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Failure to appear after admission to bail or release without bailThe practice of allowing jurors to ask witnesses questions during trial is becoming more common, with at least three states – Arizona, Colorado, and Indiana – requiring it. One of the reasons allowing jurors to ask questions worked so well during the recent CEATS trial in the Eastern District of Texas was Chief Judge Davis’ emphasis on proper procedure. It is evident Judge Davis did his research and accordingly, the experiment was deemed a success in his court.

Attorneys can be reluctant to take a case to trial because they are apprehensive about getting an arbitrary verdict. It has been my experience juries typically “get it,” but if they miss the mark, it may be due to unanswered questions, not being made privy to all the facts they would like to have to make a decision, or because the facts were not communicated well. Allowing jurors to ask witnesses questions during trial could help rectify all of these potential roadblocks to justice.

Listed below are some pros and cons of allowing jurors to ask questions during trial:

PROS:

  1. Participating in the unique courtroom-learning environment helps jurors process information and lessens the probability they might confuse the facts, fail to understand legalese or technical terms, or misapply the law. This is supported by research showing significant increases in juror comprehension when jurors are allowed to ask questions during trial.
  2. Allowing jurors the opportunity to ask questions offers them a valuable tool to clarify witness testimony and fill in gaps. Jurors reject evidence they do not understand, leading them to disregard valuable information if they cannot put it in context. Being able to ask questions helps them to put the evidence together in a way that makes sense to them.
  3. Allowing jurors to pose questions to witnesses empowers them and engages them in the process. Research shows it increases juror satisfaction as well.
  4. Juror questions are a window into juror thinking, which could prompt a needed change in trial strategy and even coach attorneys on how to prepare more effective direct and cross examinations in the future.
  5. Jurors are frustrated when they are not allowed to hear information they deem necessary to make a just decision, as I have often heard while debriefing jurors post-trial. Questions from jurors gives them a voice to let the Court know what information they believe they need to make a fully reasoned, just verdict. It will be interesting to see what happens when a jury repeatedly asks about information withheld from them by a motion in limine.

CONS:

  1. A loquacious juror could potentially extend the length of the trial, although a strong judge could control the situation. This concern could be on the minds of judges and attorneys during jury selection, possibly creating a bias against verbose venire panel members.
  2. A question in and of itself could be persuasive to jurors. The process of reviewing the questions outside of the jurors’ presence with the attorneys’ input should largely preclude this from happening, but it remains a possibility, especially in emotion-ridden trials.
  3. In addition to analyzing the meaning of questions jurors ask, attorneys and trial consultants will be faced with interpreting the impact of questions jurors are not asking. The absence of certain questions could signal jurors are not placing emphasis on important evidence, that they do not understand enough about the testimony to ask questions, or they already have a solid understanding of the subject at hand. They best way to address this issue would be to have a shadow jury and see what questions they have or don’t have as a result of a witnesses’ testimony, in comparison with the questions the jurors are asking.

The bottom line is: Is it better to learn what questions jurors are struggling with before or after trial? Allowing jurors to ask questions of witnesses introduces a new element of strategy to trials and may lengthen them slightly, but overall it appears the benefits outweigh the drawbacks. Judge Davis’ experiment in the Eastern District of Texas is encouraging, and I hope to see it employed more often in Texas and other venues.