When you go to trial, your goal is to persuade the jurors to vote in your client’s favor, right? To accomplish that goal, it’s essential that you find out what they’re thinking. Wouldn’t you like to find out the answers to these questions?
* Do they believe your witnesses?
* Do they believe your opponent’s witnesses?
* Do they have doubts about your theory of the case?
* Do any of the witnesses have credibility issues?
* Do they understand technical issues you’ve raised?
* Are they following the presentation of evidence?
* Are they unclear about any testimony?
* Are they misunderstanding any terms your witness used?
* Are they confused?
If you could learn the answers to those questions, you could tailor your cross-examinations, alter your direct examinations, or change your presentation of evidence to ensure that the jurors listened to you and your witnesses. But unless you’ve got Professor Xavier (the telepath from the X-Men) on your team, is there any way to discover what your jurors are thinking?
Actually, there is. One of the easiest ways to learn what your jurors are thinking is by letting them ask questions during trial. By listening to the questions they pose, you can quickly decide whether you need to clarify a witness’s testimony, whether you pursue a line of questioning, or whether you should back away from an impeachment topic. By letting jurors ask questions, not only will you gain insight into what they’re thinking, but you’ll also gain a few additional benefits:
Benefit #1 – Clarity. Asking questions allows the jurors to clarify information. You don’t want the jurors to get hung up on simple issues. Let them ask questions to clarify simple issues (”What does ‘ancilliary’ mean?” “How many officers were called to the scene of the crash?” “What was the effective date of the early termination clause referred to in the contract?”) and they’ll be able to focus on the more important issues and themes in your case.
Benefit #2 – Better Listeners. When jurors are allowed to ask questions, they’re forced to listen more intently so they can form their own follow-up questions. Better listening leads to better retention and better comprehension, which is essential to a meaningful deliberation process.
Benefit #3 – More Involved Jurors. Finally, jurors who are allowed to ask questions feel like they’re more involved in the process. By having more of an ownership interest in the trial, it’s easier for them to remain interested and focused throughout a lengthy trial.
With all of these benefits, you’d think that juror questioning would be an integral part of jury trials, right? Unfortunately, questioning by jurors is still relatively rare. Here are the four primary objections that many lawyers (and judges) have against juror questioning:
Objection #1 – Prejudice. As a trial lawyer, you know that it’s impossible to “unring the bell” or “put the toothpaste back in the tube” after an improperly prejudicial issue has been raised. That’s why many lawyers don’t want to give jurors the opportunity to ask about impermissible topics (”Doctor, didn’t you have an insurance policy to cover this loss?” “Officer, has the defendant ever been charged with other crimes?”)
Objection #2 – Argumentative Questions. Trial lawyers are prohibited from asking argumentative questions
(”Why don’t you stop feeding us a line of bull and tell us why you really decided to run from the cops?”), but what do you do when a juror asks a question prohibited by the rules of evidence?
Fortunately, with a good questioning process, these first two objections can be eliminated. However, there are two additional reasons why lawyers object to juror questioning:
Objection #3 – Meeting the Burden of Proof. How upset would you be if your opponent failed to ask about an essential element of your case, but then Juror #5 asked a question that proved the essential element and killed your chance for a directed verdict? Hopefully, this scenario will be relatively rare, since you probably won’t encounter many lawyers who are that stupid.
Objection #4 – Premature Deliberation. The final objection lawyers have to juror questioning is that they’ll begin deliberating before they’ve heard all the evidence in the case. However, this isn’t really a valid objection to juror questioning, because the jurors will ask the questions to themselves. regardless of whether or not they’re allowed to ask the questions aloud.
If you’re going to allow your jurors to ask questions, here’s a simple procedure to minimize the risk of improper or objectionable questions:
Step 1 – Put it in writing. You don’t want the jurors shouting out improper questions during the middle of direct examination, so have the judge tell the jurors to write their questions down on a piece of paper. Here’s how Florida judges instruct jurors about questioning during criminal cases:
“After the attorneys have completed their questioning of the witness, I will give sufficient time for the juror to write the question on the paper which you have been provided, fold it and give it to the bailiff, who will pass it to me. Please do not show your question to anyone or discuss it with anyone.”
Step 2 – Review the Questions. Once the questions have been submitted to the judge, they need to be analyzed to determine whether or not the question may be properly asked. The judge should call the attorneys to the bench to give them the opportunity to object to any improper questions. The jurors should be told that their questions will not be asked unless they are legally permissible. Once again, here’s how Florida judges instruct jurors on this issue:
I will then review the question with the attorneys. Under our law, only certain evidence may be considered by a jury in determining a verdict. You are bound by the same rules of evidence and procedure that control the attorneys’ questions. If I decide that a question may not be asked under our rules of evidence or procedure, I will tell you. Otherwise, I will direct the question to the witness.
Step 3 – Ask the Question. After the judge determines that a question is proper, the question is posed to the witness.
Step 4 – Follow up. Finally, both attorneys are given an opportunity to ask follow-up questions, to clarify issues raises by the jurors questions.
In your next trial, your jurors will have questions. They’ll either ask their questions during trial, or they’ll ask their questions and make up answers during deliberations. It’s better to know what’s on their minds before they deliberate, so encourage the judge to let them ask questions during trial. You’ll be glad you did!
