Permitting jurors to ask questions during trial is a procedure that is slowly gaining acceptance in both state and federal courts, albeit with some significant opposition. The 2008 Philadelphia Federal Bench Bar Conference included a presentation on the subject, with two federal district judges, Judge Thomas Vanaskie and Judge Legrome Davis, presenting opposing views of the utility of the process.
Questions from jurors to witnesses during trial is a procedure that is actively promoted by some federal district court judges, rejected by others and cautiously permitted by circuit courts of appeal with words of reservation. State courts on the whole are more receptive to the process. Many jurists and law professors believe that the jurors should be permitted to ask questions of a witness to clarify their testimony. Appellate courts that permit the practice leave the decision to use the procedure to the broad discretion of the trial judge. The generally accepted procedure is to require the jurors to write out the questions, which are reviewed by the court, shown to counsel for objection, and then either rejected by the court or asked of the witness by the court.
The Third Circuit addressed the issue in United States v Hernandez, 176 F.3d 710 (1999). Judge McKee, writing for the majority upheld the district court's procedure which was similar to that described above. Judge McKee noted that although a number of federal circuit courts have permitted the practice they all expressed concern with the procedure. The Second Circuit held the practice was within the discretion of the trial judge, but "strongly discouraged its use." The court feared that it could turn jurors into advocates¸ creating a risk that the jurors would ask prejudicial questions, and would place counsel in a difficult position to respond for fear of antagonizing, alienating, or embarrassing a juror. The first circuit allowed the practice, but was quick to discourage it, and noted that allowing jurors to pose questions in a criminal trial is a "procedure fraught with perils", and stated ". . . in most cases the game will not be worth the candle."
Since Hernandez, ten federal circuit courts now permit the practice with similar admonitions on its use. Note that I use the word "permit" which falls well short of endorsing. State courts are more favorable. Although some state Supreme Courts such as Mississippi and Nebraska expressly forbid the practice, the lower courts of Indiana, Wisconsin, Illinois and Arizona have employed the practice for several years. The Supreme Courts of Texas and Georgia prohibit questions from jurors in criminal cases. There are a total of 16 states that permit the practice in varying degrees, but one must be careful to examine the individual procedures. The Pennsylvania Supreme Court in decisions in 1920 and 1913 said in dicta that a juror may ask a question of a witness. The language in those cases cannot be read as a wholesale approval of the process. I have received reports of instances of Common Pleas Court judges permitting the practice under varying conditions.
Federal District Court Judge Vanaskie, of the Middle District of Pennsylvania is an advocate of the practice, and expressly asks the jurors if they have any questions after the testimony of every witness. Judge Vanaskie said the process enhances the fact finding mission of the jury. He believes the idea of a passive jury is inconsistent with the jury fact finding function. Judge Vanaskie doesn't credit the objections to the process. He has not had experience jurors blurting out questions, becoming advocates, reaching a premature conclusion or reacting negatively if their questions are not asked by the judge. He feels that juror satisfaction is increased, and believes the jurors feel they are full participants in the trial.
The procedure of giving the jurors the opportunity to submit questions after every witness raises other issues. Critics argue that this practice simply encourages questions that would not normally be asked. Judge Vanaskie believes the reasons that jurors respond more readily when given the opportunity to ask questions after each witness, is that they are normally intimidated by the trial process, and are simply not prepared to think about questions until they are reminded of their right to do so. He is not convinced that the process encourages frivolous questions.
The process comes under more criticism when used in a criminal trial. The Third Circuit in Hernandez noted there are more potential problems in criminal cases. Judge Vanaskie said that he has growing concerns about the practice in criminal cases, and permitting jurors to question witnesses may affect the defendant's decision to testify.
Robert Cindrich former federal district court judge of the Western District of Pennsylvania, now Vice President and Chief Legal officer of the University of Pittsburgh Medical Center, said that during his ten years on the bench, he permitted jurors to ask questions only in civil cases. According to Cindrich, jurors seldom asked questions, but when they did the questions were usually very sensible and relevant. Cindrich said sometimes the question exposed a fact that counsel neglected to cover on direct or cross examination. He said, "The bottom line is that jurors are not potted plants or ornaments in a trial. They are the triers of fact and we should make certain that they have all the relevant information at their disposal." The instruction given by Judge Cindrich to jurors regarding the procedure for asking questions may be obtained from the author at p.vaira@vairariley.com.
Judge Legrome Davis of the Eastern District of Pennsylvania in his presentation at the Philadelphia Federal Bench Bar Conference in June 2008, stated he has doubts about the utility of permitting juror questions. He said that although many federal circuit courts permit questions from jurors the overall tone of those decisions indicates the circuit courts discourage the practice. Judge Davis stated that the procedure sets up an odd dynamic between the court and the jury and adds another level of vigilance on the court's part that is not necessary. He gave as examples the decision whether to edit the wording of the questions, or whether to permit follow up questions from the juror. Judge Davis stated he believes that permitting questions in a criminal case could affect the defendant's decision to take the stand. Federal District Court Judge Sam Sparks of the Western District of Texas does not allow the jurors to ask questions of a witness. Judge Sparks replied to my inquiry stating, "This procedure can take away the trial lawyer's control and method of trying the case. It can lead into inadmissible evidence but more importantly (lead) into areas the lawyers on each side of the case have decided to avoid."
I received comments from members of the American College of Trial Lawyers about their personal experiences with the process. Elizabeth Mulvey, of Boston reported that the state judges of Massachusetts are moving toward universally permitting juror questions. She reported that the leading case of Commonwealth v. Britto, 433 Mass. 596 (2001), sets out nine guidelines for trial judges for permitting juror questions. Walter Sinclair of Boise, Idaho said that although the practice is permitted in the state, the jurors do not ask many questions, however when they do, "they often the point out something we (the lawyers) overlooked." Thomas Zlaket of Tucson, Arizona commented that Arizona has had a rule of civil procedure permitting jury questions for quite a few years. He said, "By most accounts it works quite well. Jurors like it a lot." Ed Nevin of San Francisco, California commented on a recent trial in Sacramento County Superior Court where Judge Brian Van Camp permitted juror questions. After acknowledging a concern for stepping on counsel's tactical toes, Nevin said, "I found the process quite satisfying and enlightening, providing significant hints as to what was troubling the jurors and what needed further addressing."
A strong proponent of the practice is Eastern District of Pennsylvania Magistrate Judge Tim Rice. Judge Rice utilizes the process in the trial of every civil case, giving the jurors the right to submit questions after the testimony of every witness. Judge Rice was persuaded to permit juror questions after reading the A.B.A. Principles for Juries & Jury Trials, Sec. 13, (2005). Judge Rice is not troubled by a juror submitting a question on irrelevant matters. He said by instructing the juror that the area he or she inquired of has nothing to do with the case, the juror is properly directed to the real issues. Judge Rice noted that after a question from a juror, the attorneys will generally follow up on that same inquiry with later witnesses. He believes permitting questions from jurors is a "win-win" situation. " It improves the truth seeking process, aids the lawyers, and does not delay the trial," he said.
The Seventh Circuit conducted a controlled test of the procedure, along with other jury trial procedures for seven months in 2005-2006. Chief Judge James Holderman of the Northern District of Illinois, one of the participants, stated that he was skeptical of the process at the beginning. At the conclusion, after presiding over numerous trials in which juror questions were permitted, he became convinced it assisted the fact finding process, and does not believe the criticisms leveled at the process are valid. In a published article in the ABA Litigation Magazine, Spring 2007, on his experience, Judge Holderman said that if anyone is skeptical of the process " . . . they should do what the federal judges of the Seventh Circuit did ---take the procedure to the court room and try (it)...".
As a personal observation, at the outset of writing this article I felt that the process of permitting juror questions was one of those academic proposals that look good on paper, but are really of little use, and raise more problems than it is worth. At the conclusion of the preparation of the article I have become convinced that permitting juror questions is worthwhile, and in most instances aids the fact finding process.
The complete text of Peter Vaira's prior columns on Eastern District Practice may be found at vairariley.com; click on "articles".
