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Bar News - July 6, 2001 Judges Differ on Allowing Juror Questions By: Dan Wise Does it increase burden of proof? ALLOWING JURORS TO ask questions about testimony (through the presiding judge) is one of several innovative ways that juries can participate in trials in New Hampshire’s Superior Court. While the practice has its enthusiastic supporters, it also faces many skeptics among Bar members and judges. At the NHBA CLE Superior Court Forum on June 15, Associate Justice Tina L. Nadeau, a proponent of allowing juror questions, explained the precautions taken in introducing such questions and the advantages she’s seen in using them since temporary Superior Court Rule 64-B, which gave trial judges the discretion to allow juror questions, became effective on Jan. 1, 2001. Previously the consent of both sides had been required to utilize the practice. (See the related article, Juror Questions: One Judge's Experience by Hon. Carol Ann Conboy on her experimentation with juror questions over the years.) In her accompanying materials at the CLE, Nadeau presented tallies from six civil cases in which juror questions were permitted. Her informal survey addressed some of the practical concerns that attorneys and judges have expressed over the practice. In two trials lasting four and five days, only about an hour was added to the entire trial time to address some 50 juror questions posed during each trial, while in a one day trial it added five minutes, Nadeau found. "The questions helped further develop the testimony" and demonstrated that the jurors were understanding the details and key issues of the case, she said. Nadeau added that she’s doesn’t believe the process inherently favors one side or the other, although she is cautiously avoiding the practice in criminal cases. However, another panelist, Associate Justice William J. Groff, expressed "a fundamental difference of opinion" on juror questions. "What it really is," he said, "is the jurors presenting evidence. It can affect the burden of proof." If evidence hasn’t been drawn out through the original testimony, it isn’t appropriate that it should come out through juror questions, Groff believes. Nadeau responded that their differences might stem from contrasting views of the purpose of a trial. "How can we be afraid of what the facts are? The purpose of trial is arriving at a just result," she said. At the CLE, one attorney who had participated in a trial in which Nadeau had allowed juror questions asked her, "Doesn’t this process of allowing questions inherently favor the party with the burden of proof?" "It can favor either side," Nadeau answered. "It can help the defendant because they (the defense) know what issues to address. More information comes out about what the jurors are thinking about the case, and their questions can indicate areas where they are confused." Nadeau also believes allowing jurors to ask a question enhances their ability to listen to the evidence and makes them feel more involved. "If the jurors feel more involved, and as average citizens they are more supportive of the trial process, the better off we all are in the justice system. So even if it doesn’t affect the outcome of a particular case, allowing jurors to ask questions greatly enhances their experience," she said. However, the enthusiasm of Nadeau and Conboy – who has been experimenting with juror questions since 1994 – hasn’t been contagious. Another CLE panelist, Associate Justice Larry M. Smukler, said juror questions were not a high priority item for him because he doesn’t believe they make a difference in a trial’s outcome. Superior Court Chief Justice Walter L. Murphy said the matter is under study and he hasn’t taken a position. "There is a split in the Superior Court on the subject," he acknowledged in an interview. "Judges Conboy and Nadeau are leading the charge in favor of it, but most of the other judges either haven’t done any trials with juror questions or they have done it and don’t like it," Murphy said. He added that he is planning to conduct surveys of the participants (judges, jurors and lawyers) in such trials and will issue a report on his findings this fall. Other jury practices The CLE panelists discussed several other innovations involving jurors that had emerged as recommendations from a 1997 Superior Court study committee chaired by now-retired Associate Justice Douglas Gray. These practices can be utilized at the discretion of the Superior Court judges with the consent of the parties. Nadeau and Smukler said they find attorneys reluctant to reopen testimony or reargue issues identified by deadlocked juries and both support jury note taking and juror notebooks (containing key exhibits). Smukler also suggested that courthouse designers should provide chairs with fold-down surfaces to facilitate note taking and referring to juror notebooks. Murphy said he believes more can be done to make sure jurors are following evidence, especially in cases with complex fact patterns. In a lengthy trial several years ago, Murphy, then a trial judge, permitted brief summations by the attorneys at the end of each week of testimony to aid jurors’ understanding. Another change in jury trial practice is in the works. Both the House and Senate have passed bills (originated as HB 588) that would permit lawyers to directly question jurors in the selection process. At press time, a House-Senate conference committee was considering the bill. The main difference in the separate bills proposed by the House and Senate is that the Senate had proposed attorney-conducted voir dire as a pilot project in Merrimack County only. Murphy said the Superior Court had testified on the bill, expressing a number of concerns. "In my opinion, it takes more time and leads to a risk of the lawyers trying to persuade the jurors to accept their version of events, not necessarily to select objective jurors," Murphy said. Murphy said he was also concerned about another provision of the bill that gives each side six pre-emptory challenges, up from three each in current law. On a related point, Smukler criticized attorneys’ reluctance to seat jurors who "know too much." He said he regrets seeing educated professionals such as teachers being routinely struck from juries. Smukler also urged attorneys to realize that as society changes, how juries operate will change, and to accept the fact that while change can be scary, it is inevitable. Nadeau echoed that point. "The juror questions issue demonstrates that old practices are difficult to change, but we have to realize that we cannot continue trying cases the way we’ve tried them for the past 40 years," she said.
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