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.
None of the district court judges or the magistrate judges of the Eastern District of Pennsylvania even mention questions from jurors in their practices and procedures, although as described below, U.S. Magistrate Judge Tim Rice is a strong proponent of the practice.
Third Circuit Judge Thomas Vanaskie, formerly chief judge of the Middle District of Pennsylvania, is an advocate of the practice. When Vanaskie was a trial judge, he asked jurors if they had any questions after the testimony of every witness. He said that the process enhances the fact-finding mission of the jury. Vanaskie doesn’t credit the objections to the process. He said that he has not had experience with jurors becoming advocates, reaching a premature conclusion or reacting negatively if their questions are not asked by the judge. He feels juror satisfaction is increased, and believes the jurors are full participants in the trial.
The process comes under more criticism if used in a criminal trial. McKee, writing for the court in Hernandez, supra, noted there are more potential problems in criminal cases. Mike Engle, past president of the Pennsylvania Association of Criminal Defense Lawyers, said that most criminal lawyers are against questions from jurors. He said that criminal attorneys cringe even when a judge asks questions of a witness. Engle said, "Even though the questions will be filtered by the court, this could have a chilling effect on a defendant’s exercising his or her right to testify if they feel they might be questioned by the persons who are deciding the verdict. The jurors are to determine the facts from the evidence presented. Questions from jurors is not in the best interest of the prosecution or defense, and would open the door to a host of appellate issues." Some critics argue that permitting the jurors to ask questions turns the jury into an inquisitorial criminal body, and the jury is no longer the impartial judge of the facts presented to it by the attorneys.
U.S. District Judge Legrome Davis of the Eastern District of Pennsylvania stated that he has doubts about the utility of permitting juror questions in civil or criminal cases. He said the procedure sets up an odd dynamic between the court and jury and adds another level of vigilance on the court’s part that is unnecessary. He gave as examples whether the court should edit the wording of a question or whether to permit follow-up questions from a juror. Davis believes permitting questions from jurors in a criminal case could affect a defendant’s decision whether to take the stand. U.S. District Judge Sam Sparks of the Western District of Texas does not allow questions from jurors in any case. Sparks told this writer, "This procedure can take away the trial lawyer’s control and method of trying the case. It can lead into inadmissible evidence but more importantly [lead] into areas the lawyers on each side of the case have decided to avoid."
Former U.S. District Judge Robert Cindrich of the Western District of Pennsylvania said that during his 10 years on the bench he permitted jurors to ask questions only in civil cases. He said jurors seldom asked questions, but when they did they were usually very sensible and relevant. Cindrich said that sometimes the question exposed a fact that counsel neglected to cover. He said, "Jurors are the triers of fact and we should make certain they have all the relevant material at their disposal."
Rice is a strong proponent of permitting juror questions. Rice utilizes the process in every civil case, giving the jurors the right to submit questions after the testimony of every witness. He follows the ABA Principles for Juries and Jury Trials, Sec. 13 (2005). Rice told this writer that he is not troubled by a juror submitting a question on an irrelevant matter. He said by instructing the juror that the subject inquired about has nothing to do with the case, the juror is properly directed to the real issues.
The Seventh Circuit conducted a controlled test of the procedure, along with other jury issues in 2005-06. U.S. District Chief Judge James Holderman of the Northern District of Illinois, one of the participants, stated that he was skeptical of the process at the beginning, but became convinced that it assisted the fact-finding process, and does not believe the criticisms of the process are valid.
As the reader can see, there is sharp division of opinion on this process. As the best commentator on a bullfight is the "man who fights the bull," according to President John Kennedy, the best judges of the merits of the process are those people actually in the trial arena, the trial lawyers and trial judges. I have written on this subject several times. At the outset of commencing the project, I felt that permitting juror questions in civil cases was one of those academic proposals that sounded good on paper but was of little use in practice and raised more problems than it is worth. I am now convinced that, with proper procedure, permitting juror questions in civil cases is worthwhile and aids in the fact-finding process. As a former career federal prosecutor and former U.S. attorney, and now criminal defense counsel, I would strongly object to questions from jurors in criminal cases. •
Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of Eastern District Federal Practice Rules, Annotated (Gann Law Books). He can be contacted by email at email@example.com. Vaira has a blog devoted entirely to Eastern District practice at http://petervaira.wordpress.com.