Dateline: March, 2011, Issue 2

Are juror questions for witnesses helpful or disruptive?

Increasingly, courts are allowing jurors to submit questions for witnesses during trial. Hannaford-Agor and Connelly (2006) of the National Center for State Courts report that a national survey of 8,066 trials found that jurors were permitted to submit questions for witnesses in 14% of criminal trials and 18% of civil trials.

Heuer and Penrod (1994) conducted a national field experiment to explore the effects of juror submitted questions for witnesses. Their research compared 80 cases in 33 states where jurors were allowed to submit questions for witnesses to another 80 cases where jurors were not permitted to do so. Jurors did not ask inappropriate questions, become advocates, or become offended or embarrassed by objections. Jurors who were permitted to submit questions felt they were better informed.

Diamond (2006) examined the effects of juror questions for witnesses across 27 cases with 14 different judges in the Seventh Circuit Jury Project. Jurors submitted questions in 20 of the 27 cases. In the 7 trials where jurors submitted no questions, the judge instructed jurors they could submit questions only once, before testimony began, and post-trial 62% of jurors were not aware they could do so. In the 20 trials in which jurors submitted questions, 10 of the 11 judges asked the jury after each witness if there were any questions; the 11th judge asked only after the first witness and received questions only for that witness; post-trial, 99% of jurors were aware that they could submit questions. Two-thirds of the jurors submitted questions, and judges asked 69% of jurors' submitted questions (Kraus, 2006).

Diamond and colleagues (2006) investigated benefits and consequences of jurors submitting questions for witnesses across 50 civil trials in the Arizona Jury Project. Jurors submitted 829 questions (an average of 16.6 per trial) of which the judge permitted 76% to be asked. Questions were posed for 44% of the live witnesses, and added, on average, about 30 minutes to a trial (including sidebars, objections, instructing jurors, and follow-up questioning). Jurors used questions to clarify testimony, fill in gaps, evaluate the credibility of witnesses, and evaluate the plausibility of accounts offered during trial. The questions jurors submitted for experts reveal efforts to grapple with the content of the evidence. Of all questions submitted, 78% focused on legal issues (e.g., causation, negligence, reasonableness, recklessness, damages, etc.), 17% on witness motivation or character, and 3% on witness competence. Jurors rarely used questions to become advocates, with only 8% of all questions appearing to express an advocacy position. In 30 of the 50 trials, no argumentative questions were submitted. In 10 of the trials, a single argumentative question was submitted. One case was responsible for 10 argumentative questions, and the same juror submitted 8 of those 10 questions. Jurors were philosophical, rather than offended or embarrassed, when the judge did not ask or permit witnesses to answer their submitted questions.

In sum, jurors submit questions for witnesses when encouraged to do so, and use submitted questions to fill in and check their understanding of evidence.

Source Hannaford-Agor, P., & Connelly, C. (2006). Jury innovation in practice: The experience in New York and elsewhere. New York State Bar Association Journal, 78, p. 21.

Source Heuer, L., & Penrod, S. (1994). Juror notetaking and question asking during trials: A national field experiment. Law and Human Behavior, 18, pp. 121-150.

Source Diamond, S.S. (2006). Juror questions at trial: In principle and in fact. New York State Bar Association Journal, 78, p. 23.

Source Krauss, E. (2006). The latest in juries: What's happening around the country that's of interest to New York lawyers and judges? New York State Bar Association Journal, 78, pp. 16-20,22.

Source Diamond, S.S., Rose, M.R., Murphy, B., & Smith, S. (2006). Juror questions during trial: A window into juror thinking. Vanderbilt Law Review, 59, pp. 1927-1972.