow questions lies within the judge’s discretion.

    B.    If the trial judge determines juror questions will be permitted, jurors should be given preliminary instructions advising them of the right to ask questions and explaining the procedure to be used.

    C.    After a witness is interrogated by counsel, but before the witness leaves the stand, the jurors are asked if they have any questions.

    D.    Questions are submitted in writing to the judge and are shown to the lawyers, who may object without the jury knowing of it.

    E.    The judge reviews the questions and any objections.

    F.    If the judge sustains the objection, the jury is advised that questions cannot be asked.

    G.    If the judge overrules the objection, the judge asks the question.

    H.    Lawyers are allowed to follow up on issues raised by juror questions.

(See State v. Darcy (WI 1998) 581 NW2d 567, 580.)

    See also NCJIC 16.9.2 [Juror Questions To Witnesses: Specific Instructions].

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

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

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    16.9.2.4    Juror Authored Questions To Witnesses Should Be Limited To Factual Clarification

RATIONALE: Legal and factual arguments are the provinces of trial counsel, and incompatible with the jury’s role as an impartial fact finder. Unless juror questions are limited to factual clarification, there is a danger that the jury's role as impartial fact finder will be compromised.

POINTS AND AUTHORITIES: "The significant advantages associated with jury-questioning must be considered in light of the dangers inherent in the practice. 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. [Citation.] Acting as inquisitors, jurors may stray from their proscribed 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 ... 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.)

    Hence, if juror questions are permitted they should be limited to factual clarification. (See U.S. v. Cassiere (1st Cir. 1993) 4 F3d 1006, 1018 [questions should be limited to exceptional matters]; U.S. v. Sutton (1st Cir. 1992) 970 F2d 1001, 1005 [limited to important matters]; Yeager v. Greene (DC App. 1985) 502 A2d 980, 1005 [for purposes of clarifying testimony or seeking relevant information]; State v. Hays (KS 1994) 883 P2d 1093, 1102 [for purpose of clarification]; Commonwealth v. Urena (MA 1994) 632 NE2d 1200, 1206; Flores v. State 965 P2d at 902 [for purpose of factual clarification].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 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 also 8th Circuit Model Jury Instructions - Criminal 1.06A.

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

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RATIONALE: If a juror submits a question for a witness and the court declines to ask it, the juror may naturally tend to speculate about what the answer would have been.

POINTS AND AUTHORITIES: See Yeager v. Greene (DC App. 1985) 502 A2d 980, 1005; see also U.S. v. Cassiere (1st Cir. 1993) 4 F3d 1006, 1018; U.S. v. Sutton (1st Cir. 1992) 970 F2d 1001, 1005; State v. Hays (KS 1994) 883 P2d 1093, 1102; Commonwealth v. Urena (MA 1994) 632 NE2d 1200, 1206; State v. Darcy (WI 1998) 581 NW2d 567, 577.

    See also NCJIC 16.9.2.2 [Jurors Not To Draw Any Inference From Judge's Refusal To Ask Witness Juror Authored Question].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 7.3; 7.5].

USE NOTES: The bracketed language is for use if the other jurors were aware of the question. Ordinarily, the better practice would be to have jurors submit questions individually without allowing the other jurors to learn about it.

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

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

    If I do not ask a juror-authored question, the juror posing it [as well as the other jurors,] should not guess or speculate about what the answer might have been. Also, you must not consider the question or discuss it with other jurors during deliberations.

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

    Do not draw any adverse inference if the court does not allow a particular question to be asked.

[See generally Yeager v. Greene (DC App. 1985) 502 A2d 980.]

    If I do not ask the question, you may not consider the question or discuss it with other jurors during deliberations.

[See Yeager v. Greene (DC App. 1985) 502 A2d 980, 1006.]

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    16.9.2.6    Jurors Should Not Give Disproportionate Weight To Answers To Their Own Questions

RATIONALE: Without a cautionary instruction the juror may improperly give disproportionate weight to the answer to his or her own question.

POINTS AND AUTHORITIES: "The significant advantages associated with jury-questioning must be considered in light of the dangers inherent in the practice. 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. [Citation.]" (Flores v. State (NV 1998) 965 P2d 901, 902; see also Commonwealth v. Urena (MA 1994) 632 NE2d 1200, 1206.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 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 also 8th Circuit Model Jury Instructions - Criminal 1.06A.

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

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RATIONALE: If the jury is allowed to ask questions of witnesses there may be a tendency for the jurors to prematurely discuss the evidence related to the juror questions.

POINTS AND AUTHORITIES: Yeager v. Greene (DC App. 1985) 502 A2d 980, 1005; State v. Hays (KS 1994) 883 P2d 1093, 1099.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 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 also 8th Circuit Model Jury Instructions - Criminal 1.06A.

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

    Even though you are permitted to submit questions to me to ask a witness, do not discuss the question with any fellow jurors or anyone else prior to deliberations.

[See generally Yeager v. Greene (DC App. 1985) 502 A2d 980.]

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    16.9.2.8    Jurors Must Not Speculate About What The Answer To A Rejected Question May Have Been

    See NCJIC 16.9.2.5 [Jurors Not To Speculate About How The Witness Would Had Answered Juror Authored Questions Not Allowed By The Court].

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

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

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RATIONALE: Permitting jurors to pose queries directly to witnesses, even with prior judicial screening and approval of their questions, undermines jurors’ impartiality by increasing the likelihood that jurors will give undue weight to the issues raised, and/or to the testimony elicited, by the question. Also, direct querying by jurors is incompatible with the requirement that jurors withhold judgment until all evidence, testimony and argument has been presented.

POINTS AND AUTHORITIES: "[The] practice of direct jury questioning of witnesses should not be permitted. The danger of irrelevant and improper questions is high, and were counsel to object, the potential for prejudice is apparent." (People v. Cummings (CA 1993) 4 C4th 1233, 1306 [18 CR2d 796]; see also U.S. v. Cassiere (1st Cir. 1993) 4 F3d 1006, 1017; People v. McAlister (CA 1985) 167 CA3d 633, 644-646 [213 CR 271] [direct juror questioning of witness, although a disfavored practice, did not prejudice defendant]; State v. Hays (KS 1994) 883 P2d 1093, 1100 [most courts recommend that questions be submitted in writing and that jurors should not directly question the witnesses]; State v. Graves (MT 1995) 907 P2d 963, 967 [questions should be submitted to the court in writing; trial judge should read questions to witness]; Flores v. State (NV 1998) 965 P2d 901, 902; State v. Darcy (WI 1998) 581 NW2d 567, 580; but see U.S. v. Groene (8th Cir. 1993) 998 F2d 604, 606 [allowing jurors to question jurors directly did not deprive him of a fair trial].)

    "The procedure [of requiring jurors to submit questions in writing] has two advantages. First, it discourages submission of questions by jurors which may interrupt the testimony of the witness and which questions may often be cleared up as the questioning of the witness proceeds. Second, this procedure "allows the trial court to keep strict control of questions to be asked and obviates the element of oppression on counsel who may be reluctant to object to a question asked by a juror". (WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.66 [Questions By Jurors Addressed To Witnesses], comment (West, 2nd ed. 1994).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 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 also 8th Circuit Model Jury Instructions - Criminal 1.06A.

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

    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] (1988).]

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    16.9.2.10    Final Instructions Should Repeat The Cautionary Instructions Regarding Juror Questions To Witnesses

PRACTICE NOTE: If juror questions have been submitted, a detailed cautionary admonition is needed in the final charge to the jury, because jurors may lose track of instructions given during the course of the trial, or may misinterpret the omission of such cautionary instructions from the final charge as indicating the issues addressed by the omitted instructions are comparatively unimportant or even no longer a concern. (See U.S. v. Cassiere (1st Cir. 1993) 4 F3d 1006, 1018; U.S. v. Sutton (1st Cir. 1992) 970 F2d 1001, 1005.)

    See also NCJIC 4.3.2.5 [Subsequent Change In Ruling Regarding Cautionary/Limiting Instruction May Constitute Unfair Surprise].

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

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

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