Jury Subcommittee Report on Pilot Project Allowing Juror Questions
At the end of the last term, the Civil Practice Committee recommended in its
Supplemental Report to the Supreme Court (March 13, 1998), that the Court undertake
a pilot project that would permit jurors to propose questions for witnesses
to answer during trial. The Committee was advised that the Court would consider
such a pilot, and this Subcommittee was charged with its design. This is the
This proposal is based upon the perceived advantages of (1) increasing jurors' understanding of the evidence; (2) alerting the trial judge and the attorneys when a significant piece of evidence or testimony has been either omitted or misunderstood; (3) engaging jurors in the trial proceedings, thereby increasing juror satisfaction and attentiveness; and (4) increasing the likelihood that justice will be served by the jury verdict.
We have been guided in large part by the recommendations of the American Bar Association's Section of Litigation, set forth in its February 1998 publication, Civil Trial Practice Standards. The Standards were "developed as guidelines to assist judges and lawyers who try civil cases in state and federal court." Id. at iv. The Standards are predicated on the recognition that, in an era of increasingly complicated evidence and litigation, there are methods for enhancing jury comprehension and minimizing jury confusion that merit wider consideration and use. These Standards are designed to furnish practical guidance for the implementation and use of many of these methods.
The Standards suggest a variety of approaches but recognize that ultimately the trial court must exercise its discretion in light of the circumstances before it, and nothing in these Standards limits that discretion. The Standards are drafted on the assumption that each litigant before the court is represented by counsel. The court's exercise of discretion will necessarily be affected if parties are appearing pro se. [Id.]
Our pilot is informed as well by the manual produced jointly by the ABA, the National Center for State Courts (NCSC), and the State Justice Institute, Jury Trial Innovations (Munsterman, et al., editors, 1997), which was also a significant source for the Standards.
Finally, we have been encouraged by the experience of other states, Arizona in particular, where many of the innovations discussed in the Standards and in the manual have been in regular use for a number of years. Judges Michael Dann, Michael Brown, and Barry Schneider of the Arizona Superior Court have shared with Judge Wecker their experience with the discretionary use of juror-submitted questions. We have also learned of a pilot presently being conducted in the Massachusetts Superior Court, which includes juror questions among a number of trial innovations proposed by the Standards. The Massachusetts pilot, now underway for several months, is sponsored in cooperation with a private non-profit foundation. Massachusetts is finalizing its own edition of the Standards, incorporating portions of the manual as well.
Our proposed pilot is to be conducted as follows:
- We will identify from representative vicinages ten to twelve judges who are assigned to civil jury trials for the 1999-2000 court term, and who express an interest in participating. We anticipate that several will be among those whose courtrooms are equipped with video-recording equipment.
- The pilot will run for six months, from January through June 2000, with an informal evaluation and the opportunity for practice revisions midway through, probably in early April.
- A one-day training session will be held in November, 1999, with the above-cited materials to be supplied to participating judges.
- Each judge participating in the project will explain the project, its purpose and mechanics, to the trial attorneys before the start of trial, giving the attorneys the opportunity to express their concerns and questions, and any objection to including the trial in the pilot. However, attorney consent shall not be required. While the judge will retain discretion not to allow juror questions if the judge determines it would not be appropriate under all the circumstances, participating judges are encouraged to allow questions in each trial for the duration of the pilot project. Use of the technique is not limited to lengthy or complex trials.
In trials in which juror questions are permitted, each juror will be supplied with paper and pen (which may already have been done to allow note taking) before the first witness is called. The judge will instruct the jurors that when the attorneys have finished their direct and cross examinations of each witness, each juror will have time to write out, on a separate sheet of paper, any question he or she would like that witness to answer before being excused. There will be no collaboration between jurors, and the unsigned questions, if any, will be collected by a court officer and given to the judge. The jurors and the witness will be excused or the judge and attorneys will go to sidebar while the judge places the questions on the record, one at a time, giving the attorneys the opportunity to object or to propose a modification to each question submitted.
(1) The judge will ultimately determine whether each question shall be asked, and in what form. The witness and the jury will then be reassembled if they have been excused, and the judge will ask the witness those questions the judge ruled to be proper. Each attorney will be permitted to ask the witness follow-up questions prompted by the witness's answers to jurors' questions.
(1) This design incorporates the procedural safeguards recommended by the Appellate Division in State v. Jumpp, 261 N.J. Super. 514, 531-33 (App. Div. 1993), certif. denied, 134 N.J. 474 (1993), affirming a murder conviction and rejecting defendant's contention that allowing a question from a juror unfairly prejudiced his defense. Nevertheless, the court recommended that trial courts withhold the practice until the Supreme Court establishes "precise guidelines and procedures." Id. at 534.
In this trial, after the lawyers have asked their own questions of each witness,
I will give you an opportunity to write out any additional questions you may
have for that witness. Any question you submit should be to clear up confusing
testimony, to clarify the testimony the witness has given or to supply significant
missing information. Your questions should not state an opinion, make critical
or favorable comment, or express any view about the case. You may not argue
with the witness through a question.
The Court Officer will collect your written questions and give them to me. I will then excuse the jury and the witness, while I discuss your questions with the lawyers. If I decide that any additional questions are proper, I will call the witness back to answer those questions in your presence.
Keep in mind that the rules of evidence or other rules of court may prevent me from allowing some questions. I will apply the same rules to your questions that I apply to the questions asked by lawyers. Some questions may be modified or rephrased. Some may be asked just as you have written them, and others may not be asked at all. If a question that you submitted is not asked, you should not take it personally, nor should you attach any significance to my decision not to allow the question. I caution you not to treat jurors' questions or the answers to those questions differently than you would treat any other testimony. You are to carefully consider all of the testimony and other evidence in this case before deciding how much weight to give particular testimony.
Remember that you are neutral fact finders and not advocates for either party. You must keep an open mind until all of the evidence has been presented, the lawyers have concluded their summations, and you have received my instructions on the law. Then, in the privacy of the jury room, you will exchange views with your fellow jurors.
Any question you submit should be yours alone and not the product of discussion with any other juror. That is in keeping with my overall instruction that you must not discuss the case among yourselves until you have heard my final instructions on the law, and I have instructed you to begin your deliberations.
In this trial, I allowed you to submit certain questions that you wanted the witnesses to answer. Some were in fact asked and answered, and others were not asked. Keep in mind that the rules of evidence or other rules of court may have prevented me from allowing some questions. I have applied the same rules to your questions that I applied to the questions asked by the lawyers. Some questions may have been modified or rephrased. Some may have been asked just as you have written them, and others may not have been asked at all. If a question that you submitted was not asked, you should not take it personally, nor should you attach any significance to my decision not to allow the question. I caution you not to treat jurors' questions, or the answers to those questions, differently than you would treat any other testimony. You are to carefully consider all of the testimony and other evidence in this case before deciding how much weight to give particular testimony.