Questioning of Witnesses by Jurors: Can It Work?
By Stephen R. Bough
Whether jurors should be allowed to ask questions of witnesses is a much debated topic in Missouri even though it is allowed in both federal and state courts. In federal court, Eighth Circuit Model Jury Instruction 1.04A allows jurors to ask questions of witnesses. In state court, the trial court has discretion to permit or deny jurors permission to ask questions during trial. Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 867 (Mo.banc 1993); Schaefer v. St. Louis & S. Ry. Co., 128 Mo. 64, 30 WS.W. 331, 333 (1985).
Determining a procedure to use for jurors to ask questions of witnesses is what makes juror questioning so difficult to implement. The Missouri Supreme Court grappled with this issue recently in City of Springfield v. Thompson Sales Company, 71 S.W.3d 597 (Mo. Banc 2002). In Thompson Sales, the trial court modified MAI 2.01 to instruct the jurors that they would be allowed to ask questions of witnesses using a procedure where each juror would write something, even if they didn’t have a question, on a piece of paper after each witness and hand it to the bailiff so onlookers would not know which juror submitted the questions. Id. at 598. The Supreme Court reaffirmed prior case law holding that trial judges have the discretion to permit juror questioning but remanded the case with an admonition to the judge and the parties to “determine in advance an appropriate alternative procedure that will be agreeable to those concerned and that will avoid pitfalls alleged to be associated with the procedure utilized.” Id.
The Missouri Court of Appeals for the Southern District also explored this issue recently in Hancock v. Shook, et al., 2002 WL 774089. The Court held that it was an abuse of discretion for the judge to allow a juror to submit a question to be posed to an expert witness but then not to submit two subsequent follow-up questions. Id.
How are local judges and trial attorneys handling juror questioning of witnesses? The Honorable Kelly Moorhouse of the 16th Judicial Circuit of Missouri does not allow jurors to ask questions as a regular practice in her courtroom because “no one knows what will come up, and it can be difficult to explain to a juror who has posed an objectionable question why the question cannot be answered.” Judge Moorhouse has never entertained a request from attorneys to allow the jurors to ask questions, but if she had such a request and decided to allow it, she would have a conference with the attorneys to determine a detailed procedure to follow.
Local trial attorney Sly James of The Sly James Firm has tried several cases where the judge allowed juror questioning as the regular procedure of the Court. In these Courts, the juror wrote out the question, the attorneys then approached the bench to hear the question and there was a joint decision about whether the question would be asked. If the question was asked, each attorney was granted a limited right to follow-up. Sly says that juror questioning using this procedure is very useful because the “system is about the jury reaching a decision on the facts. If a juror has a burning question about a factual issue, they should be allowed to ask it so they can make a better decision.”
To make juror questioning work as smoothly as possible, work out a procedure with the Judge and opposing counsel about how the questions from the jury will be handled. Determine when the jurors will be allowed to ask questions and what the procedure for doing so will be before the trial begins. Insist that the questions be set forth in writing. Decide who will read the question. The inquiry should be made by the judge or counsel rather than directly from the juror to the witness. If the question is improper, the jury can be told that the rules of evidence will not permit the question.
Don’t hesitate to object if the juror’s question requires an objection. Be sure to request permission to ask follow-up questions if the witnesses’ response to a juror’s question requires it.
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