When Jurors Talk Back

Editor's Note: Steve Chapman is on vacation. The following column was originally published in May 2006.

Jurors occupy an unusual position: They are expected to make vital decisions without being allowed to ask questions. While a trial is going on, courtroom spectators may hear from lawyers, judges, witnesses, aggrieved parties, defendants and even court stenographers. But the people in the jury box, who hold the final power over the outcome, are required to sit as mute as the furniture.

In the past few years, some courts have tried a novel idea: letting jurors actively participate instead of serving as courtroom ornamentation. The federal courts in the 7th Circuit, encompassing Illinois, Indiana and Wisconsin, conducted an experiment in which members of the jury sitting in civil trials were allowed to submit questions for anyone testifying. From all the evidence, justice was well served.

With its formal rituals and solemn atmosphere, the trial system often gives the impression that it didn't evolve like other human institutions, but was handed down from heaven in unalterable form. Any fiddling with it raises fears we may be tugging on a thread that will cause the whole carpet to unravel.

But even the best rug may need minor renovation every century or so. Anyway, allowing jurors to ask questions is a revival of an old practice, which was eliminated only as lawyers became more important and the adversarial system became more rigid. As it happens, there is nothing about it that conflicts with the functioning or purpose of a trial.

Some states have already made the change. Arizona, for example, embraced it in criminal as well as civil trials as part of a 1995 package of reforms that included such no-brainers as letting jurors take notes and consult them. Indiana, Colorado and Florida are among the other pioneers. But this was the first time the innovation has been tried extensively in the federal system.

The presiding judge would typically inform the panelists of this option at the beginning of the trial and then invite questions when the lawyers were done with each witness. Questions had to be given in writing to the judge, who would confer with the attorneys and decide if they were permissible.

If so, the judge would read them to the witness. The lawyers could then ask follow-up questions.

The change held out the promise of making things better for the jurors — who, after all, make the greatest sacrifices but often get the least consideration. Letting them ask questions is a way of sustaining their interest and maximizing their comprehension. Denying them the option, by contrast, is an invitation to passivity and boredom.

Still, jurors exist for the benefit of the trial system, not the other way around. So the value of this innovation rests on whether it improves the processes of justice.

On that point, U.S. District Judge Matthew Kennelly has a strong opinion. "When I was in private practice, I was against it," he says. The initial reaction among lawyers is negative, in his view, because "you like to do things the way you've always done them." But his experience as a judge, he says, "has been completely positive. I intend to use it in every civil case that I have."

The benefit for jurors, he thinks, is that it lets them clarify points they didn't understand. But it also helps attorneys: "It gives them an insight into the jury that they wouldn't get." They can then tweak their presentations to address points they may have overlooked. It's a bit like letting theater directors have a glimpse of the reviews before the show opens.

Lawyers are paid to disagree with each other, but here, they have trouble rising to the challenge. A survey of participants in the 7th Circuit program found that two-thirds of attorneys said the practice improved jurors' understanding; 48 percent said it enhanced fairness, with only 8 percent disagreeing.

Half of the lawyers said it increased their own satisfaction with the trial, with only 17 percent dissatisfied. Among losing lawyers, for some reason, the level of approval was even higher. Judges were especially enthusiastic, with 94 percent concluding that the change helped jurors make sense of the issues before them.

Better understanding will yield more informed deliberations, which in turn should produce sounder verdicts. In daily life, we all know that if you want to arrive at the truth, you need to ask some questions along the way. Among all the purposes of a trial, establishing the truth is not the least important.

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