Jack of All Trades, Masters of None: Giving Jurors the Tools They Need to Reach the Right Verdict

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Jack of All Trades, Masters of None: Giving Jurors the Tools They Need to Reach the Right Verdict

Marina Garcia Marmolejo

Volume 28

, Issue 1

28 GEO. MASON L. REV. 149 (2020)

Introduction

If trials exist to develop truth,¹ then jurors, as the final arbiters of that truth, should be allowed to ask clarifying questions of witnesses whose credibility they are judging. This procedural courtesy²is not a recent phenomenon.³ Although still systemically underutilized and primarily discussed under the genre of “juror innovations,” the practice of allowing jurors to ask questions of witnesses during trials (“the practice”) was once “familiar at common law” until eventually falling into mysterious “disuse.”⁴ Even so, fast forward two centuries—four decades of scholarship and empirical data largely debunk the most commonly held beliefs and concerns against using the practice. Judges, jurors, and practitioners experienced with the practice seem to overwhelmingly support its use, with the inverse being true of those lacking familiarity.

I have spent the last two decades collaborating with lawyers and judges around the world⁵ who are actively transitioning from an inquisitorial system of justice to an adversarial system that closely resembles ours.⁶ My front row seat in these historic efforts—not only to build a system of justice from the ground up, but to fulfill constitutional promises that, in some countries, have been pending for centuries⁷—has prompted a closer look at our own system of justice and its essential building blocks like the right to trial by jury. Although juries are rightfully recognized as the purest expression of democratic governance,⁸ our deeply engrained systemic preference for the status quo jeopardizes our opportunity to have jurors’ full and complete engagement.⁹

With a mandate to render a true and correct verdict in the case before them, jurors raise their right hand, swear an oath, and in a matter of mere seconds are figuratively robed as the judges of the facts. And it is with this interim judicial title that jurors are entrusted to separate the wheat from the chaff as they meticulously cull through the evidence before them. Even though judges routinely ask questions of witnesses during trials, jurors are not afforded the same professional courtesy. As such, it is time for judges to reevaluate our practices in order to foster a more juror-centric approach, given the importance of the burden placed upon jurors as the final decision makers.

On this backdrop of introspection, this Article analyzes the benefits of allowing jurors to ask clarifying questions during trial—a practice which periodically resurfaces as innovative judges,¹⁰ practitioners, or even jurors question whether it is allowed. Those familiar with the practice report great satisfaction and advocate strongly for its expanded use. Those unfamiliar with the practice remain vocal opponents whose primary concerns appear to be rooted in instinctive fear and speculation of the “parade of hypothetical horrors” that could possibly manifest.¹¹ And to the extent the practice is allowed in either state or federal courts, it is predominately utilized in state court and in civil trials.¹²

While the perceived pros and cons appear to remain somewhat constant, we now have the benefit of empirical data and studies, which not only seem to debunk the most commonly held beliefs and concerns but also confirm that the benefits far outweigh the dangers.¹³Consequently, the goal of this Article is simple: to demystify the practice of allowing jurors to ask clarifying questions in trials by expanding upon the descriptive, analytical, and normative discussions surrounding the practice. This Article addresses the efficiency of allowing the practice, given its minimal impact on the length of a trial, and the fairness of allowing the practice, given jurors’ increased job satisfaction and comprehension of the evidence presented at trial.

This Article proceeds as follows: Part I examines the participatory nature of juries and explores the lost opportunity for jurors to be fully engaged as factfinders. It elaborates on the absence of a doctrinal reason not to allow the practice. Part II provides a historical background. It briefly discusses the two most renowned empirical studies that show the practice is efficient, effective, and highly favored by those familiar with it. Part III addresses the primary objections, such as the potential effect on the adversarial system. It offers empirical and theoretical support to counter the most commonly held concerns. Part IV provides a descriptive analysis of a five-week criminal trial in which I successfully employed the practice. It explores the effect on trial length and deliberations. Part V summarizes survey data to support the value of the opportunity for jurors themselves who report not only greater job satisfaction, but greater confidence in ultimate verdicts rendered. Part VI acknowledges the potential pitfalls and explains how they can be mitigated through judicially enforced protocols. It provides a comparison of two trials where I allowed the practice without the benefit of carefully crafted procedures with one that did. Finally, because research shows that experience with the procedure results in greater enthusiasm and overall approval ratings, I provide a procedural and substantive roadmap for judges to follow in the hopes of encouraging expansion of the practice to criminal jury trials.

I. Juries Are an Essential Part of Our Democracy

“I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”¹⁴

The desire to be free from tyranny and oppression served as the primary catalyst for the American Revolution, which resulted in the creation of a nation that would be governed by the people and for the people.¹⁵ A nation where ordinary citizens would be given a voice and the ability to directly participate in government.¹⁶ The right to trial by jury was so important to our founding fathers that it was provided for in our Constitution.¹⁷ Unsurprisingly, our founding fathers were not alone in envisioning this type of government. In 1853, Argentina’s founding fathers also provided for the right to trial by jury in their Constitution.¹⁸ Only recently has Argentina begun implementing trials by jury, in an earnest attempt to pay back a 150-year-old constitutional debt to its citizenry.¹⁹ I have borne witness to Argentina’s meticulous structuring and implementation of jury trials one province at a time and to the people’s passionate embrace of this gift²⁰—one that Americans have lived with for so long that, perhaps, we have unwittingly taken it for granted.

Argentina’s veneration of juries and what they represent—freedom from government oppression, transparency, accountability, and direct participation in government²¹—has prompted my review of the United States justice system, which at times seems to be in auto-pilot mode given the perception that it is generally working as it should be. And most of the time it is, given the numerous procedural and substantive safeguards, vigilant oversight, and participation of all the parties. However, this does not relieve us of our duty to continuously reevaluate our trial processes and procedures to ensure their fairness and compliance with constitutional guarantees. This is particularly relevant considering advances in technology and the evolving generational culture from which jurors are and will continue to be selected.²²

A. Juries as Participatory

“The jury system is about people having the power to make decisions about their lives in their own communities . . . .”²³

While we may feel more comfortable thinking of jurors as nothing more than “blank slates”²⁴ or passive observers,²⁵ the fact is that our system of justice demands their active participation from the moment they receive a jury summons to appear in a court of law. Literally plucked from their daily lives and obligations to fulfill their civic duties²⁶—people walk in as ordinary citizens and emerge as the most powerful figure in the courtroom. Summoned on a random basis, most jurors do not possess any legal background or training, yet they are placed in a position as the final decision makers in complex legal disputes.²⁷ Despite the ad hoc jury selection process and the lack of formal legal training, studies confirm that jurors possess a genuine desire to learn and reach the correct verdict.²⁸ Studies also confirm that judges can help jurors by giving them the necessary tools to do the job they have been called to do.²⁹

Unfortunately, jurors are sent mixed signals as to their proper role. On one hand, during the voir dire process,³⁰ they are encouraged to be openly vocal, to the point of erring on the side of caution by sharing more rather than less information regarding a myriad of topics and subject areas designed to expose preconceived notions and biases. They are instructed to openly, and even privately at the bench if necessary, discuss their views as the judge and the lawyers question them extensively.³¹ Those surviving elimination ultimately comprise the jury who is administered a final oath to follow the law.

From this point on, a switch in permissible dialogue and interaction occurs. The once open, frank discussion between jurors, judge, and lawyers is permanently closed as jurors are instructed to now sit back and assume the role of passive observers throughout the entire trial.³² This role requires that jurors wait until the close of the case before they may ask any questions during the deliberation process.³³ But as required by law, deliberations are conducted by the jurors in secret, and once commenced, judges may not provide jurors with any additional evidence.³⁴ Nor is it permissible or advisable to clarify evidence, even if these clarifications may otherwise have been relevant had the practice been allowed during the trial.³⁵

Consequently, as judges we must ask ourselves whether we are truly providing jurors the necessary tools to do their jobs to the best of their ability.³⁶ Toward that end, it is imperative we adjust the jury’s long-perceived role as a “passive receptacle of information, to a more involved and interactive participant” that is equipped to resolve factual disputes at trials with the proper judicial oversight.³⁷ Interactive participation does not equate to jurors usurping the role of the parties. It simply means jurors may seek clarification of the evidence already before them in order to improve their comprehension and competence as the ultimate fact finders.³⁸

B. Juries as Trustworthy Judges

“The search for truth is central to the legitimacy of a trial’s function. If the trial does not effectively develop the facts and comprehensibly present them to the factfinder, justice is serendipitous.”³⁹

From the moment jurors are empaneled, we implicitly trust their ability to follow every legal instruction from the presumption of innocence to the requisite burden of proof and every admonishment and cautionary instruction given to them throughout the trial.⁴⁰ We expect jurors to use common sense and be true to their oath to serve as impartial, neutral judges in an adversarial system of justice.⁴¹ We further highlight the importance of their role as the ultimate finders of fact in contrast to the judge’s allegedly limited role as the legal arbiter.⁴²

Yet, even though judges will neither deliberate nor render a verdict during jury trials, judges are authorized to and routinely ask questions of witnesses under the auspice of seeking clarification in order to help the jury better understand the evidence.⁴³ Given the basic, uncontested premise that understanding the evidence is essential to not only making the best decision but also the right one, it makes little sense to prevent the actual decision makers from seeking their own clarification of evidence that everyone (lawyers and the judge) has agreed is properly before them.⁴⁴

History has long demonstrated the need for judges to reevaluate and adapt trial procedures to accommodate changing times and jurors’ needs.⁴⁵ For example, the long-held tradition of prohibiting jurors from taking notes during trial is now almost universally rejected and for good reason—the lack of doctrinal support for the prohibition and the positive effects of allowing jurors to take notes during trials, which vary in length and complexity.⁴⁶ Another significant procedural trial change, now mostly seen as commonplace, is a judge’s provision of legal instructions to jurors both at the beginning and end of the case in order to initially help guide jurors as the evidence is being presented.⁴⁷ A final example is a judge’s decision to allow jurors to take a copy of the final legal instructions, which even in the simplest of cases routinely exceed thirty pages, into the deliberation room in order to assist them with the application of the law to the particular facts of each case.⁴⁸ Given the confirmed benefits of ⁴⁹ and common sense approach to these procedural trial modifications, it is my hope that the practice of jurors asking questions will one day gain the same conventional acceptance as allowing jurors to take notes.

II. The History of Juror Questioning

There are recorded incidents of jurors asking questions during trials dating back to the 1800s. A review of the oldest recorded published case, State v. George,⁵⁰ suggests that the brevity of the discussion by the Iowa Supreme Court is indicative that the practice was, at that time, commonplace or at least not an oddity.⁵¹ It is unknown, however, why the practice did not continue or why it did not become a part of regularly accepted courtroom practice and procedure. To date, only a small number of states have changed their laws and court rules to allow jurors to ask questions, with only a handful of states actually requiring it.⁵² Although the practice was once thought to be a topic that would garner intense Supreme Court scrutiny,⁵³ it has largely avoided the limelight. Instead, it continues to prompt mostly introspective curiosity, given the results of empirical studies which demonstrate the practice is efficient, effective, and highly favored by those familiar with it.⁵⁴

Pioneers in the field of juror innovations have spent decades studying the role of jurors and best practices in jury trial procedures. Former Judge B. Michael Dann is one of those pioneers. His scholarship is credited for “revolutioniz[ing] contemporary thinking within the legal community about juror decision-making and the court’s obligation to facilitate the ability of jurors to fulfill their role in the American justice system.”⁵⁵ Judge Dann’s article, “Learning Lessons” and “Speaking Rights”: Creating Educated and Democratic Juries,⁵⁶ provided the impetus for many of the jury improvement efforts implemented in both state and federal courts.

Originally published in 1993, Judge Dann’s article inspired and continues to inspire concerted efforts by bench and bar organizations across the country to study and implement best practices in jury trial procedures.⁵⁷ The results of these studies provide empirical support for the proposition that there is no doctrinal reason not to allow the practice.⁵⁸ Judge Dann’s article challenged the traditional view of jurors by using his research results to show that many in-trial juror restrictions (e.g., prohibiting jurors from taking notes and asking questions of witnesses) “not only failed to preserve juror impartiality, but actually interfered with jurors’ ability to remember and understand evidence presented at trial and to render informed decisions in jury verdicts.”⁵⁹

A. Noteworthy Empirical Studies

Undoubtedly, state courts have led the charge in jury trial innovations,⁶⁰ serving as the primary laboratories for the practice and the impetus for a number of important research projects; however, federal courts have also made important contributions.⁶¹ Scholars widely agree that the two most renowned studies in this area are the Arizona Jury Project and the Seventh Circuit Bar Association American Jury Project (“the Seventh Circuit Project”).⁶² Both are discussed below, specifically as they pertain to the practice.

1. The Arizona Jury Project

The Arizona Supreme Court created the Arizona Jury Project in 1993 with the principal goal of improving juror comprehension and increasing juror participation in their process of factfinding.⁶³ The Arizona Jury Project was tasked with responding to three principle concerns: “The lack of jury representativeness in an increasingly diverse society, enforced jur[y] passivity during trials and unacceptably low levels of juror comprehension of the evidence and of the court’s instructions.”⁶⁴

The result of the Arizona Jury Project was a report consisting of fifty-five recommendations, of which fifteen were ultimately adopted by the Arizona Supreme Court.⁶⁵ It included a detailed analysis of 829 questions submitted by jurors in fifty civil trials, for which comprehensive results found:

[T]hat juror questions generally do not add significant time to trials and tend to focus on the primary legal issues in the cases. Jurors not only use questions to clarify the testimony of witnesses and to fill in gaps, but also to assist in evaluating the credibility of witnesses and the plausibility of accounts offered during trial through a process of cross-checking. Talk about answers to juror questions does not dominate deliberations. Rather, the answers to juror questions appear to supplement and deepen juror understanding of the evidence. In particular, the questions jurors submit for experts reveal efforts to grapple with the content, not merely the trappings, of challenging evidence. Moreover, jurors rarely appear to express an advocacy position through their questions.⁶⁶

The success of the Arizona Jury Project is credited to the Arizona Supreme Court’s directive to the Committee (made up of former jurors, lawyers, academics, and judges) “to think outside the traditional jury box” as they consulted current social science studies without being “bound by traditions and myths” previously defining the jury trial process.⁶⁷

2. The Seventh Circuit Project

The Seventh Circuit Project is the federal equivalent to the Arizona Jury Project. It, too, examined the practice of allowing juror questions for witnesses during trials.⁶⁸Although published over a decade ago in 2008,⁶⁹ it currently represents the most comprehensive study done at the federal level: “Twenty-two federal district judges participated in the fifty jury trials that formed the basis for the Project. In total, four hundred and thirty-four jurors, eighty-six lawyers, and twenty-two federal district judges completed questionnaires.”⁷⁰ The results showed that the vast majority of judges believed that juror questions increased the fairness of the trial.⁷¹And while the perspective of judges is important, most important was the fact that the vast majority of jurors themselves confirmed that their ability to ask questions increased or helped them better understand the evidence.⁷²

Former US District Judge James F. Holderman, a participant in the Seventh Circuit Jury Project and a self-proclaimed great admirer of the US jury system who has “observed thousands of jurors striv[ing] mightily to discern the facts from the evidence in all types of federal jury trials,”⁷³ expanded upon his experience. His findings validate the following significant concepts seen throughout the studies:

[M]ost of the jurors’ questions sought information to clarify evidence that had been presented during the lawyers’ questioning of the witness.
Rarely did the jurors’ questions seek testimony on a subject that was inadmissible, and when such questions were submitted, [the judge] explained to the jury why the question could not be asked and brought the jurors’ focus back to the pertinent evidence.
The jurors’ questions provided a window into the jurors’ thinking and areas of interest, which allowed the lawyers beneficial insights during the trials that the lawyers would not have otherwise had.
The jurors appreciated the opportunity to inquire. They were more engaged and attentive to the evidence presented by the lawyers. Any confusion they had about the evidence was dispelled by the answers provided to the jurors’ questions.
After the jurors reached a verdict, they appeared to be more confident of the correctness of their decision because they were confident that they had understood the evidence.⁷⁴

All in all, the Arizona Jury Project and the Seventh Circuit Project confirm that “[j]urors tend to be enthusiastic about the opportunity to submit questions during trial.”⁷⁵ Jurors also “rated themselves as better informed than those who were not permitted to [ask] questions.”⁷⁶ And “in a Colorado field experiment involving 239 criminal trials, jurors who were permitted to submit questions were more likely to agree that they had sufficient information to reach a correct decision.”⁷⁷

The findings from these and the most recent study from 2015⁷⁸ soundly “support the view that juror questions serve [an important] clarifying function.”⁷⁹ The reported benefits—increased comprehension of the evidence, greater juror attentiveness and participation, overall greater job satisfaction, more efficient deliberations, and confidence in the ultimate decision rendered—far outweigh any hypothetical dangers or concerns.

III. Objections to Juror Questioning

Various objections to the practice have been raised through the years, most based on speculative fears and all seemingly lacking in empirical support.⁸⁰ Nonetheless, because widespread adoption of the practice would still, to this day, represent a significant change in trial procedure, neither “predictions” nor “discussions” should “be sufficient to determine its merit or lack thereof.”⁸¹ Instead, we must carefully consider the studies which have statistically tested the practice and have discussed the purported advantages of allowing juror questioning, as well as the disadvantages of allowing this questioning if it is not managed correctly via judicial protocols.⁸²

The primary concerns surrounding the practice seem to revolve around six hypothetical effects on the adversarial system including, but not limited to, the following: “interference with trial strategy[,] loss of control over witnesses,”⁸³distortion of the juror’s role as a neutral factfinder, jurors usurping the prosecution’s role, jurors asking inappropriate questions, and undue delays. Each concern will be addressed in turn below.

A. Interference with Trial Strategy

Allowing jurors to pose clarifying questions to witnesses during trial does not change our basic adversarial system. Trial lawyers in the case remain the sole presenters of the evidence and advocates for their respective clients. Jurors may not solicit or in any way request additional evidence. They may only seek clarification of the evidence that the parties, and ultimately the judge, have previously vetted in accordance with the rules of evidence and decided is ripe for their consideration.

Judicial protocols can further help eliminate concerns by providing jurors with clear and precise instructions as to the type and permissible scope of the questions they may ask. Judges should also require that jurors write their questions down instead of asking the witnesses directly. Judges familiar with the practice agree that this process allows the judge and the parties ample time to screen the questions at the bench and rule on any objections outside the presence of the jury.⁸⁴ Allowing the practice may also provide limited insight into jurors’ thinking, which may assist lawyers in fine-tuning their trial strategy by highlighting or focusing on areas that seem important to the jury.⁸⁵

B. Loss of Witness Control

Another concern is that “witnesses, especially expert witnesses, may take advantage of the opportunity to expound, knowing that counsel may be more hesitant to object during a response to a juror’s question (as opposed to one from opposing counsel).”⁸⁶However, judicial oversight can also solve this concern. Judges must maintain control of the questions posed and the answers a witness gives so that no party is disadvantaged. Judges set the tone in their courtrooms and have a duty to intervene if it becomes apparent that the witness is going outside the scope of the question posed or is proceeding in an improper narrative fashion. Loss of witness control applies in every case irrespective of the practice and it is an issue that is dealt with when and if it occurs. Besides, counsel remain free to object, as they do in every case, to inappropriate questions or answers and may do so at the bench, if necessary.

C. Distortion of Jury’s Role as Neutral Factfinder

Jurors walk into a court of law with their own preconceptions and knowledge of the world and “are likely to construct a story to fit the evidence regardless of whether they are permitted to ask questions.”⁸⁷ Studies confirm a cognitive predisposition on behalf of jurors to embrace a “story model” line of thinking in which they are actively constructing narratives and stories in order to help makes sense of and process the evidence as it is being presented. Like other decision makers, jurors “adopt an active approach to their task. The preconceptions and existing knowledge they bring with them to the jury box help to shape the interpretations of the evidence presented at trial.”⁸⁸

Furthermore, “[e]mpirical evidence does not validate [the] fear” that jurors will become advocates if allowed to ask questions.⁸⁹ The concern that a jury’s role as neutral factfinder will be distorted “rests on the erroneous premise that one must be passive to be impartial.”⁹⁰ Jurors, like any other human being, do not check their common sense or life experiences at the courthouse door.⁹¹ In fact, they are encouraged to use their common sense during deliberations in order to properly weigh all of the evidence and extrapolate conclusions in an attempt to reach a verdict.⁹² Allowing jurors to ask questions and seek clarification of evidence assists not only with overall comprehension but with the ability to apply the law aptly and fairly to the particular facts of each case.

Any concern[] that jurors might become advocates for one party or another [is] alleviated by the . . . judge who decides whether the question should be asked, and if so, then how the question should be asked . . . The fact that the question originated with a juror is less important than the fact that the judge deems the question worthy of being asked.⁹³

D. Usurping the Prosecution’s Role

Permitting jurors to ask clarifying questions about properly admitted evidence does not allow them to request additional evidence. The prevailing philosophy is correct: lawyers in an adversarial system are in the best position to forge trial strategy and decide which evidence they will present in their respective cases. Jurors should not usurp the role of the advocates. However, jurors should be allowed to seek clarification of evidence that the parties have chosen to introduce during the trial. The evidence has already been prescreened by a judge for relevance and other evidentiary objections and it has either been admitted with or without objection from the parties. Seeking clarification by jurors of this previously screened, admitted evidence only helps ensure greater understanding. And one can only hope that greater understanding will lead to a more accurate, fair, and, by extension, true and correct verdict.

E. Asking Inappropriate Questions

Judges do not relinquish the ordinary control they exercise in the courtroom by allowing jurors to ask questions. Instead, “[b]y guiding jurors with clear instructions on the procedures that will be used and the kind of questions that are permissible, courts can both promote juror satisfaction with the trial process and encourage informed decision making.”⁹⁴Judges experienced with the practice agree that juror questions do not have a prejudicial effect to any of the parties.⁹⁵ Although most jurors are laypersons who are not familiar with the rules of evidence, studies confirm that, with the proper judicial guidance, supervision, and intervention, jurors tend to ask mostly appropriate questions.⁹⁶ It is, therefore, incumbent upon judges to set and enforce boundaries as to the types of permissible questions.⁹⁷

To the extent opponents are concerned that jurors may ask impermissible questions, judicially enforced protocols have proven to alleviate these concerns:

On the rare occasions that a juror submits an argumentative question, the judge should either rephrase the question or should not ask it . . . Jurors are always told at the beginning of the case that some of their questions may not be asked and they generally accept it philosophically when the question is not asked.⁹⁸

The mechanism for dealing with inappropriate juror questions is no different than the mechanism to deal with inappropriate questions posed by trial counsel where the court either sustains or overrules objections and instructs the jury accordingly.⁹⁹

F. Unnecessarily Cumbersome Process and Undue Delays

In practice, the entire process—from jurors writing down their questions to ruling on objections at the bench, rephrasing questions when necessary, and asking them of the witness—does not result in a cumbersome process or undue delays. I concur with my judicial colleagues who have experience with the practice that the delay concern is greatly “overblown”¹⁰⁰ and attributable to the fear of the unknown. Obviously, the practice does take some time, but the actual reported time is nominal, and the benefits are well worth both time and effort.¹⁰¹

Judges and scholars familiar with the practice agree that the procedures employed by the judge are important given jurors’ predisposition to “look to the court for guidance throughout the trial.”¹⁰² With the proper procedures and instructions as to the permissible type and scope of the questions, courts can facilitate juror participation and discourage juror inquiries that exceed the permissible bounds. The key is for judges to provide clear, simple instructions for jurors throughout the trial.¹⁰³ Judges interested in implementing the practice must be committed to active involvement and oversight.

IV. Descriptive Account of a Criminal Trial Successfully Employing the Practice

The thought of jurors asking questions first piqued my interest when I noticed a recurring pattern of jurors sending out notes during deliberations asking for clarification of evidence.¹⁰⁴ As prescribed by law and customary trial practice, these inquiries were substantively left unanswered. That is, jurors did not receive the requested clarification for the otherwise relevant and legitimate questions posed.¹⁰⁵ Instead, they were provided the standard, agreed-upon response by all parties that they (the jury) had been given all the evidence they could lawfully consider and should rely on their own independent recollection and interpretation of the evidence.

And with these brief and arguably not entirely helpful marching orders, jurors were sent back to their job of rendering a true and correct verdict according to the law and the facts (even if those facts were not entirely clear). The frustration on the faces of trial counsel, each operating under the faulty assumption they had adequately, if not masterfully, explained the evidence, was palpable as the parties and the Court were left dumbfounded by the legal and procedural roadblock at this late juncture in the case. This preventable phenomenon propelled me to think of possible solutions to jurors’ inability to ask clarifying questions as the evidence is being presented throughout the trial. Whether or not consensus exists as to the true purpose of a trial—search for the truth versus a test to see if the government can meet their burden of proof—neither side should take issue with jurors fully understanding the evidence. After all, comprehension of the evidence should go hand-in-hand with jurors making the best possible decision, whatever that decision may be.

A. Notice to Parties and Implementation

Research as to best practices and individual tailoring by each judge is a must.¹⁰⁶ Fortunately, three decades of studies and scholarship have yielded helpful roadmaps and step-by-step guidance by judges and practitioners familiar with the practice. Following a detailed review and comparison of multiple sources, I compiled my own set of preliminary, cautionary, and final jury instructions.¹⁰⁷ I also selected a complex criminal trial expected to last over a month, involving six defendants, ten lawyers, interpreters in two languages,¹⁰⁸ and a myriad of out-of-the-ordinary charges against each defendant.¹⁰⁹

The first step toward successful implementation was to provide the lawyers with an advisory giving them ample advance notice of my intention to allow the practice. The advisory described in detail how the practice would work and also included copies of the proposed jury instructions. The advisory referenced existing caselaw and rules allowing the practice. It further encouraged the parties to conduct their own research and raise specific legal objections by a certain date. A pretrial hearing was held to consider any objections, to talk through the mechanics and envisioned practical application of the practice, and to hear suggestions from the parties.¹¹⁰ Ultimately, all parties agreed that the extensive procedural protocols and active judicial oversight should remedy any hypothetical concerns.¹¹¹

The second step toward successful implementation was to instruct the jurors as to the purpose behind the practice and the appropriate parameters. The list of permissible dos and don’ts was explained to the potential jurors during the voir dire process to ensure not only understanding of the parameters but a willingness to comply if ultimately selected to serve. The parties were also allowed to conduct their own voir dire examination as to all relevant topics.¹¹²

The third step toward successful implementation involved continued education of the jurors. Once empaneled, the jurors were reminded of their role as neutral factfinders and judges of the facts. Each juror was provided with a clipboard containing the top ten list of cautionary instructions, which were repeated during the preliminary instructions and throughout the trial. The list of cautionary instructions in bullet point format was prominently displayed at the top and was followed by blank sheets of paper they could use to write down any clarifying questions. Jurors were reminded that the Court would have to vet each question at the bench after hearing legal objections from the lawyers. They were also instructed that they should not be concerned if a particular question was not asked, should not speculate as to what the answer would or could have been, and—most importantly—should not hold the failure to ask a particular question against any of the parties. Neither should they give more weight to an answer to a question simply because a juror posed it.

B. Trial Length

Indisputably, allowing jurors to ask questions was the smoothest part of the entire five-week trial, which from start to finish, took a total of 152 hours and 23 minutes.¹¹³ Law clerks punctiliously kept time of previously identified categories.¹¹⁴ The first category measured the amount of time it took for jurors to formulate questions after the witness had been fully questioned by all the parties: 18 minutes, 6 seconds. This brevity can be attributed to the fact that the jurors did not pose questions to every witness; nor did every juror ask a question. Jurors asked questions of only fourteen of the twenty-eight witnesses. They submitted a total of thirty-five questions, of which only six were not asked, and only three were asked over objection from counsel. The remaining twenty-six juror questions were asked without any objections from counsel.

The second category measured the amount of time it took the Court to ask the witness the questions: 26 minutes, 14 seconds. This was followed by the amount of time it took the parties to ask any additional follow-up questions based solely on the jurors’ questions: 12 minutes, 29 seconds.

Assessing juror questions and fielding objections at the bench predictably accounted for the longest amount of time, and even that took only 44 minutes, 21 seconds. All things considered—this was also a remarkably brief period of time given the ten highly zealous, competent advocates involved in the case and the sheer amount of time it took for everyone to simply congregate at the bench.

In sum, allowing the practice did not unnecessarily prolong the trial proceedings. It accounted for less than one percent of the total trial time (1 hour, 41 minutes out of the 152 hours, 23 minutes). The benefits of allowing the practice were also readily observable by all. Not only were jurors uncharacteristically attentive and alert during long trial days in the midst of winter,¹¹⁵ but they heeded the Court’s instructions and asked mostly relevant, clarifying questions.

If a juror submitted an irrelevant question, the Court did not ask the question of the witness and the jury was reminded of the Court’s role as gatekeeper. The jurors did not pose argumentative questions or request additional evidence. Nor did they ask a question that could tip the Government off as to a missing element.¹¹⁶ Moreover, none of the jurors’ questions revealed an intent to usurp the role of any of the parties. In fact, the opposite was true: the questions posed by jurors reflected an understanding and acceptance of their limited role and the importance of not shifting the burden or improperly commenting on the credibility of any witness, including several defendants who opted to testify on their own behalf.¹¹⁷

C. Jury Deliberations

The length of trial deliberations varies from case to case. Even the simplest one-day, one-defendant trial may result in extended, prolonged deliberations. Multiple juror notes are also quite common and may range from mundane administrative requests for notepads and writing utensils to substantive inquiries seeking clarification of evidence or legal instructions. Jurors often request additional evidence or the playback of tape recordings, videos, or other trial testimony. And at timesjurors, after deliberating for a period longer than the trial itself, will express an inability to reach a unanimous verdict.¹¹⁸

Given the number of defendants involved and the various charges, deliberations in this case were extremely brief. In total, deliberations took only 6 hours, 38 minutes. To put things in perspective, the closing arguments delivered by the parties took longer than the time spent by jurors deliberating and reaching a verdict as to each defendant on every single count. Importantly, the jury did not send any notes requesting additional evidence. Nor did they send notes seeking clarification of any evidence or requests to playback any portion of the trial testimony. The one question posed by the jury during deliberations involved clarification of a legal instruction provided by the court.

From these facts alone it would be fair to surmise that the practice gave jurors the confidence to apply the law efficiently and intelligently to the evidence pertaining to each defendant during their deliberations. The ability to ask clarifying questions eliminated any doubt as to the evidentiary value of a particular piece of evidence. It did not, however, appear to benefit either side or provide an unfair advantage. In the simplest of terms, the practice helped the jury understand the evidence, nothing more and nothing less. The post-verdict juror polls and juror interviews confirm this same conclusion.

V. Survey Data Confirms Jurors’ Positive Experience

A. Poll Results

After the verdicts were rendered by the jury and accepted by the Court, the jurors voluntarily participated in a ten-question poll regarding their overall experience with the practice. Each question was prefaced with the following statement: “As the judges of the facts in this case, did the ability to ask clarifying questions of testifying witnesses . . . ?” Ten different categories¹¹⁹ were explored with the complete results of the poll depicted in the graphs below.¹²⁰

As reflected in the graphs, every category enjoyed a positive response from the jurors, some evoking a higher consensus than others. This Article will discuss three categories with the highest consensus beginning with the third question: Did the practice clear up any confusion or misunderstandings? Every juror agreed that allowing them to ask questions during the trial helped clear up confusion or misunderstandings, with eighty-three percent expressing strong agreement with this proposition. The second category reflecting the highest overall consensus came from the first question: Did the practice enhance understanding of the issues and the evidence presented? Every juror agreed that the practice enhanced their ability to understand the issues and the evidence. These results seem consistent with the lack of questions posed by the jurors during deliberations and with the efficiency of the deliberative process given the length and complexity of the trial. Plain and simple, allowing the practice appears to have helped jurors better understand the evidence which, in turn, helped them avoid confusion or misunderstandings of the evidence.

Last, but not least in terms of importance, the second question—did the practice encourage jurors to remain more alert and focused throughout the trial?—resulted in ninety-two percent of jurors agreeing with this proposition, with seventy-five percent strongly agreeing. The benefits of an alert, attentive, and focused jury should speak for themselves. The goal of allowing the practice is not to provide one side with an advantage over the other or to try to direct a particular outcome in the trial. Yet, even the most zealous advocates in the hardest fought trials would agree that a focused attentive jury is better than a sleepy, inattentive one. Two charts summarizing the survey findings are displayed below.

B. Interviews

In addition to completing the immediate post-verdict polls, the jurors also agreed to participate in interviews which took place several months after the conclusion of the trial.¹²¹ The sole purpose of the interviews was to ascertain whether the jurors’ initial post-verdict views had changed in any way; jurors confirmed they had not. During the interviews, the jurors highlighted the overall and individual benefits of the practice, reiterating great appreciation for the opportunity to ask clarifying questions given the length and complexity of the trial¹²²: “We felt like we were part of the trial.” We had an “incentive to be more alert and attentive” throughout the proceedings. Other reported benefits to the practice included the “clarification of the attorney’s vocabulary” and greater understanding of the evidence. As one juror, who opted not to ask a single question, pointed out: “Knowing I could ask questions resulted in my note-taking being more thorough and I also felt more engaged.”

Those who refrained from asking questions did so because there was nothing they felt needed additional clarification. They expressed satisfaction with the way the parties presented and challenged the evidence. The jurors further reiterated their understanding that they should not ask for additional evidence or submit a question that could be viewed as either argumentative or expressing a personal opinion. Jurors also expressed a clear understanding of the Court’s instructions as to the appropriate parameters and the Government’s role in proving the case beyond a reasonable doubt: “We knew we had to pay close attention to the presentation of the evidence and not take over the lawyers’ roles.” Another juror pointed out that having the ability to ask questions “helped us stay awake and be on top of everything. It helped us stay focused in order to figure out what, if anything, needed to be asked after the lawyers had asked their questions.”

Jurors also confirmed their understanding of the importance of the task placed upon them and the potential impact on six people’s lives being “ultimately in their hands.” In this regard, one juror noted the ability to ask clarifying questions helped “calm nerves, manage the anxiety that comes with deciding a person’s fate.” Some of the jurors expressed their belief that the practice helped them make the right decision given their increased understanding of the evidence which was described as overwhelming. Ultimately, although the task at hand was not an easy one, jurors felt more confident they had understood the evidence and made the right decision.

As to the effect of the practice on deliberations, jurors noted it greatly facilitated deliberations amongst themselves because there was “no need to debate factual misunderstandings. Those had been resolved during the trial.” Jurors also reported greater confidence they had performed their role as jurors as ably as possible. This was especially important to them given their lack of formal legal training.

VI. Importance of Judicial Protocols To Address Perceived Impediments

Trials, by their nature, are dynamic, given the many moving parts and potentially dangerous pitfalls. This is true whether or not the practice is allowed. Something as customary and routine as the vetting of legal objections can take on a life of its own if allowed to proceed in front of a jury.¹²³ Thus, any trial procedure, to include the practice, must be properly managed by the Court in order to alleviate the primary concern—potential prejudice to any of the parties. This requires advance planning, proper implementation, and active judicial involvement and oversight.

Although I had previously considered allowing the practice early on in my judicial career, it was not until years later that I actually implemented it, and even then I was, admittedly, off to a rocky start given the lack of carefully crafted procedures and protocols. While the parties in the first two trials were given advance notice and acquiesced to the practice given their own level of intrigue, the lack of clear instructions and guidance to the jury meant that these implementations of the practice arguably lived up to the concerns expressed by the critics—namely, jurors commenting on the quality of the evidence, the posing of irrelevant, argumentative questions, and improper burden shifting by requesting additional evidence.¹²⁴ Still, the jury is not to blame for these initial shortcomings, which were directly attributable to my failure to instruct them properly. In the end though, even the shortcomings described above were cured through active judicial involvement.¹²⁵

It is worth noting that the average layperson juror does not own the copyright on asking improper questions. Even seasoned lawyers ask improper, argumentative, and at times irrelevant questions. And when this occurs, judges do what we do best—we intervene by sustaining opposing counsel’s objections and instruct the jury to disregard the question and not speculate as to the answer.

By way of important comparison, the third trial (described above) provided a marked contrast to the first two trials, proving once again that jurors can and do carefully heed the Court’s instructions. The difference in the quality and tenor of the questions was astonishing with jurors asking mostly relevant, clarifying questions in the case where they had been properly instructed by the Court not only at the beginning, but throughout the entire trial.¹²⁶ Thus, if implemented correctly, the practice will live up to the manifold praise of its supporters. The inverse also appears to be true.

Notwithstanding the primary objections to the practice, judges have discretion and legal authority to allow it. Whether or not a particular judge chooses to do so seems to be based more on the prevailing community culture than on formal legal authority or lack thereof, given the results of studies showing judges’ propensity to take cues from their peers as to best trial practices.¹²⁷

Nonetheless, there appear to be several pragmatic impediments to its expansion. First, although there is no doubt there is a proper legal foundation giving judges discretion to employ the practice, much of the existing scholarship and conversation centers around judges not committing plain error when doing so.¹²⁸ Given the inherent pressures that come with busy schedules and docket management, a plain error dialogue—in any context—is a red flag cautioning judges to steer clear and leave innovation efforts to braver souls. Second, before now there was no comprehensive, user-friendly procedural roadmap to assist with implementing the practice, which effectively meant that judges contemplating implementation had to reinvent the wheel to educate lawyers as to the practice of juror-posed questions. These judges had to draft preliminary, cautionary, and final jury instructions and procedural protocol.¹²⁹ Third, even the most ardent proponents seem to favor the use of the practice in civil trials over criminal trials without any empirical justification for the distinction.¹³⁰ Perhaps allowing the practice in civil trials represents a baby-steps approach to implementation in the hopes of winning the critics over by demonstrating that the most commonly held fears and concerns appear to be unfounded. After my exhausting review of existing scholarship, discussion with colleagues who have allowed the practice, and my own experience, I see no substantive distinctions that cannot be cured with proper judicial protocols and oversight.

To that end, I suggest a roadmap for judges who wish to implement the practice. The proper procedural steps, accompanied by suggested language, are included in the Appendix.

Conclusion

“Justice is the by-product of hard work done by the lawyers, the judge, and a jury. Not allowing jurors to ask questions of a witness diminishes us and the justice system.”¹³¹

History has demonstrated that democracy cannot rest, and that complacency is in fact the enemy of justice. As judges, we have taken an oath to administer justice and to perform faithfully and impartially all duties under the Constitution and laws of the United States. In order to do this and to do it well, we must constantly ask ourselves how we can do our jobs better.¹³² It is too easy to become comfortable with procedural practices best left in the past. As autonomous judges, we have the power to implement processes, procedures, and innovations that not only enhance individual experiences, but keep up with the times in order to ensure we our fulfilling our oath to uphold the Constitution.

More than three decades of studies now confirm the practice of allowing jurors to ask clarifying questions is efficient, effective, and highly favored by those familiar with it, including the final decision makers—the jurors who report greater job satisfaction and overall confidence in verdicts rendered.¹³³ These facts alone should nudge a slow-moving judiciary, mostly content with the status quo and inherited practices, in the direction of introspection and change.¹³⁴ Call it reciprocal professional courtesy¹³⁵ or just plain common sense; the fact is that people’s lives are hanging in the balance, and it is time to reevaluate the benefits of allowing the practice not only in civil trials, but in criminal trials as well. As Judge Eugene A. Lucci states: “The idea that justice is somehow served by a confused jury that is not allowed to express its confusion and seek clarity of understanding is flat wrong.”¹³⁶ It undermines confidence in our system of justice, results in a “miscarriage of justice,” and promotes cynicism.¹³⁷

Research confirms that experience with the practice results in greater enthusiasm by all who use it and confidence in our system of justice: “There can be little doubt at this time, with all three trial participant groups having spoken, repeatedly, that juror questioning is an innovation whose time has fully arrived.”¹³⁸

Appendix

A. Notice to the Parties

ADVISORY

“Trials exist to develop truth.” United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir. 1979). To that end, the Court is empowered to exercise reasonable control over the mode and order of examining witnesses and presenting evidence. See Fed. R. Evid. 611(a). Thus, where the positive value of allowing jurors to ask clarifying questions is sufficiently high and procedural safeguards are in place to guard against possible abuses of the practice, it is within the discretion of the trial judge to permit jurors to write down clarifying questions that the Court may pose to witnesses on the stand.¹³⁹

The Court anticipates that the issues presented by this case will be sufficiently complex that the search for truth and justice will be promoted by allowing jurors to ask clarifying questions at the conclusion of each witness’s testimony. To safeguard against potential abuse, the Court will issue preliminary cautionary instructions¹⁴⁰ regarding the procedure and proper ends of juror questioning; it will reiterate those instructions on question sheets that will be provided to the jurors.¹⁴¹ The Court will also remind jurors of the acceptable parameters of questioning prior to the first witness taking the stand. Any questions submitted will be reviewed at the bench and subject to evidentiary objections by the Parties. If the Court determines that a question is appropriate, it will issue the question to the witness once both sides have had an opportunity to conclude their own questioning.

With these procedures in place, the Court is confident that the jurors in this case will be empowered to more effectively fulfill their vital role as judges of the facts.

SIGNED __________________.

B. Preliminary Instructions

Preliminary Instructions on Juror Questions

You will be allowed to pose written questions to witnesses but are not required to do so. When a witness has been examined and cross-examined by counsel, and after I ask any clarifying questions of the witness, I will ask whether any juror has any further clarifying question for the witness. You may propose questions in order to clarify the testimony, but you are not to express any opinion about the testimony or argue with a witness. If you propose any questions, remember that your role is that of a neutral fact finder, not an advocate. It is of paramount importance for you to always remember that in criminal cases Defendants are presumed innocent; the burden of proof is on the Government from beginning to end.

If you have a question, write it on the sheet of paper provided and hand it to my staff. Do not identify yourself on any of the question sheets or discuss your question with any other juror. I will review your question with counsel at the bench and determine whether the question is appropriate under the Federal Rules of Evidence. If so, I will ask your question, though I might put it in my own words. If the question is not permitted by the Rules of Evidence, or if it is expected to be answered later in the case, it will not be asked, and you should not draw any conclusions or speculate about the fact that your question was not asked. If the Court determines that your question will not be asked, do not hold that decision against the Parties.

If I do ask your question, you should not give the answer to it any greater weight than you would give to any other testimony. Remember to keep an open mind until you have heard all the evidence, the closing arguments, and my final instructions on the law.

C. Cautionary Instructions

D. Sample Blank Note

(Insert Style of Case)

Witness #______

Question:

E. Final Instructions

Modify preliminary instructions.

Category: Print Issues

Jack of All Trades, Masters of None: Giving Jurors the Tools They Need to Reach the Right Verdict

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