Jury Interrogation of Witnesses

By JUDGE JOHN T. WOOLDRIDGE

The questioning of wit-nesses in court proceedings by jurors has been described as a controversial jury-reform innovation.1 However, in my experience as a young lawyer in the U.S. Navy, jury questioning of witnesses was customary. Military courts, known as Article I courts, specifically allow its juries to examine witnesses;2 the jurors in military courts are commonly referred to as court-martial members.3
While practicing as a civilian trial attorney, I never encountered juries asking questions in any case, despite the fact that the method is utilized in various Texas jurisdictions.4 However, in my current role as a state district judge I frequently allow for jury interrogation of witnesses in selected cases.

Military Courts
Military Rule of Evidence5 614 specifically authorizes court-martial members to interrogate witnesses.6 Further, M.R.E. 614 outlines the proper procedure in allowing the members to ask questions. The rule states:
“Members shall submit their questions to the military judge in writing so that a ruling may be made on the propriety of the question or the course of questioning and so that questions may be asked on behalf of the court by the military judge in a form acceptable to the military judge. When a witness who has not testified previously is called by the military judge of the members, the military judge may conduct the direct examination or may assign the responsibility to counsel for any party.7”
Any objection a party has to the calling and interrogating of witnesses by either the military judge or the members of the jury is made when the members are not present or at the next available opportunity.8
The procedure for allowing the members to interrogate witnesses is outlined in the Guide for General and Special Courts-Martial provided in the United States Manual for Courts-Martial.9 The military judge instructs the members on the method for asking questions, and members submit their questions to the court in writing. Each member’s questions are then collected by the bailiff (if any) or trial counsel, at which time the questions are marked as an appellate exhibit, examined by counsel for each side, and given to the military judge. Any objections to the questions should be raised outside the presence of the jury (in what is known as an Article 39(a) session) or at a sidebar conference.10

Civilian Courts
Federal Cases
Rule 614 of the Federal Rules of Evidence, provides:
(a) Calling by court – The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by court – The court may interrogate witnesses, whether called by itself or by a party.
(c) Objections – Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.11
In United States v. Callahan, the Fifth Circuit approved the use of jury interrogation, albeit with caution.12 In Callahan, only one juror question was submitted in the course of the trial. On appeal, it was argued that encouraging jurors to submit questions effectively invaded the province of the attorneys and distorted the proper roles of counsel, the judge, and the jury.13
The court determined, however, that with proper safeguards the practice of allowing an occasional question from the jury was not improper. The court reasoned that because the basis for trial is to seek the truth, if a juror is not clear on a particular point it makes “good common sense” to allow the juror to ask a question.14
In its opinion, however, the court cautioned that the proper handling of questions by the jury was a matter within the trial judge’s discretion. While not endorsing any particular procedure, the court noted that “[d]istrict courts must in each case balance the positive value of allowing a troubled juror to ask a question against the possible abuses that might occur if juror questioning became extensive.”15

Texas Cases
Texas does not have a corollary to Federal Rule of Evidence 614, as Texas Rule of Evidence 614 addresses the exclusion of witnesses (i.e., “invoking the Rule”).16 It has been suggested that since there is no rule directly forbidding it, there is nothing to prevent jury questions in state civil cases.17 Since the 269th District Court hears primarily civil cases, this paper will address the issue only in this context.
In Fazzino v. Guido, the First Court of Appeals specifically addressed the issue and procedure of jury interrogation of witnesses.18 Recognizing an issue of first impression in a civil matter, the court authorized juror questions with proper procedural safeguards. The court looked to the Federal decision in Callahan in allowing for juror interrogations in Texas courts.19 One caveat is apparent from the Fazzino decision, however, as the court noted that while the trial judge took steps to ensure procedural protection in the manner in which the jury questions were submitted, neither side objected to the procedure at trial. Nor, the court found, was either side injured by any of the jury questions.20
It is this goal of procedural safeguard and lack of prejudice that must be in attendance for jury interrogation to be successful,21 as the procedure is susceptible to abuse when a juror or judge abandons his or her proper role and assumes that of advocate for one side or the other.22 However, as pointed out in the Notes of the Advisory Committee on Rules to Federal Rule of Evidence 614, “the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule. The omission in no sense precludes courts of review from continuing to reverse for abuse.”23

Pros and Cons of Jury Interrogation
Arguments “For” Jury Questions
1. Jurors will be more attentive.
2. Jurors will ask overlooked or omitted questions, reducing juror speculation.
3. Jurors will feel like participants and take more responsibility for their decisions.
4. Jurors will have a means of communicating to the attorneys at the level of jurors’ comprehension.
5. Jurors’ misconceptions can be dispelled.
6. Procedural safeguards can prevent any misuse of questioning.
7. Deliberation time will be shortened, as there will be less need to reread testimony or review the facts.24
8. Alerts trial counsel to develop a particular factual issue.25
9. Allows a juror to become clearer as to a point in the proof.
10. Clarifies confusing issues.
11. Jurors may have difficulty if evidence is presented through one-way communication.26

Arguments “Against” Jury Questions
1. Jurors’ questions will be improper rather than relevant or helpful.
2. Jurors will be thinking of questions and distracted from the testimony.
3. Questions will not reveal juror comprehension of overall trial issues.
4. If any feedback is given by the attorneys it will constitute an impermissible communication between juror and lawyer.
5. Jurors will change roles from fact finder to advocate and may commit to positions early, finding it hard to change.
6. Jurors’ questions will improperly aid the attorneys in presenting the evidence.
7. Juror questions are likely to favor the plaintiff or the prosecution.
8. Questions cannot be controlled through procedural devices.
9. Jurors may blurt out questions, despite instructions to write them down.
10. Jurors’ questioning will be too time consuming.
11. Jurors will be alienated by the attorney who objects to their questions (or by the side they think has objected out of their presence).
12. Jurors will be offended and alienated if their questions are not asked.
13. Jurors will speculate about unasked questions and may conclude that the witness’ testimony is unimportant.
14. Juror questioning will cause deterioration of courtroom decorum.
15. Jurors may take a proprietary interest in a question or give exaggerated emphasis to their own or another juror’s questions.27

Jury Question Procedure
There are essentially three approaches to jury interrogation procedures: the “Excused Jury and Witness” method, the “Attorneys’ Adoption” method, and the “Juror Interrogation” method. Each procedure has been adopted with a view toward preventing abuse of the process by attorneys, jurors and the judge.

“Excused Jury and Witness” Method
1. After conclusion of direct and cross-examination, the trial judge asks the jurors for written questions.
2. The jury and witness leave the courtroom while the judge determines the admissibility of the question.
3. The trial court reads the questions to the lawyers and allows for objections.
4. The jury and witness are brought back into the courtroom.
5. The judge reads the admissible questions to the witness.
6. After the witness answers, the lawyers may ask follow-up questions limited to the subject matter of the jurors’ questions.28

“Attorneys’ Adoption” Method
1. The juror writes the question and hands it to the bailiff, who then passes it to the judge.
2. The judge (often at a break) furnishes copies of the question to the attorneys, so long as, in the judge’s opinion, the question, or some variation, is potentially meritorious (having foundation in law as well as being relevant and material to the case).
3. The juror’s question now belongs to the attorneys, who are free to adopt or handle the question as they deem appropriate and in a manner consistent with their client’s best interest.29

“Juror Interrogation” Method
1. The judge instructs the jury on questioning the witness.
2. The juror, on a form provided by the court, writes the question and hands it to the bailiff, who then passes it to the judge.
3. The judge furnishes the question to the attorneys (often at a side-bar).
4. The attorneys can object to the question, consent to the question, or suggest a modified question.
5. The judge rules on the objection.
6. The judge reads the admissible question to the witness.
7. After the witness answers, the lawyers may ask follow-up questions limited to the subject matter of the juror’s question.

Jury Interrogation in the 269th
District Court
The 269th District Court utilizes the “Juror Interrogation” method, an approach derived from the military courts-martial procedures often used in General and Special Courts-Martial. This method does not promote jurors asking large numbers of questions, but rather encourages the submission of a question only if it will help the juror focus his or her attention on the evidence. Further, this method affords parties great procedural protection in the manner in which questions are asked.30
First, the judge gives a general instruction authorizing jury questions. This instruction comes after the jury is sworn (along with all other instructions), and follows the instruction on note taking. The instruction is:
“During trial, if asking a witness a question will help you focus your attention on the evidence, you will be permitted to submit a question to the witness at the conclusion of questioning by counsel. If your asking a question of the witness will distract your attention from the evidence, you should not submit a question. The court will provide a form for any question a juror wishes to submit. Any question you submit to a witness will require a ruling by the court. The court may allow the question, or may rephrase the question in an allowable legal form. Counsel will then be granted an opportunity to ask follow up questions, and then the case will proceed.
A juror is not required to submit a question to a witness, and should not if it is intended to distract from the presentation of evidence by counsel. A question should be submitted only if it will help you focus your attention on the evidence. Your personal recollection of the evidence takes precedence over any notes or questions you submit in this case.31”
Once the attorneys complete their direct and cross-examination of the witness, the court further instructs the jury as follows: “A juror is not required to submit a question to a witness, and should not if it is intended to distract from the presentation of the evidence of counsel. A question may be submitted only it will help you focus your attention on the evidence.”
The bailiff collects the jury questions written on the forms provided by the court. Usually at a sidebar, or outside the presence of the jury, the attorneys review the questions on the forms and are afforded an opportunity to “Object to,” “Agree to,” or suggest a “Rephrased” question. The court rules on the admissibility of the original question or whether the subsequently “Rephrased” question is meritorious (having foundation in law as well as being relevant and material to the case).
Once the court rules, the judge reads the admissible form of the question to the witness. Once the witness answers, the lawyers may ask follow-up questions limited to the subject matter of the jurors’ questions, beginning with counsel who originally had the witness on direct examination, followed by counsel who had the witness on cross. To limit the possibility of excessive inquiries, the jury is afforded only one opportunity to ask questions of a particular witness. The questions are marked, file stamped, and placed in the court’s official file for review if necessary on appeal.

Conclusion
While the procedure may be considered a controversial jury-reform measure, the proper questioning of witnesses by jurors is unquestionably an innovative approach to developing the truth at trial. Given appropriate instruction and safeguards, there is certainly nothing improper about allowing occasional questions from jurors to be asked of witnesses.
The trial judge should insure that all parties are afforded ample procedural protection via the manner in which jury questions are asked. And while the judge has broad discretion in the proper handling of juror questions, the court must balance the positive value of allowing juror interrogation of witnesses against possible abuses that could occur during trial if juror questioning is allowed.

Endnotes
1. Dees, Tom M., III, Juries: On The Verge Of Extinction? A Discussion Of Jury Reform, 54 SMU L. Rev. 1755, 1774 (2001). 2. U.S. Const. art. I (courts created by legislature). 3. Manual for Courts-Martial (United States), Rules for Courts-Martial 502 (2000 ed.) (“Duties: The members of a court-martial shall determine whether the accused is proved guilty and, if necessary, adjudge a proper sentence, based on the evidence and in accordance with the instructions of the military judge.”). 4. Fazzino v. Guido, 836 S.W.2d 271, 275-76 (Tex.App.—Houston [1st Dist.] 1992, writ denied) (Jury questioning held not erroneous or harmful when: 1) jury submitted written question after both lawyers completed questioning, 2) admissibility of questions determined outside presence of the jury, 3) both lawyers were given the opportunity to object, 4) the questions were read verbatim, and 5) both lawyers were allowed to follow up). 5. Hereinafter “M.R.E.” 6. M.R.E. 614. 7. Id. 8. Id. 9. Manual for Courts-Martial (United States) app. 8 (2000 ed.). 10. Id. 11. Fed. R. Evid. 614. 12. United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir. 1979) (“There was no error committed in allowing the question to be asked, and the procedure employed of requiring jurors to put their questions in writing and clear relevance with the court was not an abuse of the court’s discretion to conduct the trial fairly.”). 13. Id. at 1086. 14. Id. 15. Id., See also United States v. Gonzales, 424 F.2d 1055, 1056 (9th Cir. 1970); United States v. Witt, 215 F.2d 580, 584 (2d Cir. 1954). 16. Tex. R. Evid. 614. 17. Supreme Court of Texas Jury-Reform Task Force, Final Report (September 8, 1997). 18. Fazzino, supra note 5, at 275, 276. 19. Id. The Texas Court relied on this text in Callahan for approval: “There is nothing improper about the practice of allowing occasional questions from jurors to be asked of witnesses. If a juror is unclear as to a point in the proof, it makes good common sense to allow a question to be asked about it. If nothing else, the question should alert trial counsel that a particular factual issue may need more extensive development. Trials exist to develop the truth.” Id. (quoting Callahan, supra note 13, at 1086). 20. Fazzino, supra note 5, at 276. 21. Id. 22. Callahan, supra note 13, at 1086 n.2 (“Although no error occurred in this case, this opinion should not be read as an endorsement of any particular procedure. District courts must in each case balance the positive value of allowing a troubled juror to ask a question against the possible abuses that might occur if juror questioning became extensive.”). 23. Fed. R. Evid. 614 advisory committee’s note. 24. Supreme Court of Texas Jury-Reform Task Force, Final Report (September 8, 1997). 25. Callahan, supra note 13, at 1086 (“If nothing else, the question should alert trial counsel that a particular fact issue may need more extensive development.”) (quoted with approval in Fazzino, supra note 5, at 276). 26. Dees, supra note 2, at 1774 (citing Jeffrey S. Berkowitz, Breaking the Silence: Should Jurors Be Allowed to Question Witnesses During Trial?, 44 Vand. L. Rev. 117, 119 (1991)). 27. Id. 28. Id., see also Judge Ken Curry & Beth Krugler, The Sound of Silence: Are Silent Juries the Best Juries?, 62 Tex. B.J. 441, 442 (May 1999). 29. Dees, supra note 2, at 1774 30. See Manual for Courts-Martial (United States) app. 8 (2000 ed.); Callahan, supra note 13, at 1086; Fazzino, supra note 5, at 275-76. 31. This admonitory instruction language was derived from PCJ 100.11 (2000 edition).


John T. Wooldridge is the Presiding Judge of the 269th District Court of Harris County. Judge Wooldridge also is a Lieutenant Commander, Judge Advocate General’s Corps, United States Naval Reserve. He currently serves with the Appellate Defense Division, Navy-Marine Corps Appellate Review Activity, in Washington, D.C. Steve Frazier, a third-year law student at the University of Houston Law Center, assisted in the preparation of this article. Prior to law school, Frazier was a soldier in the United States Army, 101st Airborne Division, and currently serves in the United States Army Reserves.

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