Juror Questions to Witnesses

Juror questions for witnesses were not unheard-of prior to the wave of jury improvement efforts that began relatively recently. Nonetheless, the norm in most American courts for most of the twentieth century was that jurors were not permitted to ask questions of witnesses. This meant that jurors were not informed at the beginning of the trial that they could ask questions, and if a juror did ask a question, the judge would decline to put it to the witness.

This situation has changed in most jurisdictions as part of jury improvement efforts. While nobody suggests that jurors should be permitted to orally question a witness, every jury improvement group report has recommended that a juror be permitted to put questions for a witness in writing, with the questions then being submitted to the judge, revealed to the attorneys for comment and argument, and propounded to the witness by the judge (perhaps in amended form) if the questions are legally permissible. Currently, about one-third of states have a statute or rule that permits such juror questions to witnesses, and most of the remaining states and all the federal circuits that have considered the issue permit such questions in the trial judge’s discretion. However, juror questions to witnesses are still barred in a few jurisdictions: Minnesota (in criminal cases), Mississippi, Nebraska (both civil and criminal cases), and Texas (in criminal cases). To look at these statutes, rules, and cases, click here.

The rationales for permitting jurors to ask written questions of a witness are based on common sense:

• Since the trial is a search for truth, and the jurors have to ultimately decide the case, the truth-seeking process is advanced if jurors are able to ask questions about a point that is unclear to them
• Allowing jurors to actively engage may increase their attentiveness
• The question may signal to the lawyers important information about how the jurors are thinking about the case, which may allow the lawyers to present their cases better

There continue to be objections to the idea of jurors posing questions for witnesses, including:

• Juror questioning is incompatible with the adversary system, which entrusts presentation of the case to the parties
• Juror questioning may distort juror impartiality
• Juror questioning may slow down the trial and disrupt courtroom decorum
• Jurors may submit inadmissible questions, and may hold a grudge if their questions are ruled impermissible, or counsel may feel compelled not to object to an objectionable question for fear of offending the juror
  
  Social science research, and judicial experience, has concluded that these objections are unfounded. When jurors are permitted to ask questions of witnesses, the normal pattern is that they don’t ask a burdensome number, the questions usually relate to permissible factual details of the witness’s testimony, and jurors understand if their question is ruled impermissible. To learn more about the research on this topic, click here.
   

Go Back