Juror Questions: Is It Good Practice?
“Was the plaintiff wearing her seatbelt at the time of the accident?” This question was asked by a juror after the plaintiff testified in a recent trial where the court allowed juror questions. Unfortunately, the juror never received an answer to this question because of a stipulation the parties entered into prior to trial regarding damages. Although circumstances will arise where juror questions are left unanswered, courts and counsel should encourage juror questions because allowing juror questions promotes interest in the trial, educates jurors on the issues and provides insight to counsel regarding facts important to the jury.
The practice of allowing jurors to question witnesses is not a new concept. “[T]he occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled. . .”The practice has long been sanctioned by American courts to encourage justice, fair play, and a fair understanding of the issues.Today, the overwhelming majority of state and federal courts allow jurors to question witnesses in most cases.
There is no statutory authority or case law in Wisconsin that addresses juror questioning of witnesses in civil cases. Some Wisconsin judges encourage the use of juror questions and have written articles on this issue.Mississippi and Nebraska are the only two states that expressly prohibit juror questioning of witnesses in all cases.Texas and Minnesota proscribe juror questioning of witnesses in criminal trials only.
On the other hand, typical civil actions do not frequently present the same kind of constitutional or liberty interests presented in criminal trials. In complex cases juror questions may serve to provide the jurors with a better understanding of the issues and advance the search for the truth.As long as procedural safeguards are in place, such as requiring the jurors to submit questions in writing, jurors are generally permitted to question witnesses.For example, in Georgia, jurors are specifically prohibited from asking witnesses questions directly, but the practice has been upheld where the jury submitted written question to the court.
Juror Questioning of Witnesses in Wisconsin
(1) Control by the judge. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to do all of the following:
(a) Make the interrogation and presentation effective for the ascertainment of the truth.
(b) Avoid needless consumption of time.
(c) Protect witnesses from harassment or undue embarrassment.
Further, Wisconsin Statute § 906.14 gives the judge authority to interrogate witnesses. It provides:
(1) Calling by judge. The judge may, on the judge’s own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine the witness thus called.
(2) Interrogation by judge. The judge may interrogate witnesses, whether called by the judge or by a party.
(3) Objections. Objections to the calling of witnesses by the judge or to interrogation by the judge may be made at the time or at the next available opportunity when the jury is not present.
Pursuant to Wisconsin Statute §§ 906.11 and 906.14, the trial court’s decision to allow juror questioning is discretionary. This is consistent with the majority of state and federal courts, which recognize that juror questioning of witnesses is a matter within the trial judge’s discretion.
Information provided to prospective jurors on the Wisconsin Court System's internet site informs jurors that the judge may allow a juror to ask a question during trial, and that the questions are subject to objection by the attorneys.Wisconsin Jury Instruction—Civil 57 is available for cases where juror questions are allowed. The instruction reads:
You will be given the opportunity to ask written questions of the witnesses testifying in this case.
After both lawyers have finished questioning a witness, you may raise your hand if you have any questions that have not been addressed by the lawyers. Questions must be in writing and directed to the witness and not to the lawyers or me. If I determine that your question may be asked, I will ask it. If I do not ask your question, you should not speculate what the answer to the question is and why I did not ask it.
If the judge permits juror questioning, the lawyers should be told in advance and their positions noted on the record.The court should read Wisconsin Jury Instruction—Civil 57 to the jury prior to any testimony in the case. This instruction can easily be incorporated into or read after Wis. JI-Civil 50, Preliminary Instructions Before Trial, or at the same time the note-taking instruction is read to the jury.
Wisconsin JI-Civil 57 also refers the judge in a civil case to Wisconsin Jury Instruction—Criminal, Special Material 8, for guidance regarding the use of juror questions. The Criminal Jury Instruction Committee prepared these guidelines to assist judges who chose to allow juror questioning of witnesses. The following basic procedures are recommended:
- Whether to allow questions is discretionary with the judge;
- Jurors should be given an instruction advising them of their right to ask questions and explaining the procedure;
- After the witness is questioned by counsel, but before the witness leaves the stand, jurors are asked if they have any questions;
- Questions are submitted in writing to the judge and are shown to the attorneys, who may object without the jury knowing about it;
- The judge reviews the questions and any objections;
- If the objection is sustained, a brief explanation is usually given to the jury;
- If the objection is overruled or there are no objections, the judge asks the question to the witness (when there are minor problems with the form or wording of a question, a revision is developed with counsel); and
- The attorneys are allowed to follow up on issues raised by juror questions.
Courts and counsel should follow these basic procedures when juror questions are used in civil cases.
There are a number of practical considerations that should be weighed in determining whether juror questions may be useful to your case. Courts generally discuss the use of trial questions at the final pre-trial or on the morning of jury selection. Therefore, Counsel should be prepared to take a position on juror questions prior to trial. Any objection to juror questioning should be placed on the record so that it is preserved for purposes of appeal.
If the court allows juror questions, counsel should instruct all witnesses prior to their testimony regarding the possibility of questions from the jurors. A witness’s responsiveness to a juror question will have a direct effect on the credibility of the witness. If your witnesses are very likeable and personable, allowing jurors to question them directly may have a significant positive effect on your case. On the other hand, if your witnesses are not as warm, convincing, or likeable, you may not want to open up your witness to juror questions.
Advantages to the practice of allowing juror questioning include: it allows jurors to resolve issues that are important to them, it increases juror attentiveness and satisfaction, it improves jury deliberations by increasing the knowledge of the jury, it brings out material that may have been missed by the attorneys, and it helps the attorneys direct their cases toward issues that jurors are concerned about.
Juror questions are most helpful in jury trials where the issues are complex and the trial is expected to last a significant period of time. Where a case involves difficult scientific evidence, allowing juror questions will permit jurors to seek clarification on issues that they may not understand. Jury understanding of such issues may be critical to the defense of the case.
Disadvantages to the practice of juror questioning include: added delay, disruptions to courtroom order and procedure, and disruptions to trial strategy by asking questions intentionally not asked by counsel. Moreover, juror questions may be detrimental to your client’s position; may cause juror partiality or advocacy; may prejudice jurors against a party; or may cause speculation on the part of the jurors if a question is not asked and, thus, result in premature judgment on some issues.
As set forth by the seatbelt question in the preface to this article, some times juror questions cannot be answered because of pre-trial stipulations by the parties or court rulings. Where questions cannot be answered, the court should give a brief explanation to the jury of why it is not appropriate. For example, in the scenario above, the jury could be instructed simply “the plaintiff’s use or non-use of a seatbelt is not an issue in this case and should not be considered by you.” The concern with such a cautionary instruction, of course, is whether the jurors will follow this instruction or speculate as to why the question was not answered.
Another concern is whether allowing juror questions may be unfairly prejudicial to one party or another where expert testimony has been taken by videotape prior to trial. A juror may ask a question of one party's "live" expert and that expert may provide an answer that cannot be countered by the other party’s expert whose testimony is already “in the can.” There is also risk that the jurors will place greater weight on an expert from whom they can ask questions. In short, jurors may be more receptive to an expert from whom they can ask questions, as opposed to an expert whose opinions are expressed by way of videotape.
Whether juror questions should be allowed in any trial requires a case-by-case analysis into the complexity of the issues and potential unfair prejudice to one of the parties. Overall, juror questions seem to enhance juror attentiveness and are another tool defense attorneys can use to determine whether the jury understands and favors the theme of their case.
Amy F. Scholl is a shareholder at Coyne, Schultz, Becker & Bauer, S.C. in Madison. She practices primarily in the area of civil litigation with an emphasis on insurance and professional malpractice defense. She earned her B.A. from Miami University, and her J.D. from the The John Marshall Law School in Chicago, Illinois.
Elizabeth M. Johnson is an associate at Coyne, Schultz, Becker & Bauer, S.C. She graduated from The Pennsylvania State University—Dickinson School of Law in 2004 and previously worked as a Staff Attorney at the Dane County Circuit Court.
See,e.g., Mark A. Frankel, A Trial Judge’s Perspective on Providing Tools for Rational Jury Decisionmaking, 85 Nw. U. L. Rev. 221 (1990); Robert W. Landry, Let the Jurors Ask!, Nat’l L.J., Jan. 29, 1990.
See, e.g.,U.S. v. Feinberg, 89 F.3d 333, 337 (7th Cir. 1996); State v. Costello, 646 N.W.2d 204, 216 (Minn. 2002) (Anderson, J. dissenting) (noting all federal courts to address the issue have permitted juror questioning subject to safeguards).