IN EARLY 1994, I began experimenting with allowing jurors in civil trials to ask questions of witnesses. Because court rules did not provide for juror questions, I utilized the process only when I could persuade counsel of its merits and obtain agreement by both parties. Effective Jan. 1, 2001, however, a temporary rule adopted by the New Hampshire Supreme Court gives trial judges the discretion to permit juror questions. (See Superior Court Rule 64-B.) In reporting on my seven-year experience, I hope to familiarize the bench and Bar with the process and to encourage its use. I regard juror questions as one of the most satisfying jury innovations.

Juror questions go hand in hand with juror note taking. (See Superior Court Rule 64-A.) At the commencement of evidence, notebooks are provided to the jurors and the judge explains both processes. Note taking is permitted only during presentation of evidence; it is not permitted during opening statements, closing arguments or the charge. Jurors may not take their notebooks with them during recesses, but may take them into deliberations. The jurors are told that note taking is permitted as a personal memory aid, and should not interfere with observation of witness demeanor or be used as "authority" to persuade fellow jurors during deliberations. Juror notes are not part of the record of the trial; they are destroyed immediately after trial.

Juror questions are submitted in writing following the completion of witness examination by both sides. Thus, after counsel have completed examination of a particular witness (direct, cross, re-direct, re-cross), the judge inquires of the jurors as to whether any has questions for the witness. If so, the jurors write the questions out on pages from their notebooks, indicating their seat numbers on the reverse side of the pages. The bailiff collects the questions and brings them to the judge who then confers at the bench with counsel and entertains any objections. The judge explains to the jury that the judge decides, based on the rules of evidence, whether a particular question is asked, and therefore if submitted questions are not asked, the jurors should not be offended, should draw no adverse conclusions and should not speculate concerning unasked questions.

After the judge determines whether to ask any of the questions submitted, or to rephrase them, the judge then puts the questions to the witness. After the witness responds to all questions asked, counsel are permitted follow-up examination relating to the areas elicited by the juror questions.

Early on, many attorneys declined the opportunity to participate in the process fearing loss of control over their cases. The attorneys who did participate did so with reservations, but for the most part were pleasantly surprised at how effective and relatively non-intrusive the process is. As time has passed and our experience with juror questions has grown, more attorneys are recognizing the merits of juror questions. Attorneys have told me that they appreciate knowing of juror concerns and being able to address them before deliberations begin, when the opportunity to address juror questions is all but nonexistent.

The jurors enjoy the process immensely. Many have told me that the opportunity to ask questions—even if they do not ask any—makes them feel more like participants in the trial process. The irony, of course, is that the jurors are the ultimate fact-finders—they are not only participants, they are the heart of the process. Questioning is the most natural and logical component of decision-making. Jurors see their ability to ask questions as critical to making proper decisions.

Juror questions are quite impressive. In my experience, the number of questions submitted is relatively few—on average, three or four per witness. The questioning process does not add appreciably to trial time. The questions do, however, reflect that jurors carefully follow the testimony, even in the most technical cases. The precision of some of the questions evidences intelligent, "active" listening. On a number of occasions, several jurors have posed essentially the same question. While there have been irrelevant and improper questions posed, which I did not ask, there have been no questions that destroyed a particular trial strategy (a concern often expressed by attorneys reluctant to participate), or which suggested that the juror was biased or in some way unfit to continue to serve. (The writing of seat numbers on the reverse of the question sheets facilitates juror identification in the event a question indicates that a juror should be disqualified for some reason.) Neither have the questions indicated that the jurors have stepped outside their role as fact-finders and become investigators or advocates. I have included (see next page) examples of juror questions that I have asked, and a few that I have not asked.

I have allowed juror questions in a variety of cases, including motor vehicle accident, slip and fall, breach of contract, defamation, products liability and medical negligence cases. The verdicts have included defendant’s verdicts, and plaintiff’s verdicts from $1,800 to $70,000, with several comparative negligence verdicts allocating fault. The asking of juror questions does not seem to have any relationship to the verdicts rendered.

The temporary rule does not prohibit juror questions in criminal trials. However, given the state’s burden of proof, as well as the applicable constitutional principles, it is my view that as a general rule juror questions should not be permitted in criminal trials.

Based on my experience, I have concluded that the ability of jurors to ask questions is an important tool in the fact-finding process. Some may argue that the "search for the truth" goal of trials is an unrealistic aspiration inconsistent with our adversary system. But I have yet to see a juror question elicit an overlooked element of proof. And even the most zealous of advocates have welcomed the chance to learn what is on jurors’ minds and to respond directly to those concerns. One might argue that such affords counsel more control over the case than traditionally possible.

While reasonable people may eschew fixing a system that "ain’t broke," I have observed that the process engages jurors more directly in the trial and contributes to making their experience a more satisfying one. As representatives of the community at large, jurors come away from this process with increased confidence in our justice system. I believe that further experimentation is justified. With more extensive experience, we may come to agree that juror questions add a valuable dimension to trial by jury. I welcome comments from the bench and Bar on other experiences with the process.

The following are examples of juror questions submitted and asked:

"When were the photographs taken?" (Two jurors asked this.)

"Can you tell from x-rays or MRIs if an injury is old or recent?"

"Did the Subaru have an air bag? If yes, did it deploy?"

"Please show the jaw movement during the procedure."

"How frequently is bacterial endocarditis a common complication of gingival curettage?"

"Could you explain in more detail the other ways bacteria can get into the blood stream. For example, eating an apple, or flossing. How does this happen?"

"Is it possible that even though Dr. (defendant) operated within the standard of care, his treatment of plaintiff could still be responsible for the subacute endocarditis that plaintiff suffered?"

"Could the surface contaminants be garlic that wasn’t totally cleaned out when the picture was taken?"

"Is it possible that there could have been two origins causing two fractures which may have taken place at two different times and weakened the jar enough to cause the total fracture?"

"Where was the car when the motorcycle put his brakes on?"

"Were the windows of your car open when you heard the cycle?"

"What is your weight? Can you give the approximate weight of your motorcycle without you on it? When you struck the mailbox, was your weight the only force that impacted the mailbox or was the motorcycle also contributing to the blow?"

"Did your formula for determining the speed assume the vehicle to be stopped at the end of the last skid? Are there different formulas for the two cases—stopped vs. not stopped?"

"Would the darkness of the skid marks indicate the amount of brake pressure applied?"

"As a result of the incident and the newspaper articles, are there any derogatory statements on your employment record?"

"You said that you could barely see the smoke in the woods where the vehicle was. Yet the vehicle was fully involved. I’m confused by this—was it far into the woods from the road?"

"Please indicate on the diagram the areas you salted." (Several jurors asked similar questions.)

"In your understanding of this verbal agreement, was your responsibility for salting the area limited to only the time in which your office conducted its business?"

"Some concern was voiced by the plaintiff’s attorney regarding the time frame of the patient being under in attempts to intubate. Do you feel that the 15- to 20-minute period was an unusually long period of time?"

"Having no prior experience with formal municipal employment, did you ascertain if other department heads had written contracts for the six-year periods?"

"Please clarify the actual date of the report that refers to architectural barriers and disrepairs."

"Is it possible for the symptoms of an injury to develop over a period of time (months) if aggravated by repeated motion out of the ‘normal’ range?"

"Approximately how many patients had you employed this procedure on prior to performing it on the plaintiff?"

"What, if anything, can be done to repair a bulging disk?"

"Approximately how fast were you traveling at the time of the crash?" (Two jurors asked this.)

"What were the roads like? Wet, dry, icy, snowy?"

Examples of juror questions submitted but not asked:

"Does Mr. (witness) have a history of vandalism or destruction of property, or other criminal behavior which is not drug-related?"

"How much of your estimated $13,500 in lost salary was covered by disability insurance? How much of your medical and physical therapy bills totaling $9,345 was covered by medical insurance and how much did you have to pay?" (These issues were addressed in the charge.)

"Why are there no national standards for glass production?"

"Do you feel you were negligent in your duties as a driver of a motor vehicle? If so, do you feel that this negligence was the direct cause of the accident?"

(To defendant dentist:) "Are you still performing this procedure?"

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer