Jurors may question witnesses in criminal trials, Third Circuit rules.

Jurors may ask questions during a federal criminal trial if procedure is followed and the court's stewardship and rights of the accused are protected, the Third Circuit Court of Appeals ruled in a case of first impression. (United States v. Hernandez, No. 98-5266, 1999 WL 308807 (3d Cir. May 17, 1999).)

The unanimous ruling upheld a New Jersey district court judge's practice of allowing jurors to ask witnesses written questions that are reviewed by the judge and lawyers outside hearing of the jury and posed to the witness only if the court agrees.

Julio Hernandez was on trial for hijacking a tractor-trailer and stealing its cargo. A juror wanted to ask a witness, "What kind of rear doors are on the rear of the trailer?" Chief U.S. District Judge Anne Thompson decided not to ask the question.

Nevertheless, defense counsel said the question suggested in its substance and timing that the juror assumed Hernandez was guilty. Counsel also objected to the practice of entertaining juror questions. Thompson countered that the question was merely a fact question and declined to voir dire the witness.

The issue of first impression was the more general challenge to allowing juror questions. Third Circuit Judge Theodore McKee said other courts of appeal that have addressed the issue have not adopted a rule barring juror questions.

For instance, in United States v. Polowichak, the court did not approve jurors asking questions in front of other jurors but said the judge could require the questions in writing and could restate them. (783 F.2d 410 (4th Cir. 1986).) In United States v. Sutton, the court called the practice of allowing jurors to ask questions "a procedure fraught with perils," but ultimately allowed it. (970 F.2d 1001 (1st Cir. 1992).)

Other state and federal courts have ruled that juror questioning of witnesses is a matter that should be left to the judge's discretion. (See American Bar Ass'n, Civil Trial Practice Standards 8 (1998).)

The practice has been criticized by the Eighth Circuit: "[J]uror interrogation of witnesses presents substantial risk of reversal and retrial. Where a record is properly made and the record permits a conclusion that prejudice occurred, this will be the inevitable result." (United States v. Welliver, 976 F.2d 1148 (8th Cir. 1992).)

Juror questioning is on the books in some states, at least for civil trials. For example, since December 1995, Arizona jurors have been allowed to submit written questions to the court, provided the attorneys are allowed to object outside the presence of the jury.

Proponents say allowing jurors to ask questions involves jurors in the trial and may help them understand the evidence or determine a fact in issue in complex cases. Most supporters agree that juror questions should not be asked until after cross-examination, that they should not be considered part of the lawyer's case, and that counsel should get a chance outside the hearing of the jury to object to a juror's question.

The ABAs Civil Trial Practice Standards, which went into effect in January 1998, support this practice. "With appropriate safeguards, juror questioning can materially advance the pursuit of truth, particularly when a jury is confronted with a complex case, complicated evidence, or unclear testimony," said the task force report.

Although Thompson took precautions in the Hernandez case--requiring questions to be in writing and posed by the court rather than the attorneys--the assistant federal defender argued that allowing jurors to question witnesses violates a criminal defendant's rights. By not investigating alleged juror misconduct, Thompson denied Hernandez his Sixth Amendment right to a fair trial before an impartial jury, the defender said.

The Third Circuit noted there was nothing to suggest juror misconduct except the unsupported inference that the juror assumed Hernandez's guilt. "We do not think that one fact question which is submitted to a judge in writing, but not even asked, can be labeled an abuse of discretion," McKee wrote.