Cover Story

Should jurors be allowed to ask questions during trials?

It's a hot topic that has social scientists, attorneys and judges buzzing. Proponents, such as Shari Seidman Diamond, PhD, JD, say that allowing jurors to submit questions helps them understand unclear and conflicting trial evidence. Juries have generally been silenced throughout trials, and "the fiction is that they are passively absorbing like a sponge and you squeeze them out at the end and get the verdict," says Diamond, a professor of law and psychology at Northwestern University Law School and a senior research fellow at the American Bar Foundation. "Of course we know as psychologists...that even if they are silent, they are actively processing."

Historically, there is case law dating to the 1880s on juror questions. But as a general rule, whether to allow questions is left to the discretion of the trial court, says Paula Hannaford-Agor, director of The Center for Jury Studies. A 2006 survey by the center estimates that judges allowed questions in 15 percent of state and 11 percent of federal trials, however "the actual rate of juror questions is heavily influenced by the local litigation culture," says Hannaford-Agor.

The Arizona Filming Project

Allowing jurors to ask questions helps them clarify misunderstandings, correct sources of confusion, and improve their comprehension and recall, says Diamond. In earlier research, judges also reported that jurors appear more attentive and involved in the trial when allowed to ask questions.

To gain more insight, Diamond and colleagues examined 829 questions that jurors submitted during 50 civil trials-half of them automobile injury cases-included in the Arizona Filming Project. The project was an outgrowth of a controversial Arizona rule, introduced in 1995, allowing jurors to discuss cases among themselves before formal deliberations. Researchers, including Diamond, recognized a unique opportunity to gather and analyze real trial data. After finalizing complicated security and permission agreements with the Arizona Supreme Court, in 1998 they conducted an experiment that included videotaping real trial testimony and jury deliberations in the Pima County Superior Court in Tucson. Arizona is one of three states, including Colorado and Indiana, that mandate permitting juror questions in criminal trials and one of four states to mandate permitting questions in civil trials.

When jurors are permitted to submit questions, they don't directly speak to witnesses. Rather, they write down their questions and give them to the judges, who confer with attorneys for both sides before questioning the witness on the jurors' behalf. In their analysis, Diamond and colleagues coded juror questions into categories such as whether they were addressed to experts or other witnesses, whether they were law related, and whether they focused on background factual material or demonstrated jurors' efforts to evaluate witness claims.

Some worry that juror questions will encourage jurors to become advocates for a particular side instead of impartial arbitrators. However, Diamond's findings, published in the Vanderbilt Law Review (Vol. 59, No. 6, pages 1,926-1,971), found no such effects.

Instead, answers to juror questions supplement and deepen their understanding of the evidence, she says. Further, in almost half the questions, jurors were "cross-checking," says Diamond, a process by which they used comparison to evaluate the credibility of witnesses and the plausibility of accounts offered during trial.

Potential drawbacks

Diamond's study appears to be part of a growing interest in allowing juror questions during trial. In fact, in 2005 the American Bar Association (ABA) endorsed the practice in their revised Principles for Juries and Jury Trials.

However, not everyone agrees this is a positive trend. Attorney Richard S. Walinski, JD, opposed the ABA's new principle in a 2006 article published in the ABA journal Litigation (Vol. 32, No. 3, pages 5-7). He claims that allowing jurors to ask questions disrupts the adversarial nature of modern American trials, in which the responsibility for collecting, interpreting and presenting evidence lies solely with the parties involvedin the dispute.

Trials are not, as most proponents describe it, a search for truth, says Walinski.

"It's not a search at all. A trial is the culmination of a dispute [between two parties that] can't agree on what the relevant facts are."

The law has never conceived it to be the role of a judge or a jury to intervene in the presentation of proof either to assist or to impede the party who has the burden of proving material facts, says Walinski.

Thus, it's not the jurors' problem if they are confused, he adds.

"If [the jury's] confused, it is to rule against the party on whom the burden of proof rests."