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This is the fourth in our series of articles on the Civil Jury Project’s proposed innovations that can resuscitate the American jury trial. Each week we offer a summary of a different innovation, the legal support for its use, and empirical studies on its popularity. Each innovation has been proposed by academics and practitioners, implemented by state and federal judges, and is not prohibited in most jurisdictions. Most importantly, each innovation addresses the main criticisms leveled at juries — that they are too long, too expensive, too unpredictable — and are designed to make trial by civil jury a more desirable form of dispute resolution.
Innovation Four: Juror-Posed Questions
While we would like to pretend otherwise, most trials are exceedingly boring for all involved. This is doubly true for jurors, who ordinarily must sit quietly as well-paid experts testify on obtuse and confusing subjects, and long-winded attorneys present duplicative evidence ad nauseam. It is understandable when jurors get lost in the weeds and decide cases based not on evidence or argument, but on their initial suspicions. Yet, it need not be this way. One way to combat juror confusion and boredom is to allow jurors to ask witnesses questions.
It works as follows: Before a witness takes the stand, the court provides each juror a piece of paper on which she may write a question. When a witness finishes testifying, but before being excused from the stand, the jurors are told they may submit a written question anonymously to the witness. The bailiff gathers the sheets from every juror and passes them to the judge who scans them to see if any juror has submitted a written question. Every juror submits paper to prevent the parties from knowing which jurors are submitting which questions. The judge shows the questions to the lawyers at the bench. If there is no objection, the lawyer who called the witness asks the question to the witness, and the other lawyer then gets an opportunity to cross.
In practice, we have found that the jurors have actually attempted their own version of ensuring anonymity. After a trial was over, one juror explained that she sometimes wrote with her non-dominant hand so that the attorneys would not be able to figure out that many questions had come from her. The attorneys were pleased with the questioning because they were able to see where jurors were getting confused, so the trial teams were able to adjust their presentation of the evidence going forward. They also liked involving the jurors more in the nuts-and-bolts of the trial and ensuring that the jurors’ needs were met by the attorneys before deliberations.
No federal evidentiary or court rule prohibits jurors from questioning witnesses, and every federal circuit court to have addressed the practice has held it permissible. The consensus approach is that whether or not jurors may question witnesses should be left up to the trial judge’s discretion, and there must be efforts to maintain juror neutrality. Many states have adopted the same judicial-discretion approach, with some going even further — such as Arizona, Colorado, Indiana and Wyoming — and mandating that jurors be allowed to submit questions of witnesses. Only a small handful of states, specifically Georgia, Minnesota, Mississippi and Nebraska, outright prohibit the practice.
According to the New York State Jury Trial Project in 2005, 74 percent of judges and 50 percent of attorneys in civil trials believed that juror questions helped jurors to better understand evidence presented.
Despite these benefits, many practitioners are skeptical of juror-posed questions. According to a national survey administered by the Civil Jury Project and the American Society of Trial Consultants, many are wary of the practice because of challenges with respect to objections, time and usefulness. They also worry that when juror-posed questions are inadmissible, and thus not asked or answered, it leaves inquisitive jurors spurned and frustrated. When properly conducted by an attentive judge, however, these concerns are easily managed. For instance, the judge might explain why a given question is objectionable. Similarly, the practice may be halted if the parties feel that it is undermining the proceedings. To be sure, the benefits and ease of administration make it worth giving this innovation a try.
Next week, we will present another innovation to make trial by civil jury better: administering substantive questionnaires before voir dire.
Richard Loren Jolly is an attorney and research fellow at the Civil Jury Project.
Roy Futterman, Ph.D. is an adviser to the Civil Jury Project. He is a jury consultant, clinical psychologist and director at DOAR, Inc., as well as a columnist for Law360.