Bar News - October 20, 2006
Judges Are Deadlocked on Allowing Juror Questions
By: Dan Wise
It has been five years since Superior Court Rule 64-B was first implemented as a temporary rule (and made perma-nent on Aug. 27, 2003), giving judges the discretion to pose jurors’ questions to witnesses. But, as comments by panelists at a recent NHBA CLE Superior Court Forum indicate, the practice is not widely supported by the Superior Court bench. Chief Justice Robert Lynn, who was not a panelist at the CLE but interviewed later, said he experimented with allowing jury questions at a few trials and does not believe many judges are allowing jury questions in civil trials, although note-taking is becoming more widely accepted.
Associate Justice Carol Ann Conboy, a longtime proponent of allowing juror questions, was one of four judges at the Sept. 29 CLE program, the first held in the new NHBA seminar room in the Lower Level of the 2 Pillsbury Street location of the Bar Center. Of her fellow panelists, only Justice Bruce Mohl expressed support for allowing questions, while Justices James Barry and Gillian Abramson, as well as several members of the audience, voiced objections or concerns.
Conboy’s presentation on jury questions begins with a scenario of decision-making that is removed from a courtroom context. It questions the logic of requiring decision-makers to sit through many days of presentation of evidence and advocacy without the ability to take notes, ask questions, or confer with colleagues before being asked to make a significant decision.
Conboy said she believes that allowing jurors to take notes during testimony (but not during attorneys’ arguments) and allowing them to submit potential questions to the jury, makes jurors feel more involved in the trial and helps them retain information.
“Jurors are craving information—clarifying information,” Conboy said. “The experience of allowing juror questions has been so inspiring to me. Once jurors are selected for a jury, they become drawn in to the trial, and become very committed to the process.”
Much of her presentation focused on the process—what’s allowed and what’s not—as well as rebutting the criticisms of allowing juror note-taking and questions.
Briefly, Superior Court Rule 64-B, and current court practices allow:
- Juror questions, at the discretion of the judge, in civil trials.
- Judges to allow jurors to take notes during witness testimony. The notebooks, issued by the court, stay in the courthouse and do not go home with the jurors. The notebooks can be used during deliberations, but jurors are instructed to use them as a “personal refresher, not as a verbatim record,” Conboy said. She also added that she instructs jurors to not become preoccupied with note-taking. “I remind them not to miss out on the opportunity to observe witnesses eye-to-eye and make judgments on their credibility.”
- At the conclusion of testimony, the jury is allowed to submit questions (written on single pieces of paper with the juror’s seat number on the back) which are then reviewed by the judge, usually at the bench with both counsel present. Attorneys may request that a question not be asked, but it is the judge’s decision.
Typically, Conboy said, a significant witness may produce three to five allowable questions, which do not add up to prolonging the trial to a great degree. She often has to exclude questions in personal injury trials regarding insurance coverage, but she believes that jurors often ask insightful questions concerning factual issues that attorneys’ own questioning failed to adequately clarify. Conboy disputed that juror questions have “blown up” an attorneys’ case strategy by pinpointing an area that the attorneys sought not to reveal, but other judges on the panel disagreed.
For example, Conboy’s recitation of questions that she has allowed in past trials included a question regarding the number of times a medical provider had performed a particular operation. Barry said he would not allow such a question if it had not already been asked by the attorneys.
After the program, Barry was asked to elaborate on his reluctance to embrace the practice. “My experience with questions is from the military courts, where the members of the jury are allowed to ask questions,” said Barry, a US Marine veteran. “They would fight among themselves. They were marines—they are supposed to fight.” (Conboy is also a veteran, having retired from the US Air Force before joining the Bar.)
On a more serious note, Barry added that allowing jurors to bring in additional evidence through the questions they initiate distorts their role. “I am concerned that jurors might become participants in the trial,” he said.
Abramson also expressed her doubts with the practice, saying she fears that jurors’ questions may lead them to become partisans in the trial, and they might ask questions that involve them in “debates” with witnesses.
Mohl said that jury questions can be revealing of what jury members are thinking, but he centered his comments on the value of note-taking, and he encouraged attorneys to distribute notebooks of key exhibits and documents for the jury. He said that if the jury has a notebook with key elements of evidence highlighted, it makes it much easier for the jury to follow the testimony involving documents.
Conboy acknowledged that there is still resistance from many attorneys on a number of grounds, the chief concern being that allowing juror questions widens the playing field. “Lawyers are smart and compulsive and they don’t like to give up control of a case to the jury,” she said. “You worry that you are turning jurors into investigators instead of fact-finders.”
Ultimately, Conboy believes that allowing jurors to take notes and ask questions will make them better, more involved jurors. “I encourage you to keep an open mind if a judge suggests that the jury be allowed to take notes and ask questions. It is so valuable. You will learn so much about what the jurors are thinking. They love the opportunity and they are engaged in a way they never are when they are just sitting there.”
(The debate over jury questions was earlier covered in two Bar News articles: April 6, 2001 and July 6, 2001. Type “juror questions” in the Search function at www.nhbar.org.)
Another presentation by Barry, on the topic of civility, included a video (from another state) of a deposition that degenerated into name-calling and exchanges of physical threats by the attorneys.
Abramson said, in her presentation, that a key insight she has gleaned from conversations with jurors is that, although they are dedicated to the process of justice, they are especially sensitive to court and attorney practices that they believe squander their time. She counseled attorneys to be as efficient as possible in presenting a case, and managing trial time to minimize the imposition on jurors’ time. One attorney related a successful experience he had in federal court in Boston, where attorneys and the court agreed to compress trial days into four-hour morning sessions that started early, and ended before lunch. This provided consistency in scheduling of witnesses; a free afternoon for the judge to hear motions on unrelated matters and for the attorneys to prepare the next day’s testimony; and an easier burden on jurors.
Mohl discussed his experience with court sessions and programming specifically for drug offenders. One of the major values of the program is the arrangement for obtaining prompt drug-testing results, which produces immediate consequences for failure, and heightens compliance.
The plenary portion of the Superior Court Forum program is available for Live Credit at “Online CLE” at www.nhbar.org.