Author(s): Michael D. Wade, Sarah L Walburn

This article will address the tactical considerations for the litigator when confronted with the option of permitting jurors to ask questions during the course ot a trial. lt is clear that the majority of state jurisdictions grant discretion to the trial court on the issue ot whether or not jurors can ask questions of wit- nesses at trial. The cases are gathered at Propriety off Jurors Asking Questions During Open Court During Course of Trial. Some states, such as Michigan, have court rules or standard instructions for dealing with the issue, and some judges are more eager to permit jurors to ask questions than others. In jurisdiction for Michigan, the criminal court rule MCR 6i4l4(E) grants discretion to the trial court as follows:

The Court may in its discretion, permit the jurors to ask questions of witnesses. lf the Court permits jurors to ask questions, it must employ a procedure that ensures that inappropriate questions are not asked, and that the parties have the opportunity to object to the questions.

The Michigan Standard Civil ]ury Instructions provide a inore detailed procedure for permitting jurors to ask questions, as follows:

During the testimony of a witness, you might think of an important question that you believe will help you better understand the facts in this case. Please wait to ask the ques~ tion until after the witness has fin- ished testifying. lf, after the witness has completed testimony and only then, your question is still unan- swered, you may write the question down, raise your hand, and pass the question to the bailiff. The hailiff will give it to me. Do not under any circumstances ask the witness the ques- tion yourself. There are rules that a trial must follow. lf your question is allowed under those rules, l will ask the witness your question (Mich. Civ. JT2.11).

It is clear that the civil instruction regarding questioning by jurors is to be given as a preliminary instruction after the jury is sworn but before any testimony is taken.

Custornarily the process is as follows: Once a jury is seated and sworn, the preliminary jury instructions are given, including one on whether or not the jury may ask questions. lf the jury may ask questions, then notepads and pens are provided by the Court. The jurors must write out their questions, and after the witnesses are questioned by the Court and counsel, the Court will custontar- ily ask the jurors if they have any questions, The juror would then raise his or her hand and provide the written ques- tion to the bailiff, who gives the written question to the Court. At a sidebar, the Court and counsel confer regarding the propriety of the question. The Court may then exercise its discretion, and the Court itself will address the question to the witness who then answers. At that point, all counsel may ask followup questions.

Cases from various jurisdictions pro- vide the parameters for this process. The process should never involve direct questioning by the juror. Permitting jurors to question witnesses should never be routine but should depend on the complexity ofthe case. The ques- tions should relate to admissible facts of the case. The court should instruct the jury not to draw adverse inferences from the Court’s refusal to allow certain questions.

In some courts, this process is virtually automatic, as some judges assume that the jurors should be permitted to ask questions. Other judges are disinclined to permit the process, Both types of judges can be persuaded otherwise.

The trial attorney often merely goes along with the Court’s decision regard- ing questioning by jurors, but the pro- cess is not without danger and prejudice may occur to one side or the other. Thus, before the trial, counsel should consider the pros and cons of permit- ting the jurors to ask questions, Counsel should determine and consider whemer the case is factually complex. lf counsel sees that a case is not factually complex, then he or she may safely permit or pos- itively encourage juror questioning. On the other hand, if the case is complex, factually subtle, and requiring many inferences, then counsel may want to encourage the Court to decline to permit jury questioning.

One should also consider whether the witnesses are articulate and under counsels control and, therefore, well prepared lt appears that one can safely permit juror questioning under the lat- ter set of circumstances, But if a witness is not articulate or not under control and, therefore, not personally prepared prior to trial, the litigator might be well advised to discourage questions by the jury.

Part of the pretrial consideration is the impact on the juror whose question is not answered. That juror and the friends that juror has made on the panel, may blame the Court, but the witness could also be blamed, or perhaps counsel whose witness it is could be blamed.

Counsel should also consider whether the panel is generally sophisti- cated or well educated. Well-educated jurors may be more likely to ask serious and pertinent questions.

The sole object at trial is to win the case, and anything that occurs during the trial that could potentially lose the case should be avoided by trial counsel. Thus, these considerations, as well as knowledge concerning the tendencies of the trial court, should be considered well before trial and become part of the trial plan.
Conducting the sidebar conference is important in the process, as the jurors are attentive to the huddle at sidebar. While voices are kept soft, body language may betray counsel’s objections. lt is recommended that body language appear neutral, whether counsel is objecting or advocating the question asked by the juror.

One additional issue remains and that is when to object to the question asked by jurors. Most jurisdictions require an immediate objection, though some jurisdictions would permit objections at the first opportunity outside the hearing of the jury The objection usu- ally must be made at the time and counsel would courteously state to the Court prior to the Court, stating “Your Honor, I respectfully object to the question asked” In that way the appellate record is preserved.