On more than one occasion, I’ve been in court when the judge asked counsel if they would like to allow jurors to submit any questions for witnesses following their testimony. In most cases, judges have indicated they would allow juror questions if both parties agreed, yet attorneys are rarely sure if it is a good idea to permit such questioning.
In our view, deciding whether to allow juror questions should be done on a case-by-case basis, after taking a number of factors into consideration:
Predicting Jurors’ Leanings by Hearing Jurors’ Questions
One potential benefit of allowing juror questions is that it may provide a glimpse into the jurors’ perception of the witnesses, or their general opinion of the case. Juror questions that challenge the witness’ experience or express doubt toward a witness’ testimony may be an indication that the juror found the witness less than convincing. For example, questions that begin with “Didn’t you…” or “Wouldn’t you…” often suggest that the juror is having difficulty believing the testimony. By contrast, questions that seek more information, such as “How does …” or “What is your opinion about…” could imply that the juror trusts the witness and wants to obtain additional information from him or her about the subject matter.
However, be careful not to look too much into a single question – or even the questions posed to a single witness – as some jurors enjoy challenging the testimony of all witnesses, and it may not necessarily be indicative of their leaning in the case. Nevertheless, repetitive questions doubting your witnesses – but not your opponent’s – may be an indication that the case isn’t going your way. In some cases, having an idea for how the jury is leaning may be a benefit, as it can inform decisions whether to settle the case, bargain for a High/Low Agreement, or try the case to verdict. On the flip side, the impression that the jury is against you could make it more challenging to negotiate a fair settlement amount for your client.
Since most courts require juror questions to be submitted anonymously, ask the judge to allow counsel to view the questions, or – even better – to provide copies of the jurors’ written questions, so that you can keep track of whether questions are coming all from the same juror or group of jurors, or whether questions (and the implications of those questions) are shared by several on the jury. Along the same lines, an individual juror’s frequency and sophistication of questioning may be an indication of the juror’s likely role in deliberations as a leader or perhaps a consensus builder. If you used a juror questionnaire during voir dire, you can often determine the author of the question by comparing handwriting to the questionnaires.
Learning What Is Important to Jurors
Another benefit to allowing juror questions is that it provides counsel with some insight as to what the jury finds most important about a witness’ testimony. This can inform trial strategy by telling the lawyer what information should be focused on, or included in, closing argument, and what questions should be asked of other witnesses who will follow. If the subject matter of jurors’ questions is not the testimony or evidence that is helpful to your case, then it may be an indication that you will need to revisit, reinforce, and potentially adjust your themes and the testimony that supports them.
Questions or Answers? Clearing Up Confusion
Often times, testimony that seems clear to the lawyers can be lost on the jury. We frequently engage in post-trial juror interviews where counsel wants us to ask, “What did you think of the fact that X?” or “Why didn’t you consider Y?” These questions sometimes elicit a confused, “Huh? I didn’t know that” or “That’s not what I recall” response. Jurors who may need clarification in order to fully comprehend the testimony can seek it through juror questions. Indeed, I have been in trials where jurors have asked experts, “Could you please explain X in regular people’s terms?” These questions can be a reminder to witnesses to slow down and talk to the jury as members of the public, not colleagues of the profession. It is often better for jurors to clarify their misunderstandings through juror questions than to take those misunderstandings into the deliberation room.
Inadmissible Questions in the Courtroom
Another consideration when allowing juror questions is how the judge will handle questions seeking inadmissible information, as well as what inferences jurors will make from not being able to obtain answers to those questions. If jurors will be permitted to ask questions, then they should be told upfront that the judge will determine whether the witness is permitted to answer the question, and the judge should let jurors know that while some of their questions may not be answered, they should not make any inferences from the fact that a question is not asked. Even so, jurors are human and will naturally want to know, for instance, why the judge won’t allow a question about whether the defendant has liability insurance. Despite any instructions from the judge, the jurors may still speculate that a failure to obtain an answer is an “admission” of the fact. In psychological terms, this is known as “ironic process theory,” whereby deliberate attempts to suppress certain thoughts make them more likely to surface (i.e., telling a juror not to consider insurance is like telling a Psych 101 student, “Don’t think of a white bear”).
As another example, in a product liability action, one juror asked about the history of the product: “Have others been injured in the past?” When interviewing the juror post-trial, he indicated that he assumed the judge didn’t allow the question because the product probably had a history of harming others; otherwise, he reasoned, a simple “no” would have sufficed. Thus, in some cases, the likelihood of jurors asking inadmissible questions – and then speculating as to why they can’t know the answers – may outweigh the benefits of allowing jurors to ask questions at all.
We’ve all heard the legal tenet, “Don’t ask questions you don’t know the answer to,” so allowing jurors to ask their own questions undoubtedly causes heartburn for some lawyers. Thus, another consideration for allowing juror questions is to think about whether there is admissible information that your opponent failed to elicit during deposition that could seriously damage your case. If you are afraid of what may come out of your witness’ mouth should the questions venture into uncharted territory, then perhaps it is best to discourage juror questioning.
Lastly, there are practical considerations to allowing juror questions. In most cases we are involved in, counsel struggles to fit the evidence within the allotted trial calendar, and allowing jurors to ask questions can severely slow down the process. If every question submitted must be reviewed by the judge and counsel at sidebar before posing it to the witness, this can add considerable delay. Then, it is often necessary for counsel to conduct follow-up direct and cross-examination to clarify any responses, which further extends the time allotted for that witness. Thus, when you have concerns about whether the parties can present their cases within the time afforded by the court, it may be inadvisable to allow juror questions.
To Ask or Not to Ask in Court: Final Thought
As you can see, there is no clear answer as to whether it is in your client’s best interest to allow juror questions during trial, but a balancing of the considerations above should help guide lawyers toward the wisest decision for each individual case.
By: Christina Marinakis, J.D., Psy.D. – Director – Jury Research