I recently read an article that discussed a growing trend in jury trials: allowing jurors to ask questions of witnesses. The article indicates that allowing jurors to ask questions of witnesses while on the stand is a favored trend because it helps jurors feel more like they are a part of the process and likely reduces deliberation time because jurors spend less time in deliberations speculating about unanswered questions.
The article set out a simple process. Once counsel concludes their examination, the jury is asked by the judge if they have any questions. Any questions are written down by the jurors and passed to the Court Deputy who hands them to the Judge. The Judge determines if it is a question that at least on its face appears proper. The Judge then asks Counsel if they have any objection. If there is no objection the question is asked. If there is an objection the Court rules the objection and makes the call whether to ask the question.
Well as fate would have it, I lived the experience of allowing jurors to ask questions in a recent wrongful death trial. The process followed was very similar to that outlined in the article with the exception the Court at times tried to clarify the question and did allow follow up by Counsel.
During four days of evidence, there were about a dozen questions. Only two were rejected by the Court as improper. In the case of an improper question the Court simply did not ask the question without any explanation as to why the question was not asked. There were no questions asked that were objected to by one side but not the other.
The overall experience was positive especially since the jury returned a defense verdict, but I have to say I am not sure any time was saved during deliberations since it still took the jury six hours to return their verdict. In sitting and listening to the Court ask the questions posed by the jury it dawned on me how much the Court could, by how it asks the question, rephrases the question or by asking its own follow up question, influence a jury.
For future reference if you are comfortable with your judge I see no reason to oppose allowing the jury to ask questions of witnesses especially since it will likely happen anyway. I would however, make sure the process of how the questions will be asked is clear including if there is to be any clarification that Counsel have input in the clarification of the question and that any follow up questions come only from counsel. The only other suggestion I might offer is that the jury be advised, when they are instructed they can ask questions, that if a question they pose is not asked it is because under the rules of evidence the question cannot be answered or some other general reason why the question was not asked.
If anyone would like to share their experience with jury questions please do, I would like to know how others feel about this apparent growing trend in jury trials.