By Dr. Ken Broda Bahm:
The potential ability of jurors to pose a question to a witness by submitting that question first to a judge is a trial feature that always comes up in discussions of jury trial innovations and experimentation. But at a certain point, we really have to stop calling it an “innovation” or an experiment. The practice isn’t really new (it has been used for decades) or untested (it has extensive social science behind it that I’ve written of before). Still, in practice in most venues, its use is the exception rather than the rule. The sluggish pace at which this idea has caught on, as well as continuing doubts over the effects, make the practice of juror questions a poster child for the law’s problem of tradition mattering more than effectiveness.
A new study (Waterman, Bennett, & Waterman, 2016) adds to the weighty evidence in favor of juror questions, with a new twist in finding that those who distrust juror questioning tend to have had no experience with it, while those who have tried it, generally like it. The forthcoming article from Drake Law Review (now available as a download at Social Science Research Network) is authored, not by academics, but by Iowa Supreme Court Justice Thomas Waterman, U.S. District Court (Iowa) Judge Mark Bennett, and U.S. Court of Appeals Judicial Law Clerk David Waterman. Their goal was to put the final nail in the argument. The 64 page article provides an extensive review of law as well as prior social science research, but also includes results of their own multi-venue study of judge and attorney experience and reaction to the juror questioning process. Based on an online survey of 166 state and federal trial judges, and 135 Iowa litigators, the authors find that most had never used juror questions, but also note a dramatic difference between the judges and attorneys who have used the practice, and the judges and attorneys who haven’t. “Our survey data reflect deep and pervasive perceptions of disfavor and apprehension among most, but not all, judges and lawyers who have never experienced the practice,” they write, “The inverse is also true: Most, but not all judges and lawyers who have experienced the practice, hold a much more favorable view of it.” This post will share some of the more specific findings and implications.
Experience Translates Into Support
The team begins with the observation that “Common sense, experience, and social science tell us that jurors allowed to ask questions of witnesses will better understand the evidence.” In addition to at least allowing the possibility for better understanding, juror questioning also helps to identify issues that require further development and to motivate jurors to be more engaged and attentive. Of course opinions differ on those benefits, as well as on the question of whether those benefits outweigh the potential disadvantage of turning fact finders into advocates. The key finding of the survey, however, is that most of this difference of opinion is simply a product of experience. Judges and lawyers who have tried cases allowing juror questions tend to be strongly supportive of the practice, while those who have not tried such cases tend to be more suspicious.
Here is how the overall support breaks down:
And here is how the experienced and inexperienced differ on the more specific concerns.
Taking one of the themes on the other side, the concern that empowered jurors will ask argumentative questions and begin to blur their roles as neutral fact finders, the difference is stark: 66 percent of judges without experience had that concern, but among those with experience, that concern is down to 35 percent. Even within that slice, the authors note that all believed that the problem of argumentative questioning happens either “seldom” (57 percent) or “never” (43 percent).
But a Failure to Ask Still Perpetuates Inexperience
Based on this data, we would expect that initial reservations would give way in the face of experience, and the practice of allowing jurors to ask questions would gain momentum over time. But it hasn’t, and one reason for that is likely that relatively few are gaining the experiences that would alleviate their doubts. Even though it is typically within the trial court’s discretion, juror questioning remains under-utilized. And the number one reason for that among judges is that they’ve never been asked. Fully 41 percent of the judges listed the absence of requests as the primary reason they had not tried juror questions. As one Iowa trial court judge explained, “The issue has never arisen, I have never suggested it, nor has a juror ever requested it.”
So Ask (and Here is How)
It is conceivable that there are cases where you would want a less engaged and lower comprehending jury. A jury that is reacting to top-level themes instead of digging into the testimony might be more favorable to you if your case isn’t so hot at the details level. If, however, you are on the side that benefits from a more active, engaged, and investigative jury with higher overall understanding of the case, then it is in your interest to ask for jurors to be able to ask questions. That is where the last section of the article is especially handy in providing a detailed written protocol, including suggested procedures for the court as well as written instruction language for the jurors. The described procedures have been used by one of the authors, U.S. District Court Judge Bennett, for several years in civil cases, and aim to strike a balance in “enabling but not provoking juror questions.”
The authors conclude with the advice, “We strongly recommend that trial court judges and trial lawyers experiment with allowing jurors to submit written questions for witnesses in civil trials with the appropriate instructions and safeguards set forth above.” But, remember, at this stage, it is not really an “experiment,” it is a tested technique that effectively improves juror understanding as well as attorney and judge perceptions of fairness, at least among those who have tried it.
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Other Posts on Juror Questions:
- Don’t Fear Juror Questions
- Use Juror Questions to Piece Together Your Case Challenges
- Support a Jurors’ Bill of Rights
Bennett, M. W. (2016). A Fresh Look at Jurors Questioning Witnesses: A Review of Eighth Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers–Thomas D. Waterman, Mark W. Bennett & David C. Waterman-64 Drake L. Rev.(forthcoming Spring 2016). Drake Law Review, 64, 2-16. URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2710197
Image credit 123rf.com, used under license,