1.16 QUESTIONS TO WITNESSES BY JURORS
Whether to allow jurors to ask questions is a subject debated among judges. There are risks involved in allowing jurors to ask questions of witnesses. See DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 517 (4th Cir.1985) (discussing risks of juror questioning). If a judge decides to allow questions, the following instruction and procedures may be helpful.
You will be allowed to propose written questions to witnesses after the lawyers have completed their questioning of each witness. You may propose questions in order to clarify the testimony, but you are not to express any opinion about the testimony or argue with a witness. If you propose any questions, remember that your role is that of a neutral fact finder, not an advocate.
Before I excuse each witness, I will offer you the opportunity to write out a question on a form provided by the court. Do not sign the question. I will review the question with the attorneys to determine if it is legally proper.
There are some proposed questions that I will not permit, or will not ask in the wording submitted by the juror. This might happen either due to the rules of evidence or other legal reasons, or because the question is expected to be answered later in the case. If I do not ask a proposed question, or if I rephrase it, do not speculate as to the reasons. Do not give undue weight to questions you or other jurors propose. You should evaluate the answers to those questions in the same manner you evaluate all of the other evidence.
By giving you the opportunity to propose questions, I am not requesting or suggesting that you do so. It will often be the case that a lawyer has not asked a question because it is legally objectionable or because a later witness may be addressing that subject.
In the event the judge allows jurors to submit questions for witnesses, the judge may consider may consider taking the following precautions and using the following procedures:
1. The preliminary instructions should describe the court’s policy on juror-submitted questions, including an explanation of why some questions may not be asked. All juror-submitted questions should be retained by the clerk as part of the court record whether or not the questions are asked.
2. At the conclusion of each witness’s testimony, if a juror has a written question it is brought to the judge.
3 Outside the presence of the jury, counsel are given the opportunity to make objections to the question or to suggest modifications to the question, by passing the written question between counsel and the court during a side-bar conference or by excusing jurors to the jury room.
4. Counsel or the judge asks the question of the witness.
5. Counsel are permitted to ask appropriate follow-up questions.
6. The written questions are made part of the record.