HON. TINA L. NADEAU of Strafford County Superior Court is one judge who has recently been giving jurors in civil trials the chance to become more active participants in cases by allowing them to take notes during trial and put written questions to witnesses. See accompanying article on her experience with juror questions.

According to Eileen Fox, Counsel to the NH Supreme Court, there is currently no rule regarding this practice. Fox said that a rule change proposal being considered by the Supreme Court would create a policy for juror questions during trial. The proposal is to amend Superior Court Rule 64 by adding a section stating that "It is within the discretion of the trial judge to permit jurors to ask written questions." The procedure for doing so is then detailed in a proposed administrative order. The Supreme Court expects to review the proposal "in the near future," said Fox.

Juror questions have been allowed in NH in civil trials if both parties and their attorneys agree to it, but there are still "lots of unanswered questions" about applying the practice to criminal cases, according to Nadeau. In criminal trials in our state, Nadeau said, jurors are sometimes allowed to take notes, but cannot ask questions of witnesses.

According to Nadeau, there are two general jury instructions related to the practice of juror note taking and questioning that are part of Judge Murphy's Pattern Civil Jury Instructions. They detail how a judge should instruct jurors in allowing them to take notes and ask questions during trial. "As far as taking notes, you tell them they don't have to, but if they do so, it is with limitations," said Nadeau. "They are not to take excessive notes that could interfere with their hearing the case. They are to confine their notes to parties, dates and times of events. It's not meant to be an official transcript," she said.

In her courtroom, Nadeau has found that in cases in which jurors are allowed to take notes, about 50 percent do so, although not excessively. "They jot down a few things, but there is no serious note taking," she said.

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