By Dr. Ken Broda Bahm:
Sometimes gut feelings are at odds with the research. For example, some attorneys and judges have a gut feeling that allowing jurors to submit questions to witnesses will take an inordinate amount of time, introduce irrelevant issues, or turn jurors from neutrals into advocates. Those fears, either tacit or overt, explain why juror questions still tend to be the exception rather than the rule in U.S. courts. As a potential feature in civil and criminal cases in both state and federal courts, juror questions are often allowed, but generally a matter of judicial discretion. That discretion, in turn, is often based on whether the parties request and agree on them or not. Data from 2007 (yes, a little dated, but probably the best available) shows that juror questions are only used in-between one-in-ten and one-in-seven American trials.
The relative scarcity, along with a comprehensive review of the existing data on juror questions, is the subject of a new research report written by Mitchell Frank, Associate Professor of Law at Barry University School of Law (Frank, 2014). The report examines the effects of juror questions on trials, and whether their perceived advantages and disadvantages are actually realized. The 66-page report draws from a variety of sources including a number of studies conducted by Steven Penrod and Larry Heuer in the late 80s through mid-90s, the Colorado Jury Reform Pilot Project in 2000 and 2001, a state-by-state survey conducted by the National Center for State Courts in 2007, and the Ninth Judicial Circuit Survey on Juror Questioning in 2013. The bottom line from Frank’s literature review: “Although the purported advantages were somewhat supported by this research, the findings were overwhelmingly contrary to the fears or beliefs that jury questioning would cause any of the examined ‘disadvantages.'” This post will review the conclusions, but for the full detail on the research results, the article is also worth reading on its own, worth citing in a motion, and it is available for download free at the link above.
The Benefits Are Generally Realized
Here’s what the research says about the benefits of allowing jurors to ask questions.
Better juror understanding. Jurors surveyed are more satisfied that they had sufficient information to reach a responsible verdict when they were able to ask questions. Post-verdict, they are left with fewer doubts about the evidence and about their verdict.
Broader Empowerment and Engagement. The ability to ask questions, even when it isn’t exercised, causes jurors to feel more empowered and actively engaged in their verdict.
Frank’s conclusions regarding the advantages are tentative, because there are some advantages to juror questioning that are perceived more than they’re actually proven. For example, attorneys tend to believe that juror questions might alert them to issues they hadn’t considered, but that result doesn’t bear out in the survey data. In addition, the “helpfulness” of the questions in practice tends to get low marks. While judges and attorneys are usually satisfied with trial outcomes, that satisfaction isn’t influenced by the presence or absence of juror questions.
At the same time, there are two pretty profound advantages. At least when you feel you have the better case (which, I acknowledge, isn’t always), then a jury who has more understanding and more confidence in that understanding as well as more engagement and perceived power is likely going to be to your advantage. In addition, when judges and attorneys use it, their opinion of juror questioning changes for the better. Frank also notes, “For jurors themselves, there is great enthusiasm for the right to ask questions of witnesses and to be a true participant in their trials — and also, in their view, bringing significant benefits from the use of this procedure.”
The Fears Are Generally Not Borne Out
The larger story from Frank’s review is in the complete lack of support for the perceived problems in juror questions.
No Loss of Control of the Trial Process. Research results didn’t show jurors using their questions to execute their own strategy rather than following counsel. Attorneys surveyed after use of questions, did not see loss of control as a problem.
No Excessive Time Spent on Juror Questions. If judges and attorneys fear losing precious trial days as jurors chase irrelevant issues, that concern has not been borne out either. The average amount of trial time spent on jury questions only turns out to be about 12 minutes.
No General Shift to Inappropriate Issues. The concern that jurors will ask off-the-wall questions, and counsel will be reluctant to object, isn’t shown in the surveys. Rulings outside the presence of the jury seem to solve the problem, and judges are effectively able to screen. In addition, questions are generally relevant.
No Juror Anger When Their Questions Aren’t Allowed. The research doesn’t show evidence of jurors becoming embarrassed or angry when their questions aren’t allowed. Neither judges nor attorneys observed this effect. It was rare for judges or attorneys to see any unfavorable reactions from jurors after a question was declined.
No Loss of Jurors’ Role as Neutrals. Once armed with the ability to interrogate, the fear is that jurors become advocates rather than neutral fact-finders. That effect remains unproven, with judges and juries still agreeing on verdicts in cases allowing questioning, neither party receiving a less favorable result, and no observed tendency for jurors to become more adversarial or argumentative as a result of questioning, at least not in a way that would affect the parties.
No Disadvantage to Criminal Defendants. This seems to be one of the stronger beliefs limiting the use of juror questions in criminal cases: Defendants don’t want them because they don’t want jurors to join the prosecution as investigators. If prosecutors don’t meet their burden because critical questions aren’t answered, then so be it, they reason. The problem with that line of thinking, in addition to the fact that no such skew in verdicts is noted in the research, is also that it assumes an overly literal reliance on burden of proof. Legally, the burden is on the state but, psychologically, it is often on the defense. In practice, jurors would be as likely to focus on a topic that introduces reasonable doubt as they are to focus on a topic that reinforces guilt. In addition, the researchers looked at whether juror questions would impact the criminal defendant’s decision to testify, and again there was no proof of that effect.
No Overemphasis on Jurors’ Questions. The fear that jurors will focus too much on the answers to their own questions to the exclusion of other evidence is also not supported in the research. Jurors were modest in evaluating the usefulness of their own questions, and tended to spend less than 10 percent of deliberation time on answers to their own questions.
No Overall Prejudicial Effect. If there are any general differences in case outcome as a result of allowing jurors to ask questions, researchers have not been able to find them. Looking at judge-jury agreement, as well as attorney satisfaction, the studies found no prejudicial effect.
But Still, Juror Questioning is the Exception Rather than the Rule
Even with the benefits being generally confirmed and the harms overwhelmingly refuted, juror questions are still used only in about 10 to 16 percent of cases, depending on case type. In some cases, it is because the questions aren’t allowed, but more often it is a matter of discretion. As Frank notes in his review,”The apparent extent to which juror questioning is used is markedly inconsistent with the extent to which it is authorized.”
When juror questions are discretionary but not used, it is generally not because the judge prevented it. Around 80 percent of the judges asked in the Ninth Judicial Circuit survey in 2013, indicated they haven’t used jury questions because they haven’t been asked. There may be cases where, based on the unique strategic needs of your case, you want a jury that is less engaged or less empowered, but it is unlikely that there are many cases where both sides feel that way. When advocates base their reluctance to ask for jury questions on habit or on any of the reasons listed above, they’re not on firm ground. “Asserted reasons for this lack of use,” Frank concludes, “are statistically unsupported, have been disproven, or, are based more on feeling than logic.” So in most cases, it makes sense to just go ahead and let the jurors ask.
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Other Posts on Juror Questions:
- Use Juror Questions to Piece Together Your Case Challenges
- Treat Fact Finders as InformationWolves, Not Information Sheep
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Frank, M. J. (2014). The Jury Wants to Take the Podium-But Even with the Authority to Do So, Can It? An Interdisciplinary Examination of Jurors’ Questioning of Witnesses at Trial. Am. J. Trial Advoc., 38, 1-203.
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