Title: Look Who's Talking Now: Juror Questions to Witnesses
Abstract: There is a growing trend across United States, both in state and federal courts, that allows jurors to ask questions of witnesses during course of a trial. There has been a surge of jury innovation research that has led many federal and state courts to allow jurors to ask questions. All of federal jurisdictions that have decided issue have allowed questioning of witnesses, and vast majority of states have allowed practice. The American Bar Association has developed standards for questioning. In addition, IADC has addressed topic in its National Jury Trial Innovations Project. (27) Generally, practice involves one or more of following features: permitting jurors to pose oral questions directly to witnesses; (2) jurors submitting written questions to court, which then identifies admissible questions without first sharing questions with counsel; (3) having jurors submit written questions to court, which then holds a sidebar with attorneys to determine admissibility of questions; (4) permitting jurors to submit questions to court, which then discloses questions to attorneys, who, using their discretion, may incorporate substance of questions into their own questions to a witness; and (5) allowing jurors to ask questions spontaneously. Authority For Juror Questioning The practice of questioning of witnesses has existed in English law since 18th Century and in United States since 1825. (28) While Federal Rules of Civil Procedure do not specifically address whether jurors may ask questions of witnesses, Rule of Evidence 611 (a) arguably gives court reasonable control over mode and order of interrogating witnesses and presenting evidence. The objectives of Rule 611(a) are to (1) make interrogation and presentation effective for ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (29) Those courts that have considered issue have held that matter is within discretion of trial court. (30) State And Federal Court Acceptance Of The Practice The overwhelming majority of federal and state appellate courts that have addressed issue accept questioning and leave issue to sound discretion of trial court so long as trial court follows a number of procedural safeguards. Approximately one-third of states have approved use of questioning. States such as Arizona, Arkansas, Florida, Indiana, Iowa, Kentucky, Nevada, and North Carolina encourage trial courts to permit questioning. In fact, Arizona, Florida, and Indiana have developed specific rules of procedure and/or evidence mandating that jurors be allowed to ask witnesses written questions. Both Indiana and Kentucky Supreme Courts have declared that questioning witnesses is a juror's right. (31) Only Mississippi forbids practice in its entirety, although Georgia, Texas, Nebraska, and Minnesota have partial prohibitions, primarily in criminal cases. On federal level, a majority of federal circuit courts have voiced their reservations about questioning, although they all permit practice. In voicing their disapproval, First Circuit, in United States v. Sutton, said that juror participation ... should be long-odds exception, not rule. (32) In United States v. Ajrnal, (33) and United States v. Bush, (34) Second Circuit ruled that practice is at discretion of trial judge, but they strongly discourage its use. Additionally, Sixth Circuit, (35) Seventh Circuit, (36) and Eighth Circuit (37) also discourage questioning. Furthermore, Third Circuit allows practice after judicial screening of questions, but stated, the dangers of allowing jurors to ask questions orally far outweighs any perceived benefit of allowing questioning of witnesses. …
Publication Year: 2007
Publication Date: 2007-04-01
Language: en
Type: article
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