The Propriety of Jurors Posing Questions to Witnesses

WDC Journal Edition: Winter 2006
By: Sara J. MacCarthy - Hall, Render, Killian, Heath & Lyman, PC

The propriety of permitting jurors to pose questions during trial has been the source of debate amongst lawyers, judges and commentators. While attorneys may have strongly held opinions about the practice, the bottom line in Wisconsin is clear—a court may in its discretion permit jurors to ask questions. Consequently, the issue for litigators is how to ensure that the recommended safeguards are in place and, more importantly, are followed during the heat of trial. This article outlines the pros and cons of permitting jurors to ask questions and discusses the safeguards that should be in place at the outset of the trial.

Common Law Roots Allow Juror Questioning of Witnesses

Although it might appear that the practice of permitting juror questioning is of recent vintage, this practice is in fact firmly rooted in both the common law and American jurisprudence. Accordingly, those courts that have accepted the practice have held that the decision about whether not to allow juror questioning is within the trial court’s discretion.

In Wisconsin, the trial court's authority to permit juror questioning derives from Wis. Stat. § 906.11, which provides that "[t]he judge shall exercise reasonable control over the mode and order of interrogating witnesses[.]" Commenting upon the analogous Federal Rule of Evidence (Rule 611(a)), Wisconsin Circuit Court Judge Mark Frankel observes: “This broad directive to trial judges also serves as a major untapped reservoir of legal authority to empower jurors to play a more effective fact-finding role in the courtroom.” The court's inherent authority to allow juror questioning also derives from Wis. Stat. § 906.14(2), which provides that "[t]he judge may interrogate witnesses, whether called by the judge or by a party." Consequently, it is well accepted that trial courts have the authority to allow for jury questioning.

"The Only Thing We Have to Fear is Fear Itself"

Attorneys opposed to juror questioning of witnesses claim, generally, that the potentially harmful effects outweigh the benefits derived from its use. The “drawbacks of the practice are that jurors may assign disproportionate weight to evidence elicited in response to their own questions and that jury-questioning transforms the adversary process into an inquisitorial process.” In Flores v. State, for example, the Nevada Supreme Court observed that “[a]cting as inquisitors, jurors may stray from their prescribed role as neutral fact-finders and prematurely evaluate the evidence.”

In the same vein, Judge Frankel has observed that objections to the practice “are expressed in the form of two basic assumptions: first, that allowing jurors to ask written questions will transform jurors from neutral fact-finders into partisan advocates; and second, that allowing jurors to have an unpredictable input into the interrogation process will disrupt the attorney’s trial strategy.”
Apart from the concern about the shifting of the jury’s roles from fact-finder to inquisitor, opponents also contend that jury questioning unnecessarily delays courtroom procedure and unjustly allows the jury to assist the benefiting party to meet its burden of proof. Finally, opponents of the practice believe that they cannot object to juror questions in open court without the risk of either alienating the jurors or encouraging the jurors to speculate if the objection is sustained.

By contrast, proponents of juror questioning believe that its use helps jurors understand the evidence and issues at trial by, at the very least, revealing their confusion and allowing counsel to clarify the issues. Other advantages include bringing out material the lawyers may have missed, increasing jury attentiveness, increasing juror satisfaction, decreasing frustration and discontent, and guiding lawyers to focus on the strengths of their case.

Advocates for the process, including Wisconsin's Judge Frankel, claim that “the reality of jurors asking questions fails to substantiate” concerns about either jurors becoming partisan advocates or attorney’s trial strategy being disrupted. Judge Frankel also maintains that "there is less likelihood that a jury will spend time speculating how a witness would have answered an intriguing question if jurors are given the opportunity to ask the same question during the course of the trial." Hence, he "allowed jurors to ask written questions of witnesses in almost all civil and criminal trials." Judge Frankel is not alone; many Wisconsin Circuit Court Judges employ its use. The question that arises is whether they use adequate safeguards to prevent unfair harm.

Civil Jury Instructions Do Not Suffice—Look to the Criminal Instructions for the Commonsense Procedures

Generally speaking, trial courts are well versed in controlling juror questioning; thus, their aptitude alleviates many of the concerns raised by those who oppose its use. Indeed, a testament to this fact is that very few state or federal appellate courts have reversed on the issue. Notwithstanding this fact, however, trial counsel must be vigilant in reminding the court of the procedural safeguards that should be used to avoid any unfair harm. Additionally, counsel must be prepared to object to questions and, where necessary, request a mistrial. If counsel fails to object to the question or move for a mistrial, he or she has waived any chance at reversal.

In Wisconsin, the suggested safeguards for facilitating jury questioning of witnesses have been outlined in the Wisconsin Jury Instructions, specifically Wis JI-Civil 57, and Wis JI-Criminal SM-8, and adopted for criminal cases by the court of appeals in State v. Darcy N.K. Pursuant to these instructions, the trial court should first advise counsel that the court will permit juror questioning of witnesses. Counsel should state any objection, and the court should then give the jurors a preliminary instruction, advising them of the right to ask questions and explaining the procedures to be used. The Civil Jury Instruction suggests that the court instruct the jury as follows:
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 or why I did not ask it.

The Criminal Jury Instruction suggests a more detailed instruction:
You will be given the opportunity to ask written questions of any of the witnesses called to testify in this case. You are not encouraged to ask large number of questions because that is the primary responsibility of counsel. Questions may be asked only in the following manner.
After both lawyers have finished questioning a witness and only at this time, if there are additional questions you would like to ask the witness, you may then seek permission to ask that witness a written question. Should you desire to ask a question, simply raise your hand and the bailiff will furnish you with a pencil and paper. Questions must be directed to the witness and not to the lawyers or the judge. After consulting with counsel, I will determine if your question is legally proper. If I determine that your question may properly be asked, I will ask it. No adverse inference should be drawn if the court does not allow a particular question to be asked.

Typically, upon completion of direct and cross-examination by the attorneys, jurors submit their written questions to the court. The judge then reviews them with the attorneys at sidebar or in chambers, giving counsel an opportunity to object out of the jury’s hearing. After determining which questions are permissible, the court will pose them to the witness. Counsel is then permitted to ask follow-up questions, which should, ideally, be limited to redirect or re-cross of the witness on the facts or issues brought out by the "juror's" question.

In the event a juror question is deemed objectionable, the court should attempt to explain the reason why the question will not be asked and the court should advise the jury not to surmise anything from the disallowance of the question. This is in an effort to put the onerous on the trial court, not counsel.

Conclusion

It remains to be seen whether the practice of juror questioning increases. It is likely, however, that an attorney who tries a lot of cases inevitably will be before a court who allows the practice. Consequently, counsel must not be fearful of it. As with almost everything in life, we must adapt to the particulars; in trial, this includes juror questioning of witnesses.

Moreover, whether an attorney likes or dislikes the practice, the final decision to permit juror questioning rests in the court's discretion and absent an erroneous exercise of discretion, the decision will not be reversed on appeal. If questioning is permitted, everyone involved—the judge, the attorneys, and the jury—should clearly understand the procedure and the safeguards, once determined, must be followed by all.

Sara J. MacCarthy is an attorney at the Hall, Render, Killian, Heath & Lyman, PC, law firm in Milwaukee, WI. Her practice areas include litigation and risk management. She received her B.A. and J.D. from Marquette University and was admitted to the Bar in 1996. She is a member of the State Bar of Wisconsin, American Bar Association, and the Milwaukee Bar Association.

See, e.g., Jonathan M. Purver, Annotation, Propriety of Jurors Asking Questions in Open Court During Course of Trial, 31 A.L.R.3d 872 (1970); Mark A. Frankel, A Trial Judge's Perspective on Providing Tools for Rational Jury Decisionmaking, 85 Nw. L. Rev. 221 (1990); Frieland, The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. L. Rev. 190 (1990).

Wisconsin is not unique; most courts, both state and federal, that have addressed the issue permit jurors to question witnesses. See Sarah West, Comment, “The Blindfold on Justice is not a Gag”: The Case for Allowing Controlled Questioning of Witnesses by Jurors, 38 Tulsa L. Rev. 529, 530-31 & nn. 1-3 (2003); see also Purver, supra n.1, at § 3.5.

Michael A. Wolff, Note, Juror Questions a Survey of Theory and Use, 55 Mo. L. Rev. 817 (1990).

See West, supra n.3, at 530-32.

Wis JI-Criminal Special Material (SM)-8.

Frankel, supra n.1, at 225 (Mark A. Frankel is a member of the Litigation Practice Group at Godfrey & Kahn S.C., in Madison. He served as a Dane County Circuit Court Judge from 1979 until 1999.)

Sommers v. Friedman, 172 Wis. 2d 459, 473-78 (Ct. App. 1992); State v. Darcy N.K., 218 Wis. 2d 640, 581 N.W.2d 567(Ct. App. 1998).

Flores v. State, 965 P. 2d 901, 902 (Nev. 1998)

Id.

See supra n.1.

N. Randy Smith, Why I Do Not Let Jurors Ask Questions In Trial, 40 Idaho L. Rev. 553, 559-61 (2004).

See Wis JI-Criminal SM-8.

See id.

See supra n.1. See Hon. N. Randy Smith, Why I Do Not Let Jurors Ask Questions In Trials, 40 Idaho L. Rev. 553 (2004).

Frankel, supra n.1, at 224.

Id. at 222.

See Purver, supra n.1, at § 3.5.

State v. Darcy N. K., 218 Wis. 2d 640, 658, 581 N.W.2d 567 (Ct. App. 1998) (defendant “forfeited the right to claim any trial court errors stemming from the juror questioning procedure employed at his trial because he failed to timely object to the procedure itself or to any specific juror questions”).

218 Wis. 2d 640, 669-71 & n.13 (Ct. App. 1998).

Wis JI-Civil 57 (2002).

Wis JI-Criminal 57 & SM-8 (2005).

Laurie Forbes, Comment, The Propriety of Jury Questioning: A Remedy for Perceived Harmless Error, 28 Pepp. L. Rev. 437, 468-69 (2001).