Juror Notetaking and Juror Questions - Part Three

By John DiMotto

In a previous post, I commented on the potential value of allow jurors to ask questions of the witnesses called at trial. However, its value is closely related to how the judge instructs the jury on its use.

Instruction to jury:

After the jury has been selected, and before the attorneys give their opening statements, I give preliminary instructions. These touch upon what the jurors can expect during the trial (the phases of the trial leading up to their deliberations) and what their responsibilities are (I call their responsibilities the "dos and don'ts" of jury service.).

In particular, I tell them that if a question has not been asked of a witness that a juror thinks he/she needs the answer to in order to arrive at a verdict, the juror may submit a question. I tell them that when the attorneys have finished questioning a witness, before the witness is excused I will ask the jurors whether any of them have any questions for the witness. I tell them this is not a verbal exercise and that the question/s must be submitted in writing and done so anonymously. I then collect the questions which are passed forward to the court and then I review the questions, on the record, with the attorneys in chambers. I tell the jurors that I apply the same rules of evidence to their questions as I do to the attorneys' questions and that if a question is appropriate I will ask it of the witness. If I deem it is not appropriate, the question will not be asked. I also tell the jury that if I can give an explanation to the anonymous juror - of course it is given to the entire panel - when a question is not asked I will do so. For example, I tell them that if a question is asking a witness to speculate, it will not be asked. I further tell them that sometimes the explanation is too complicated and that a question/s will not be asked and the juror who submitted the question must not speculate as to the reason the question is not being asked and should not speculate as to what the answer might have been. I also tell them that when I am done with their questions that the attorneys get an opportunity to ask follow up questions before the witness is excused. Additionally, I tell the jurors that I realize that they might not think of a question for a witness until they have heard other witnesses testify but that they cannot ask that a witness be called back to the stand. Finally, I stress that they should not consider themselves taking over for the attorneys but I do this to assist them in making a fair and just decision.

Potential value of juror questions:

Puts the jurors at ease.
Highlights how important their service is.
Highlights how they must follow the rules in order to ensure the integrity of what they are doing.
Highlights the investment that everyone is putting in to the case.
Highlights that there are rules for all participants in the case that must be followed.
Give the attorneys an insight as to what is on the minds of some of the jurors.
Lets the attorneys know whether they are getting their case across to the jurors, and if points are being missed the attorneys will have the opportunity to find a way to get them across.

While allowing juror questions may add time to the trial it is time well spent.