Title: Juror Questions During Trial: A Window into Juror Thinking
Abstract: Allowing jurors to submit questions for witnesses during trial provides a potentially valuable tool for jurors, as well as a window into juror thinking. Our study of juror questions is based on a close examination of the 829 questions jurors submitted during 50 civil trials and the videotapes of the jury deliberations in those cases. The vast majority of the juror questions demonstrate a problem-solving approach consistent with the jurors' role as fact-finders, rather than as advocates. Jurors use questions to thread their way through the conflicting evidence presented at trial and produce a plausible account of the events that led to trial. Their questions generally do not add significant time to trials. Jurors tend to focus their questions on the primary legal issues in the cases and to direct them to witnesses providing testimony on central issues. A substantial number of juror questions reflect efforts to clarify witness testimony and fill in gaps, but, in addition, almost half of the questions enlist an approach we call Cross-Checking. Cross-Checking occurs when jurors use a process of comparison to evaluate the credibility of witnesses and the plausibility of accounts offered during trial. Discussion regarding answers to juror questions does not dominate deliberations. Rather, the answers to juror questions appear to supplement and deepen juror understanding of the evidence. In particular, the questions jurors submit for experts reveal efforts to grapple with the content, not merely the trappings, of challenging evidence. Few juror questions suggest an effort to prove a point rather than to gather information. The procedures used to guide the questioning process can be crucial. Drawing upon observations of juries in Arizona and the federal Seventh Circuit, we describe procedures to optimize the use of juror questions. The jury has undergone a dramatic transformation from its earliest incarnation when jurors acted as witnesses, investigators, and tribunal. In the modern American jury trial, the parties determine what jurors learn during the proceedings. Jurors of today, assigned the role of audience members until deliberations begin, typically speak in the courtroom only during jury selection and through their verdict at the end of the trial. In light of their enforced silence throughout the trial, jurors have no opportunity to clarify or check on their interpretation of the evidence and they provide few external indications about their thinking as the trial unfolds. Although posttrial juror interviews and jury simulations contribute to our understanding of how jurors react to evidence, these indirect sources are not the on-line reactions of jurors during trial. The modern veil on juror participation that conceals juror thinking during trial, however, is being lifted partially in a small, but increasing, number of American courtrooms. In these courtrooms, jurors are permitted to submit questions for witnesses during trial. The questions that the jurors submit provide a unique window into juror thinking during the trial. The practice of allowing juror questions during trial was familiar at common law,1 but fell into disuse over time. The 2005 ABA Principles for Juries and Jury Trials recently endorsed it,2 and a few states now even require judges to tell jurors that they may submit questions during trial.3 Most jurisdictions, however, leave the choice to the judge's discretion4 and several explicitly forbid juror questions during trial.5 Current general practice in jury trials is to limit juror questions to those submitted to the judge during deliberations. In a recent national survey of jury trials conducted in the past twelve months, judges and attorneys reported that juror questions during trial were permitted in 15% of state and 11% of federal trials.6 Proponents of allowing juror questions suggest that the opportunity to submit questions will enhance juror comprehension and encourage deeper involvement by jurors so that they pay more attention to the proceedings. …
Publication Year: 2006
Publication Date: 2006-11-01
Language: en
Type: article
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Cited By Count: 16
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