This is a procedure that is slowly gaining acceptance in both state and federal courts, albeit with some significant opposition. Questions from jurors to witnesses during trial is promoted by some federal judges, rejected by others, and cautiously permitted by circuit courts with words of reservation. State courts on the whole are more receptive of the process. Appellate courts that permit the practice leave the decision to the discretion of the trial courts. The generally accepted procedure is to require the jurors to write out questions, which are shown to counsel for possible objection, reviewed by the court, and if permitted, asked of the witness by the court. Some courts do not permit the jurors to confer on the questions as that would constitute a premature deliberation.
Chief Judge Theodore McKee of the U.S. Court of Appeals for the Third Circuit, writing for the majority in United States v. Hernandez, 176 F.3d 710 (1999), upheld the district court’s procedure, which was similar to that described above. McKee noted that although a number of federal circuits have permitted the practice, they all expressed concern with the procedure. The federal circuit courts that have considered the procedure did not set forth any bright-line against its use but have all discouraged it. The First Circuit said it should be used sparingly, and it should be the exception, not the rule. The Fourth Circuit said that questions from jurors is a practice fraught with danger. The Second Circuit "strongly discouraged" jury questions. At least 30 states and the District of Columbia have approved its use in some fashion. Mississippi and Nebraska have outlawed its use completely. Georgia, Texas and Minnesota prohibit its use in criminal cases.
