Jury Subcommittee
(of the N.J. Supreme Courts Civil Practice Committee)

Juror Questions - Pilot Program Reports

• Juror Questions -- Follow-up Report on Trial Procedures (2006)
• Juror Questions -- Pilot Program Report (2001)
• Background
• Pilot Project Features
• Rationale
• Summary of Results
• Key Pilot Project Procedures
• Quantitative Responses To The Pilot Project
1. Judges' Responses
2. Attorneys' Responses
3. Jurors' Responses

Report Attachments:	PDF Files:
Jury Pilot Project	Trial Judge Questionnaire
Preliminary Instructions	Attorney Questionnaire
Final Instructions	Juror Questionnaire
	Court Clerk's Report

Background

In 1998, the New Jersey Supreme Court approved development of a pilot project that allowed jurors to submit questions for witnesses in civil trials. The pilot was conducted from January 2000 through June 2000, authorizing eleven judges to allow jurors in civil trials to propose questions for witnesses. Results of the pilot were largely positive and the New Jersey Judiciary will be studying QA procedures more deeply by surveying civil judges and attorneys following trials involving juror questions, from September 2003 through February 2004.

What follows below is the final report on the outcome of the project. (click here for a printer friendly version of the report). Questions on the pilot should be directed to michael.garrahan@judiciary.state.nj.us

Pilot Project Features

The Supreme Court authorized the juror question-asking pilot project for civil trials during the period January through June 2000. Eleven trial judges in eleven different vicinages participated in the pilot project:

Rationale:

The theory behind this innovation in trial procedure is that jurors who are permitted to ask the questions that are on their minds will have a greater appreciation for the importance of their role, take their responsibility more seriously, and be more attentive, thus ensuring a more reasoned deliberative process and a more just outcome. It is also theorized that jury service will be a more satisfying experience, with resulting benefits to public confidence in the judicial system.

No study of actual trials can measure the results against the theory in any scientifically reliable way. However, the questionnaires completed by the jurors, judges, and attorneys gave us significant information - including the fact that out of 127 trials conducted by 11 judges in as many counties, no one suggested that the process had an unfair effect on the outcome of the trial.

It is our perception that there need be no tension between the goal of a trial as a search for truth and justice, and the method of the adversarial process. Based on the experience gained in the pilot project, we recommend to the Civil Practice Committee, for its recommendation to the Supreme Court, the adoption of a rule permitting each judge presiding over a civil trial, in his or her discretion, to employ the jury question procedures essentially as set forth in the pilot. It has been reported that in approximately half the states, either by rule or informal practice, juror questions are permitted, and in many of those states the practice is not limited to civil trials. See Commonwealth v. Britto, 2001 WL 303736 at *9 n.6, 433 Mass. 596 (Sup. Jud. Ct. 2001)(affirming a felony murder conviction and rejecting the defendant's argument that by allowing jurors to submit questions for the witnesses, the judge deprived defendant of a fair trial.) That Court held that allowing juror questioning "rests in the sound discretion of the trial judge." Id. at *9-*11.

Summary of Results

Even before the end of the six-month pilot, it was apparent that jurors and judges were reacting very favorably, whereas attorney reaction was mixed. After the conclusion of the pilot and a review of the written responses to our questionnaires, those early reactions were confirmed. The jurors virtually all loved it. The judges, some of whom initially were skeptical, were very pleased with how well the process worked. Many wanted to continue the procedure after the end of the pilot period. The attorneys' responses were measured, although a majority favored the procedure. More defense attorneys expressed negative views than plaintiffs' attorneys, the primary concerns being interference with trial strategy and control of witnesses. Most of those who expressed such concerns appeared to refer not to the trials just concluded, but to potential problems in future cases.

Key Pilot Project Procedures

The Sub-committee designed the pilot with attention to State v. Jumpp, 261 N.J. Super. 514, certif. denied, 134 N.J. 474 (1993) (noting that other jurisdictions "...generally approved this practice and found that the trial court has discretion to authorize it." Id. at 529.) In Jumpp, the Appellate Division directed trial courts to refrain from allowing jurors to ask questions until the Supreme Court thoroughly considered the issue and established "precise guidelines and procedures." Id. at 534.

In developing the pilot project, the committee examined the procedures used in other jurisdictions, particularly Arizona and Massachusetts , spoke with judges in those jurisdictions, and drew heavily upon the recommendations set forth in two publications: that of the ABA Section on Litigation, Civil Trial Practice Standards (February 1998), and Jury Trial Innovations - a joint effort of the ABA, State Justice Institute, and the National Center for State Courts (compiled by G. Thomas Munsterman, et al.).

The key features of the pilot were: (1) the trial judge would determine at the start of each trial whether jurors would be permitted to ask questions in that trial; (2) in making that decision, the judge would consider counsels' views but consent of counsel was not a condition for permitting questions; (3) the judge would explain to the jurors at the outset that they would be permitted to ask questions to clarify a witness's testimony, not to argue with a witness, and that rules of evidence might make it improper to ask some of their questions; (4) jurors would write out their questions with materials provided by the court and submit those questions to the judge at the conclusion of the testimony of each witness; (5) all juror questions would be reviewed by the judge and counsel on the record but out of the jurors' hearing; (6) the trial judge would consider whether to allow the proposed questions under the same rules of evidence applicable to the attorneys' questions and subject to the same objections; (7) the judge would ask the witness those questions that were deemed admissible; (8) if juror questions were asked of the witness, the attorneys would have an opportunity for follow-up questions of that witness.

Quantitative Responses to the Pilot Project

Separate questionnaires were developed for completion by the trial judge, the attorneys, and the jurors at the end of each trial. Copies of those questionnaires are attached to this Report.

Each questionnaire provided for entry of the type of case, the name of the judge, the length of the trial, an assessment of various aspects of the procedure, an overall opinion as to whether juror questions should be permitted in every civil trial, and a space for open-ended comments. We did not perceive any pattern in the responses related to the type of case, perhaps due to the size of the sample.

We received completed questionnaires from the participants in 127 civil trials over the six month duration of the pilot project. Jurors proposed questions in 121 or 95% of those 127 trials; no juror questions were proposed in 6 trials. A total of 2,540 questions were posed by jurors in 121 trials, or a mean of 21 questions per trial. However, there were 7 trials that produced more than 50 questions from jurors , and those extremes significantly affected the mean. However, the median number of questions proposed per trial was nine. Those seven trials that produced an unusually large number of questions were only 6% of the 127 pilot project trials. A similar number (six, or 5% of the total pilot trials) produced no juror questions.

More than three-quarters of the questions that were proposed (77%) were allowed by the trial judge and asked of a witness. The judges allowed 1,957 questions to be asked of witnesses, or a mean of 15 questions per trial, with the median being 7 per trial. In 2 trials, none of the few questions submitted were allowed. Thus in a total of 8 trials, no juror questions were submitted to witnesses.

The questionnaires asked the judges and attorneys to estimate how much time was added to the trial because of the procedure. The judges responded to that question for 107 of the 127 trials, and the estimated median time added to the trial was 30 minutes. However, several trials yielded more extreme responses, which would skew the mean.

The questionnaires reveal that the median number of attorney follow-up questions per trial was two, and there was at least one follow-up question in 78% of the trials in which juror questions were asked.

From the figures cited, it appears that if juror questions were permitted in all civil trials, a composite picture of a typical civil trial (based on median responses to the questionnaires) would look like this:

Interestingly, these results were very similar to those reported in the Massachusetts pilot.

Qualitative Responses to the Pilot Project

The key question posed to the trial judges and attorneys was whether question-asking should be permitted in all civil trials.

Judges

Several judges withheld a response after the first few trials, and one judge answered in the negative early on. However, by the end of the pilot, all eleven judges recommended that judges have discretion to allow juror questions in any civil trial.

These are representative comments from six different judges at the conclusion of the pilot:

1. I would urge that the practice of permitting juror questions as per the pilot program be made permanent by rule change. I found it to be basically non-disruptive, added little trial time and the positives far outweighed the negatives in terms of juror empowerment, clarification of testimony, etc.
   
2. After being involved with the program for 3 months or so, I started telling the jury panels about the program as part of my preliminary remarks . . . and I noticed in every instance a positive reaction. I think there are a number of people who have a negative feeling about jury service even though the system has improved dramatically over the years, and I feel that this pilot program definitely makes the jurors feel more involved. I think that anything which raises the average interest level in our justice system is a good thing.
   
3. The jury loved asking questions. The trial held their attention because of their ability to ask questions. The jury asked some very informed and revealing questions. However, many of the questions were directed to the wrong witness (e.g., asking a fact witness an expert opinion question).
   
4. I think jury questioning is a terrific idea. In my experience, jury questioning keeps the jury more alert and interested in the case. The questions in many instances are insightful and give attorneys a glimpse of the jury's thinking on the case. I saw no difficulties develop with the program.
   
5. I think we have to carefully assess who is posing the questions. The more articulate, intelligent juror seems to be the one asking the questions and although the less articulate jurors decide not to ask questions, it seemed to me on occasion they were "backing off" and permitting the question askers to "take over." This may be the natural progression during jury deliberation and may just be the personality of the [jurors], who seem to be the ones who are not afraid to speak out, be more outgoing and less concerned with criticism.
   

   One judge gave a particularly comprehensive response:

6. When initially asked to consider participating in the project, I was anticipating that the process would be precisely the sort of disaster that many members of the bar believed it would be. The very idea of letting jurors participate in questioning of the witnesses was one which I was quite confident would be fraught with danger. I thought that the trials would inevitably become bogged down in review of questions which were irrelevant at best and which in the end could not be asked . . . . I thought that permitting the jury to dream up questions would improperly alter their focus and lead to chaos. I was not only incorrect about all of those matters, but now that the project has concluded, I find myself yearning for it to be approved for use in the near future. Far from creating the sort of crisis that I anticipated, . . . the jurors were uniformly more focused on the evidence. [T]he questions that they wanted to be asked were by and large relevant and in many cases significant. Indeed, one of the experts who testified told me on the record after the jury had left for the day that he welcomed the questions from the jurors and considered them to be a helpful guide to whether or not they had understood his testimony. No change of course, is completely without controversy, and I suspect that many attorneys will have the same fears and misgivings that I had. But I also suspect that if the program becomes an option, those of us who have experienced it first hand will find that our views of its benefits are soon enough shared by many others. I have been thoroughly convinced of the value of the program and hope that it is approved for future trials.

Attorneys

The final question to both judges and attorneys was:

Do you recommend that jurors be allowed to submit questions to witnesses in all civil trials?   Yes / No

Of the 272 attorneys who were involved in the pilot, 161 or 59% answered "Yes," 99 or 36% answered "No," and 12 or 4% did not answer the question. Fifty percent of the 139 attorneys who identified themselves as defense counsel (69 attorneys) and 69% of the 133 attorneys who identified themselves as plaintiff's counsel (92 attorneys) answered "Yes," recommending the option in all civil trials.

The most common concerns expressed by attorneys were interference with trial strategy and loss of control over witnesses. Another expressed concern was that the judge's control of the process was critical, and that perhaps not all judges would handle the procedure as well as the pilot judge. Virtually all of the attorneys recognized increased juror attention and satisfaction as a result of the procedure. One concern recognized by both judges and attorneys is whether to allow questions of an expert witness who testifies "live" if the opposing expert's testimony is presented by videotape

1. I believe that jurors should be permitted to take notes and ask questions in all trials. It promotes their attentiveness and makes them feel a part of the process. I have always feared jurors' speculation on what they feel they do not know affecting their decision-making. Interviews of jurors by the court or counsel in other cases in federal or other states' courts have shown this fear to be reasonable.
   
2. This was an extremely positive event. I was happy to be part of the experience. Judge _______ has an extremely good disposition to work with the jurors and attorneys to warrant admiration. Under his control, the focus of the jury was greater than any other I've seen.
   
3. The positives of the program are obvious: juror participation and a strong indication as to how jurors feel about a witness's testimony.
   
4. Jurors submitting questions is a good idea as long as the safeguards remain in place to scrutinize and review the proposed questions before the question is posed to the witness. The questions gave me an indication as to what the jury considered significant.
   
5. The questioning did give some insight into what the juror's perceptions were which was beneficial in structuring of the argument.
   
6. I think that throughout a trial, settlement may be more forthcoming based on attorneys' hearing juror questions.

1. The jury should remain neutral throughout the trial, rather than making the witness feel they are being questioned by the fact finder.
   
2. The follow-up permits re-covering testimony already covered and opens the door to introducing testimony on new subjects not previously covered, which can give an advantage to the attorney fortunate enough to have been served up with a question on an issue on which he needs to add testimony.
   
3. The adversary process presumes the ability of counsel to pose appropriate questions to witnesses at the appropriate time. The process has worked to produce fair and impartial results over the course of time. Injecting another layer of questioning has the potential negative effects of: 1) overemphasizing certain aspects of a witness's testimony; 2) injecting information that one or both counsel have avoided for tactical reasons; 3) risking testimony from a witness which goes beyond the specific question posed; and 4) extending the trial time with no measurable benefit in terms of just resolution of matters.
   
4. Part of the lawyering process is to know what questions to ask or not. When a juror asks a question that was specifically not asked by a lawyer it doesn't seem right to allow the lawyering strategy to dissolve.
   
5. The jury may have a question for one witness which may be much better answered by a later witness, and which the attorneys may have chosen not to pose to this particular witness. The manner in which the case unfolds is best left to the attorneys who know much more about the case.

Jurors

Juror responses to that same question showed overwhelming approval. Jurors welcomed the opportunity to question witnesses, irrespective of whether the individual juror actually submitted a question. Several jurors who wrote out comments stated that knowing they could ask questions made them more attentive, especially when the judge allowed them to take notes. Several reported that they were assisted by the witnesses' answers to a juror's question, and several indicated that having had the opportunity to get answers to their questions actually shortened the deliberation time. That was a potential benefit we did not foresee, and did not ask about on the questionnaires. Finally, most jurors who had served on a jury before found this experience more satisfying.

Respectfully submitted,

The Jury Sub-committee of the Civil Practice Committee