In most states in the Union, including NY where I primarily practice, the concept of allowing jurors to take notes and even ask questions is gaining in popularity. Most federal courts allow juror note-taking but not juror questioning of witnesses. Having recently tried a lengthy civil trial where the jury was allowed to both take notes and ask questions, I think it is time that the procedure be allowed in all cases – both civil and criminal.
This recent trial was my second foray into the procedure so I was a bit more comfortable with it, but I was at first very worrisome and opposed to the process simply because I was worried about having to object to a juror’s question which might make me appear antagonistic to the juror. But the court in Nassau County Supreme Court (where both trials occurred) used a procedure outlined in the ABA’s American Jury Project Principles for Juries and Jury Trials:
(1) After all sides are done questioning a witness, the court instructs the jurors that if they have any questions of the witness they should write the question down on the paper provided to them for note-taking, fold it over and hand it to the foreman. Neither their names or jury numbers appear on the question (though you can tell who asked a question in general by seeing who is writing the question and handing it up).
(2) The attorneys, the judge and the court reporter retire to chambers where all the questions are read into the record.
(3) All sides are allowed to object to the questions which are held to the same evidentiary standards for admissibility and relevance.
(4) The judge rules on the objections.
(5) The jury and counsel are assembled together again in the courtroom where the jurors are told by the judge which questions will be read. The jury is not told who objected to the questions or why the unread questions will not be read.
(6) The admitted questions are read to the witness and counsel for all sides are free to engage in questioning the witness but only on the answers to the juror’s questions.
(7) The written questions are then discarded at the end of each day.
Juror questioning in this manner has almost no downsides. In this age of rampant attention-deficit disorder and the need to be constantly entertained, the modern juror can be best engaged throughout a long trial or lengthy examination by being allowed to ask questions. It keeps them involved and makes them feel more a part of the system. It also allows the trial lawyer some insight into what is important to the jury and what is their focal point. I would still be wary about changing you trial strategy and theory to accommodate the questions being asked but it is nice to get a quick peek into the mind of a jury. Normally you have to be satisfied with sitting at counsel table sneaking looks to check on body language, sleeping jurors, reactions to testimony etc.
In the two cases I experienced under this system, I found that jurors did not ask as many questions as I expected. The most were around four for a key witness. So while the procedure certainly added time to the trial it was not unwieldy. I was generally pleased to see that the question showed the jurors listening and focusing on the key issues raised by the witnesses.
On jury note-taking, courts have to be careful to instruct jurors that note-taking cannot take the place of the record. Notes must be collected at the end of every day and the jurors must be told that they should only refer to their notes if they are unsure of what somebody said and need to be quickly refreshed on the issue. Another charge that is contained in the NY and other Pattern Jury Instructions on this issue is that the jury is told any discrepancy between what two jurors recall about testimony must be decided by the record and not by juror’s notes. again, note taking can help jurors remain involved and attuned to the case.
One final suggestion for courts and counsel is that it is time that jurors be given the jury instructions on the case in writing for them to have during deliberation. We spend so much time worrying and arguing about the jury charge, only to have it read once to them before deliberations and then again upon request. Some judges can’t help but read it in a monotone fashion that drones on and on and which jurors cannot possibly pay attention to all the way through. Other times, the charge is given at the end of a day or before a break so that judges read it at a pace jurors cannot keep up with. Again, giving them the charge in writing will speed up the trial process by cutting down on read-back and will assure that jurors can give the proper attention and focus to the law. Once again, this procedure is recommended by the ABA in it Principles for Juries.
In the Federal system, most courts are moving towards allowing juror notes but not towards juror questioning of witnesses. In the Ninth Circuit, a 15 member panel devoted to analyzing how to make the Federal Jury System more accessible and juror-friendly listed jurors being allowed to take notes and being given copies of preliminary and final jury instructions as “best practices” to be followed by all courts within the Circuit.
Jurors’ notes and questions allow jurors to be involved and obtain a stronger connection to the case. I intend to ask judges in all my future trials to allow the procedure. Jurors should also be given copies of the instructions on the case even if we only tell them they are going to receive them in writing after they have been read to them. After talking with scores of jurors over the years about their experiences sitting as trial jurors, I can tell you that many of their complaints about the system in general would have been resolved or alleviated by adopting these recommendations. Lets hope courts keep moving in this direction.