Trial Practice »

Should Jurors Ask Questions?

It is clear that the majority of state jurisdictions grant discretion to the trial court on the issue of whether or not jurors can ask questions of witnesses at trial. The cases are gathered at Propriety of Jurors Asking Questions During Open Court During Course of Trial. [1] Some states, such as Michigan, have court rules or standard instructions for dealing with the issue and some judges are more eager to permit jurors to ask questions than others. In jurisdiction for Michigan, the criminal court rule MCR 6.414(E) grants discretion to the trial court as follows:

The Court may, in its discretion, permit the jurors to ask questions of witnesses. If the Court permits jurors to ask questions, it must employ a procedure that ensures that inappropriate questions are not asked, and that the parties have the opportunity to object to the questions.

The Michigan Standard Civil Jury Instructions provide a more detailed procedure for permitting jurors to ask questions, as follows:

During the testimony of a witness, you might think of an important question that you believe will help you better understand the facts in this case. Please wait to ask the question until after the witness has finished testifying. If, after the witness has completed testimony, and only then, your question is still unanswered, you may write the question down, raise your hand, and pass the question to the bailiff. The bailiff will give it to me. Do no under any circumstances ask the witness the question yourself. There are rules that a trial must follow. If your question is allowed under those rules, I will ask the witness your question (Mich. Civ. JI2.11).

It is clear that the civil instruction regarding questioning by jurors is to be given as a preliminary instruction after the jury is sworn but before any testimony is taken.

Customarily, the process is as follows: Once a jury is seated and sworn, the preliminary jury instructions are given including one on whether or not the jury may ask questions. If the jury may ask questions, then notepads and pens are provided usually by the Court. The jurors must write out their questions, and after the witnesses are questioned by the Court and counsel, the Court will customarily ask the jurors if they have any questions. The juror would then raise his or her hand and provide the written question to the bailiff who gives the written question to the Court. At a sidebar, the Court and counsel confer regarding the propriety of the question. The Court may then exercise its discretion and the Court itself will address the question to the witness who then answers. At that point, all counsel may ask follow-up questions. [2]

Cases from various jurisdictions provide the parameters for this process. The process should never involve direct questioning by the juror. [3] Permitting jurors to question witnesses should never be routine but depend on the complexity of the case. [4] The questions should relate to admissible facts of the case. [5] The court should instruct the jury they should not draw adverse inferences from the Court’s refusal to allow certain questions. [6]

In some courts, this process is virtually automatic, as some judges assume that the jurors should be permitted to ask questions. Other judges are disinclined to permit the process. Both types of judges can be persuaded otherwise.

The trial attorney frequently merely goes along with the Court’s decision regarding questioning by jurors, but the process is not without danger and prejudice may occur to one side or the other. Thus, before the trial, counsel should consider the pros and cons of permitting the jurors to ask questions. Counsel should determine and consider whether the case is factually complex or not. If it sees that if a case is factually non-complex with few inferences from the evidence required, then counsel may safely permit or positively encourage juror questioning. On the other hand, if the case is complex, subtle factually, and requiring many inferences, then counsel may want to encourage the Court to decline to permit jury questioning.

One should also consider whether or not the witnesses are articulate and under counsel’s control and therefore well-prepared. It appears that one can safely permit juror questioning under the latter set of circumstances. But if a witness is not articulate or not under contro,l and therefore, not personally prepared prior to trial, the litigator might be well-advised to discourage questions by the jury.

Part of the consideration pretrial is the impact on the juror whose question is not answered. That juror, and the friends that juror has made on the panel, may blame the Court, but the witness could be blamed or perhaps counsel whose witness it is could be blamed.

Counsel should also consider whether or not the panel is generally sophisticated or well-educated. Well-educated jurors may be more likely to ask serious and pertinent questions.

The sole object at trial is to win the case, and anything that occurs during the trial which could potentially lose the case should be avoided by trial counsel. Thus, the above considerations as well as knowledge concerning the tendencies of the trial court should be considered well before trial and become part of the trial plan.

Conducting the sidebar conference is important in the process, as the jurors are attentive to the huddle at sidebar. While voices are kept soft, body language may betray counsel’s objections. It is recommended that body language remain neutral appearing, whether counsel is objecting or advocating the question asked by the juror.

One additional issue remains and that is when to object to the question asked by jurors. Most jurisdictions require an immediate objection, though some jurisdictions would permit objections at the first opportunity outside the hearing of the jury. The objection usually must be made at the time and counsel would courteously state to the Court prior to the Court, stating “Your Honor, I respectfully object to the question asked.” In that way, the appellate record is preserved.

Michael D. Wade and Sharon Walburn are with Garan Lucow Miller, P.C. in Grand Rapids, Michigan.

This article appears in the forthcoming Spring 2009 issue of Verdict, from the Trial Practice Committee.

End Notes

• July 8, 2009 – I would point out that the Texas Court of Criminal Appeals has forbidden the practice of allowing jurors to submit questions to witnesses in criminal trials. But, I know a Dallas state judge who for years allowed his jurors to submit questions. He obviously thought it beneficial, but he said that even the most skeptical lawyer who was subjected to the procedure ended up loving it. I wonder if there are lawyers who have experienced the same who have a different opinion?
• July 9, 2009 – There is a body of research on jury questions. empirical research has revealed significanr increases in juror comprehension and satisfaction with the process. Shari Diamond of the Northwestern Law School has extensive research on this topic.

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