Date of this Version
American courts have rediscovered what was familiar at common law. A majority of modern courts now sanction the practice of permitting jurors to submit questions during trial. A procedure that permits jurors to submit questions is consistent with the view that juror questions can promote juror understanding of the evidence and fits with other jury innovations, like note taking and written jury instructions, that aim at optimizing juror comprehension and recall. Nonetheless, the practice of permitting juror questions has not received unanimous endorsement and adoption. Even in jurisdictions that authorize juror questions during trial, the ultimate decision as to whether or not to permit them is generally left to the discretion of the trial court, and it is unclear how pervasive the practice actually is across jurisdictions in which juror questions are authorized. Some judges have been reluctant to permit juror questions because of concerns that jurors will frequently submit inadmissible questions that the judge cannot answer or allow a witness to address, that the jurors may be offended when their questions are not answered, and that jurors may come up with their own answers that will unfairly prejudice one party or the other. A unique opportunity allowed us to examine the frequency and nature of jurors’ unanswered questions and to assess how jurors responded. We collected all of the questions that jurors submitted during 50 civil trials in Arizona, where jurors are regularly permitted to submit questions during trial. A distinctive feature of the research is that we were able not only to identify the questions that the judge declined to allow, but also to observe juror reactions during trial and deliberations as the jurors learned that their question would not be allowed. This examination both addresses the concerns raised about unanswered juror questions and gives judges who have not yet permitted juror questions a preview of the kind of questions jurors are likely to submit that judges may not be able to allow witnesses to answer. Before turning to this analysis of the unanswered questions, we briefly review the claimed advantages and disadvantages of permitting juror questions in light of the available evidence.