There’s No Question: Allow Juror Questions

The Boston Globe reported recently that jurors hearing a federal public corruption trial submitted an astounding 281 questions of witnesses through the presiding judge.  Based on that news, the ABA Journal posed a “Question of the Week” to its readers about whether the practice of allowing jurors to submit questions should be permitted.

This ignited a heated and sometimes nasty debate between those in favor and those opposed to the practice.  Our two cents?  In most circumstances, we enthusiastically favor juror questions.  A few reasons why:

• Clarity – In our experience, most juror questions are simply seeking clarity on a confusing or incomplete aspect of a witness’ testimony.  We believe allowing questions helps ensure your witness has gotten his or her point across in a way jurors understand and keeps the jury from deciding a case based on misinformation.
• You can be too close to the case – When you’ve spent months or years working on a case, sometimes you can “lose the forest for the trees” and misjudge what will be important for jurors.  Juror questions act as a safeguard in case you and your witnesses don’t recognize what jurors will find really important and want to know more about.
• The Googling epidemic – Our research has shown repeatedly that jurors think it’s OK to use the Internet to do research about a case they’re hearing, especially if it’s just for educational or clarification purposes.  The problem, of course, is you have no idea what they’ll find.  By answering jurors’ questions during trial, you can head off their impulse to do outside research.
• Questions are valuable intel – You can tell a lot by jurors’ questions – what they’re skeptical about, what they don’t understand and sometimes even which way they’re leaning.  These questions are the only real-time, concrete feedback you can get during a trial, and this information can help you adjust your strategy or shore up weak aspects of your case before it’s too late.

Based on the Globe article and ABA Journal debate, it seems the most common objections to allowing juror questions are that it encourages jurors to become advocates for one side or the other before the they hear all the evidence, and it takes the control of how the case is tried away from the attorneys. 

For the first criticism, we think simple procedural safeguards can prevent inappropriate advocacy.  For example, jurors should submit individual questions only (to avoid jurors discussing the case with each other) and should write their questions down for the judge and attorneys to consider.  That way nothing inappropriate or unduly biasing gets read in front of the jury.

Regarding lawyers controlling how the case is tried, we believe the modest amount of control you will give up by allowing questions is more than compensated for by the significant advantages of knowing what jurors want to hear and supplying them with the facts they need to come to an educated decision.  Just because you came into the trial with a plan and a strategy doesn’t mean it’s written in stone.

From our perspective, one of the great advantages of conducting focus group research before trying a case is it allows you to learn ahead of time what questions a jury might have and proactively answer them before jurors even ask.  If you’d like to learn more about our focus group process, or our online research process for lower-exposure cases, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.