The judge in one of my recent criminal trials allowed the jurors to ask questions. It was mostly fascinating, though there were a few scary moments too.
On the one hand, it gave us valuable insight into what the jury was thinking. I’m sure it helped the prosecution too, but it was incredibly helpful to hear what questions the jury had as we crafted our defense.
All in all, I’m in favor of allowing jurors to ask questions with the right procedural limitations in place to make sure everyone’s rights are protected.
There is no rule in federal court prohibiting jurors from asking questions. And, in DC, there is no rule in our “state” court either.
(We are not a state. We do not get congressional representation. We have to pay federal taxes. This is wrong and unfair and should no doubt be changed by constitutional amendment. Rant over. For now.)
In federal court, Rule 26 governs the taking of testimony. All it says is this:
In every trial the testimony of witnesses must be taken in open court, unless otherwise provided by a statute or by rules adopted under 28 U.S.C. §§2072-2077.
That’s not very helpful.
Federal Rule of Evidence 614 is a bit more on point:
(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
(b) Examining. The court may examine a witness regardless of who calls the witness.
(c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.
There is no evidentiary prohibition against a judge asking questions. Of course, it must be a proper question about a relevant issue.
Having seen juror questions in practice, here are a few ideas for procedural protections to have in place.
First, the judge should take all of the juror’s proposed questions in writing. That means that there will be a written record of them.
Second, the judge should always read the proposed questions into the record so the court reporter makes a record too. Since the questions are scratched on odd-sized paper and sometimes folded up, losing them seems a very real possibility in the chaos of trial.
Third, the judge should read the question to counsel outside the presence of the jury—either during a break or at the bench. Then counsel can object to asking the question at all and suggest changes to the question to make it less objectionable.
Fourth, generally, the judge should ask the question of the witness, unless both sides agree that the counsel asking questions at the time should ask it. I think jurors want to hear the judge ask the questions rather than counsel, plus it make sure that the right question is asked.
Fifth, the questions should usually be asked at the end of the examination. If the government is on direct examination when the question is posed by the juror, then the judge can ask the question at the end of the direct examination.
However, if it is a very detailed question and better asked at an earlier point (before, say, the prosecutor is about to move to a new topic), then it may be better to ask it right away rather than waiting until the end.
Slight digression: Yes, if it’s a bad question for the defense, then I’d prefer that it be asked at the end of the examination when perhaps the jurors won’t recall why it was important. But what’s good for the goose is good for the gander. If a juror asks a helpful question during my cross, then I’ll want it read fairly quickly.
Sixth, both sides should have the chance to ask follow-up questions about the juror’s question and the witness’ answer at some point in time.
Seventh, and most important, just because a juror wants to have the question asked, doesn’t mean it should be asked. Juror questions are not an excuse to ask impermissible questions. If a juror wants to know what the sentence will be if they find the defendant guilty, then the judge should simply decline to answer the question. If the juror wants to know if the witness is gay or a Republican or has kids? Unless those questions would lead to relevant evidence, then the judge should decline to ask them.
In short, the same evidence rules apply for juror questions as lawyer questions. And you can still object to the answer if that’s appropriate.
How Juror Questions Help the Defense
Although there are risks (see below), juror questions can help the defense in a few ways.
Questions from jurors will mostly be asked during the government’s case. That part comes first and it’s almost always longer than the defense case. So, as defense counsel, you’ll get a chance to hear what the jury is worried or concerned about before you have to put on your case. In some circumstances, you may be able to find a witness to counter a question or concern raised by a juror or at least ask the right questions during your defense case.
Plus, answers to juror’s question create error in the record. I know, I know, Real Trial Lawyers do not want to think about appeal.
YOU SHOULD ALWAYS BE THINKING ABOUT APPEAL.
Thinking about appeal does not make you a bad trial lawyer. It makes you a good trial lawyer. Criminal defense lawyers often lose at trial. You want a chance to turn it around on appeal.
Answers to juror’s questions can create bad evidence for the defense no question. But, how often do you think a juror comes up with a question that wasn’t already asked or considered by the government? I’d say that’s pretty rare. You may have smart jurors but if you have a worthy opponent, the jurors aren’t going to come up with something new.
DC may be an exception. Because we have so many lawyers here, a LOT of our juries end up with at least one lawyer on them. Those lawyers can be your best friend or your worst enemy. That’s something to consider if the judge says she’s going to allow the jurors to ask questions.
This article cites some studies about using jury questions. I can’t vouch for its accuracy or the efficacy of the studies, but it’s an interesting read that advocates for the use of juror questions.
There Are Risks
In our trial, the jurors mostly had questions for the two expert witnesses, but also had a few to ask of the fact witnesses. The judge wouldn’t let either side discuss the questions with the witnesses before asking them.
There were a few times when the judge asked the witness a question from a juror that we did not anticipate. Those can be scary moments.
You also lose a little control of the case. That can be scary too. But a good judge is not going to let jurors ask questions that will send a trial off the rails or let one motivated juror ask questions to try to influence other jurors indirectly. Those are risks you need to stay attuned to, and object if necessary.
Keeping Jurors in the Game
Being on jury duty can be dull. In white-collar criminal cases, there may be days of dry testimony about accounting practices or compliance rules.
Allowing questions keeps the jurors in the game. They become participants rather than mere observers. They pay attention.
In our case, once the first jury question was asked, the floodgates opened. In a three-day trial, we had about fifteen questions. Most of them were insightful and on point. A few were…not. But the judge asked nearly all of them.
It made for a better trial.