I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied.
First up is allowing jurors to submit written questions for witnesses. As I discussed previously, jurors and judges both overwhelmingly believed juror questions benefited both juries and trials. It is hard to imagine that juror questions would not benefit trials and justice. If you ever have the opportunity for a post-trial discussion with a jury, a common theme is what the jury did not understand about the trial and the questions jurors wanted the lawyers to ask. While it is a little frightening for trial lawyers to give up some control of the trial process, overall both sides are better off with the jurors’ questions answered, removing a huge distraction for jurors. And you can learn much about how a jury is leaning or what you need to do in your case by listening to jurors’ questions.
Of course, as with most things during a trial, the details are very important. The Commission used the following initial jury instruction explaining that written questions could be submitted, that they would be asked only if allowed by the Fed. R. Evid., that they might be revised to comport with the Rules, and that questions may or may not be asked of all witnesses:
In this trial, we are using a procedure that you may not have seen before. As members of the jury, you will be permitted to submit questions for a witness after the lawyers have finished questioning the witness. Here is how the procedure works: After each witness has testified and the lawyers have asked all of their questions, I will turn to the jury to see if anyone has any additional questions. If you have a question, you should write it down and give it to the court staff.
You may submit a question for a witness to clarity or help you understand the evidence. Our experience with juror questions indicates that a juror will rarely have more than a few questions for one witness, and there may be no questions for some witnesses.
If you submit a question, the court staff will provide it to me and I will share your questions with the lawyers in the case. If your question is permitted under the rules of evidence, I will read your question tot the witness so that the witness may answer it. In some instances, I may modify the form of phrasing of a question so that it is proper under the rules of evidence. On other occasions, I may not allow the witness to answer a question, either because the question cannot be asked under the law, or because another witness is in a better position to answer the question. Of course, if I cannot allow the witness to answer a question, you should not draw any conclusions from that fact, or speculate on what the answer might be.
Here are several important things to keep in mind about your questions for the witnesses.
First, all questions mush be submitted in writing. Please do not ask questions orally of any witness.
Second, witnesses may not be re-called to the witness stand for additional juror questions, so if you have a question for a particular witness, you should submit it at the end of that witness’s testimony.
Finally, as jurors you should remain neutral and open throughout the trial. As a result, you should always phrase any questions in a neutral way that does not express an opinion abut the case or a witness. Remember that at the end of the trial, you will be deciding the case. For that reason, you must keep an open mind until you have hard all of the evidence and the closing arguments of counsel, and I have given you final instructions on the law.
The following instruction was used at the end of trials:
During the trial, written questions by some members of the jury have been submitted to be asked of certain witnesses. Testimony answering a question submitted by a juror should be considered in the same manner as any other evidence in the case. If you submitted a question that was not asked, that is because I determined that under the rules of evidence the answer would not be admissible, just as when I sustained any objection to questions posed by counsel. You should draw no conclusion or inference from my ruling on any question, and you should not speculate about the possible answer to any question that was not asked or to which I sustained an objection.
Jurors were allowed to ask questions in 38 trials, and asked questions in 31 of those. 56% of jurors asked at least one question. Judges (63%), litigators (60%), and juries (87%) generally agreed that jurors asked an appropriate number of questions. Most jurors said that their questions were for the purpose of:
- Clarifying information;
- Getting additional information;
- Linking evidence; or
- Covering something lawyers missed.
Judges (77%) and litigators (65%) largely agreed that juror questions increased juror understanding and that they did not harm trial efficiency – judges (75%) and litigators (66%). Even the losing litigators largely believed juror questions enhanced juror understanding. Based upon this data, it appears that juror questions should be widely adopted.