It’s rare, it’s divisive and proponents are calling for more judges to give it a shot: letting jurors ask questions of witnesses via written submission.
For more than a century the practice has been embraced by a small number of judges who believe it engages jurors and keeps them alert while they’re determining the correct outcome of a case. During a recent webcast discussion on the topic, Dallas County District Judge Maricela Moore explained how the process worked in a civil jury trial she presided over and why, after trying it once, she’ll continue doing so.
“We all, in the justice system — whether you’re seeking relief or defending against a claim — we’re trying to get to the right resolution. We’re not just trying to win,” she said. “If people say, after hearing about this, ‘Well, we don’t want to give lawyers a tool to change their strategy midtrial,’ I would disagree.”
“Give jurors what they need to get to the right verdict,” she said.
Judge Moore was encouraged to give it a shot, she said, after speaking with U.S. District Judge Amos Mazzant. He told The Texas Lawbook this week as he began presiding over his 101st jury trial, that he implements the practice in every civil trial and occasionally criminal trials as well.
“This whole process allows the jury to immerse themselves in fact-finding mode, and that’s their goal, to figure out the facts of the case” Judge Mazzant said. “And hearing the jurors’ comments after they have an opportunity to ask questions, it’s a wonderful thing to see how engaged they are in the proceedings and it’s so refreshing to see.”
But the majority of judges seemingly believe the question-asking is best left to the attorneys on both sides. Chief District Judge Rodney Gilstrap, Judge Mazzant’s colleague in the Eastern District of Texas, is one such judge who does not allow jurors to ask questions. He told The Lawbook that the jury trial system is “based on effective advocacy by counsel.”
“Questions from the jury could well help or hurt the advocacy of the lawyers, and this puts the jury in a role they were never intended to fill,” he said. “It injects the jury into a role that counsel is responsible for. In short, it blurs the lines and roles between the jury and counsel.”
History and Popularity
There’s case law dating back to 1907 that endorses the practice of letting jurors ask questions, said Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts.
But despite its lengthy history, Hannaford-Agor pointed to a 1993 article on jury trial innovations — authored by the then-presiding judge of the Maricopa County Superior Court in Arizona, Judge B. Michael Dann — as what really gave the idea traction.
“These proposals spurred a great deal of empirical research on these practices, especially on juror questions to witnesses, which largely confirmed that they improved juror comprehension, they were not prejudicial to the parties, and they were not overly burdensome to the judge or lawyers in the case,” Hannaford-Agor said. “Based on empirical findings about the positive impact of this technique, the NCSC Center for Jury Studies strongly supports its use.”
According to NCSC data on the topic, there is either a statute on the books or a court rule permitting the technique in Alabama, Arizona, Colorado, Connecticut, Florida, Hawaii, Idaho, Indiana, Missouri, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Tennessee and Utah.
In a 2007 study of jury trial practices, the NCSC reported letting jurors ask questions of witnesses was permitted in 16 percent of civil trials in state courts and 11 percent of civil trials in federal court.
The Texas Office of Court Administration has not issued guidance on the practice.
Structure of the Process
Taking some notes from Judge Mazzant, Judge Moore explained in detail during the panel discussion — which included input from the trial attorneys on both sides as well as a juror — what safeguards were in place to ensure no one was prejudiced by letting the jurors ask questions.
- Before testimony began, Judge Moore said she explained that every question from the jury is “incredibly important” but may not be asked because it could be directed to the wrong witness or for another legal reasons.
“I took that off of the lawyers,” Judge Moore said. “I didn’t want the jurors to think one of these attorneys is hiding something, they don’t want me to know something. I made sure they knew every question they asked was important.”
- At the end of a witness’ testimony every juror was required to either write a question down on their notepad or write that they had no question at all, which Judge Moore said ensured nothing could be read into how engaged each juror was.
- The bailiff would collect the notes and hand them to the judge. She and the attorneys, Don Godwin of Godwin Bowman and Stephanie Clouston of Alston & Bird, would step into a back hallway to review them.
“If either attorney said ‘We don’t want the question asked,’ we didn’t go any further,” Judge Moore said. “That was an automatic veto. But if all three parties agreed … we would go back into the courtroom and I, the judge, asked the witness the question and then we moved on.”
Clouston said during the webcast that she and opposing counsel Godwin did have objections to certain questions.
“But most of the time it’s because that wasn’t the right witness,” she said.
Godwin, who has tried cases before juries in 30 states, said the trial before Judge Moore was the first time he had experienced the process of letting jurors ask questions.
“When she first brought it up, I was a little taken aback by it,” he said. “But I thought: ‘You know what? This could be exciting.’”
The questions from the jury did give Godwin a chance to change his trial strategy, he said.
“I realized I was not as clear as I needed to be with some jurors in my questioning of the witnesses,” he said. “I saw I’ve got some shortcomings here … it was a real eye-opening experience, the benefit of a juror telling you in real time what you’re not effectively communicating.”
In the trial before Judge Moore there were claims for $40 million on one side and $100 million on the other side in a dispute over the sale of a windows business. The jury ended up awarding one party $120,000.
Both Godwin and Clouston said they would advocate for the process in future jury trials.
“I did not think it took any extra time, it was not time consuming at all and probably made us, on the lawyers’ side, more efficient and focused in making sure we were getting any loose-end questions asked if we saw those,” Clouston said. “I think it’s something all judges should use.”
Federal Judges Take Different Sides
Judge Gilstrap, among the majority of judges in Texas who do not embrace the process of allowing jurors to ask questions, shared some reasons why he doesn’t believe there’s a place for it in the justice system.
For starters, jurors are instructed as soon as they are empaneled not to discuss the case with each other or anyone else until deliberations begin. But that instruction is compromised, he said, when jurors get to ask questions.
“Allowing jurors to submit or ask questions during trial unavoidably means the jurors are, by their questions, communicating with each other before all the evidence has been presented,” he said.
The process of having the presiding judge screen questions is problematic too, he said, because it “creates a real risk of juror discontent” in the event a question isn’t asked.
“Instead of focusing on the remaining evidence, the juror whose question was not asked is likely thinking about why his or her question wasn’t good enough to be asked when his or her fellow juror’s question was asked,” he said.
But for Judge Mazzant, who said he’s had almost exclusively positive feedback on the process both from participating jurors and winning and losing attorneys, he won’t be stopping the practice any time soon and wants more judges to join him.
“For all the naysayers out there, try it,” he said. “You’ll like it.”