My simple (minded) answer to a simple question

Yesterday, I asked if jurors in criminal or civil cases should be allowed to question witnesses. That post generated a good discussion. I will tell you what I do and why I do it in a moment. I’ll give you some initial observations before I explain my practice.

First, my esteemed colleague from Nebraska, Judge Warren Urbom, widely regarded as one of the best trial judges in the nation, has been a proponent of jury questioning for several decades. Here is what Jan Crawford and her fellow reporters wrote in the Chicago Tribune, in the “On Law” section, on March 29, 1994 regarding Urbom and juror questioning in a high-profile criminal case that Warren was trying in Chicago:

By allowing jurors to question witnesses, visiting U.S. District Judge Warren K. Urbom has set a precedent for federal jurists here.

More importantly, the Lincoln, Neb., senior judge, who is known for his legal acumen and fairness to litigants, said he hopes inquisitive jurors will fill any “holes in the evidence.”

“They have questions, too, and they want the opportunity to ask them,” said Urbom, in town to preside at the bombing conspiracy trial of Herbert “Mickey” Feinberg, an associate of convicted pornographer Reuben Sturman.

The case stems from a 1992 plot gone awry to extort money from several Chicago adult bookstores. Instead, a pipe bomb exploded prematurely, killing one bomber and injuring another.

Most of the jurors’ questions in the continuing trial-funneled through Judge Urbom, who poses them to those on the stand-have been reserved for Martin Gavin, a member of the police bomb squad. He told of very gently recovering a live pipe bomb from the grisly scene at Dearborn and Division Streets.

“It fell out of a rolled-up pair of pants (taken by firefighters from a bombed-mangled car) and right onto my foot,” Gavin deadpanned.

 A 24-year veteran of the bench, Urbom said he decided to allow jurors to ask questions in both civil and criminal cases-the latter with the approval of counsel-as a logical extension of the jury’s fact-finding mission.

So the experiment began, and the 8th Circuit Court of Appeals has allowed Urbom to let jurors speak up. But that court, Urbom conceded, “is not enamored with the idea.”

Second, there is little doubt that allowing jurors to ask witnesses questions (orally or in writing) would increase juror satisfaction. That said, I have not seen any convincing empirical evidence that jurors who are able to ask questions render better verdicts than jurors who are not able to ask questions.

Third, I am not convinced that because federal trial judges can ask questions that means jurors should be able to do so too. After all, federal trial judges are legally trained, jurors are not. Anyway, most federal trial judges that I know ask very few questions of witnesses during jury trials. In short, it is a false analogy to compare judges to jurors.

Fourth, and most importantly, Judge Urbom is quoted in the Crawford article as saying that he hoped inquisitive jurors would fill any “holes in the evidence” through the device of jury questioning.  That is precisely what I don’t want to happen.

As Jeff Gamso, a very experienced criminal defense lawyer, stated in his comment (October 30, 2013 at 10:13 am) we have an adversarial, rather than an inquisitorial, process. Jury questioning can (and does) change the nature of the process. For example, consider this comment from a former juror to my post on this subject:

I recently served on a criminal jury in Nevada. Jurors are permitted to write questions, submit them to the court, and the attorneys and judge go in the back room and I assume argue over which are to be answered because the judge decides which ones get answered and the others are just tossed. The question are indeed identified to the judge and counsel by juror name and number.

I found the process to be important because a number of very good legal questions went unasked by the prosecution, I assume due to lack of experience. Questions to expert witnesses such as “Are you an expert in forensic psychiatry (expert was testifying on the subject) and is there a certification given in that discipline? ” Pretty basic stuff you’d expect one side to use to impugn the other, but was not asked by counsel. Some of the questions made the witnesses squirm because they were so on point.

trader says: October 30, 2013 at 3:52 pm

Put bluntly, “filing in holes” in the evidence is not the proper function of jurors, so say I.

There you have it. I don’t allow jurors to ask questions orally or in writing. That’s true even if the lawyers like it!

But, here is a secret. When I was a young judge, I was just too damned afraid of the loss of control to allow jury questioning. I had no highfalutin reasons for my decision. Now, I am too old to change. Frankly, if this post has any real significance, it is in that truth (Kopf was too scared to allow the practice when he was a young judge and he is too old now to change) that you will find it. That’s “legal realism” at its purest, my friends.


6 responses

  1. Interesting. If you don’t mind me asking, do you think that judges should be allowed to choose whether or not they allow jurors to ask questions, or do you think that such a decision should be consistent throughout a circuit (or at least a courthouse)?

  2. Southern Law Student,

    If I were the King, I would prohibit the practice. Short of that, if were on the Circuit, I would prohibit the practice until and unless Congress approved it. All the best.


  3. I would respectfully point out that, as jury questions are filtered through review by counsel and the Court, it makes no difference whatsoever that the jury is not legally trained. Judges, on the other hand, can abuse their authority even inadvertently, as no one is in an effective position to correct the errors committed. Moreover, a judge has to maintain the appearance of impartiality to do his job and, in examining witnesses,the judge “makes the case his own.”

    If I were the King, you don’t want to know what I would do. 🙂 Short of that, I would prohibit judges from asking questions, but let jurors do so under a regime of appropriate safeguards, which the parties and Court were in a position to enforce.

  4. I think that procedural rules ought to be uniform throughout the federal system, at least. By way of example, some judges prohibit briefs of a length greater than 15 pages, whereas the D.D.C. has a uniform limit of 45 pages. The D.D.C. requires you to list the mailing addresses of all known parties, whereas the District of Colorado does not. It means that a litigant has to know the Federal Rules, the District rules, and each judge’s own Practice Standards, and it is almost impossible not to get tripped up by one of them.

    Litigation should not resemble a game of Jeopardy, where you can lose by not phrasing your answer in the form of a question. Just a personal pet peeve.

  5. Jurors can ask questions in my state. They rarely do, and the majority of the time the questions they want to ask don’t get asked. After cross/redirect/recross is complete, the judge asks the jurors for questions. If anyone submits a question, the parties go to the bench, and the judge hears argument from each side’s attorney. In my limited experience (I am younger attorney), the questions are either strongly objected to by side or not really that important. Again, in my limited experience, the questions either ask something that can’t be asked due to the rules of evidence, or it is a minor detail that isn’t really that important. For example, I’ve had jurors ask about details of convictions/arrests/bad acts that were admitted via 404(b). The court is not going to allow that sort of thing. I also had a juror ask once if a lady could see what the weather was like while she was in the back of an ambulance.

    I agree with the judge’s position, but I don’t really see the harm since both parties are given the opportunity to object and argue their side. Then again, I’ve also never witnessed a really good jury question either.

    One cool part about jury questions is when a juror submits a very defense-friendly question, you know he/she is already buying your theory of the case 🙂

  6. Mathew,

    Thanks for your thoughts. Your point about jurors asking questions that can’t be answered raises an interesting opportunity for empirically-minded law professors. Wouldn’t it be fascinating to to collect a year’s worth of jury questions and then determine the number of “good” ones and the number of “bad” ones and the number that were neither “bad” nor “good” but silly or irrelevant? It would be a big project, but worth the effort, perhaps.

    All the best.


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