I recently read an article in a publication by my state bar entitled “The Civil Jury Trial: Going . . . Going . . . Gone?”  As a lawyer that enjoys trying cases I found the statistics regarding the reduction of the number of civil cases that are going to trial in my state as compared to 10 years ago very disturbing.  The article points out there is no single reason for the reduction in the number of civil jury trials but discusses there are a number of reasons for the decline.  The article further points out the legitimate concern that over time the reduction in the number of jury trials might lead to fewer lawyers and judges who know how to try and judge cases.  

The right to a jury trial is a right guaranteed by the Constitution of the United States and many state constitutions.  I found the following quote from The Honorable Mark W. Bennett most insightful:  “Inexperience breeds fear, and thus, the fear of going to trial puts added pressure on the downward spiral of fewer trials.”  While it is true that risk associated with the unknown is a cause for anxiety and what some might call fear,  should cases be settled  based on the fear of what a jury might do or should cases be tried based on a reasoned weighing of the risks involved?   I believe many cases are settled out of fear of what a jury might do, instead of being presented to a jury to determine what is - more times than not - a just result.

Technology has created a new avenue for identifying potential juror misconduct.  I read a recent article about a juror who commented on Facebook that it was going to be fun to tell the defendant he was guilty.  The problem was that the evidence had not concluded.  She updated her Facebook status with the comment during a break in the trial.  Whether you are a criminal or civil trial lawyer you know a juror is supposed to wait until they have heard all the evidence before making up their mind.  However, all trial lawyers have heard the jury consultants say that as a practical matter most jurors make up their minds by the end of the opening statement.
 
In the case of this juror, the update was found by a member of the defense lawyer's staff who was reviewing juror Facebook pages when he ran across the update.  When the judge in the case was advised of the update, the judge replaced the Facebooking juror with one of the alternates on the case.
 
Now, was it really misconduct for the juror to post her feelings on Facebook?  Under current standards there is no question that it was.  However, are we putting form over substance?  If most jurors make up their minds by the close of evidence where was the harm?  Was it making up her mind too soon or in telling folks that she had made her decision?  Given what the juror posted, was it a reflection of how the entire jury panel felt and should the defendant not have gotten a mistrial?
 
As a practical matter, you can bet my staff will be reviewing juror Facebook pages during my future trials.

I recently read an article that discussed a growing trend in jury trials:  allowing jurors to ask questions of witnesses.  The article indicates that allowing jurors to ask questions of witnesses while on the stand is a favored trend because it helps jurors feel more like they are a part of the process and likely reduces deliberation time because jurors spend less time in deliberations speculating about unanswered questions.

The article set out a simple process.  Once counsel concludes their examination, the jury is asked by the judge if they have any questions.  Any questions are written down by the jurors and passed to the Court Deputy who hands them to the Judge.  The Judge determines if it is a question that at least on its face appears proper.  The Judge then asks Counsel if they have any objection.  If there is no objection the question is asked.  If there is an objection the Court rules the objection and makes the call whether to ask the question.

Well as fate would have it, I lived the experience of allowing jurors to ask questions in a recent wrongful death trial.  The process followed was very similar to that outlined in the article with the exception the Court at times tried to clarify the question and did allow follow up by Counsel. 

During four days of evidence, there were about a dozen questions. Only two were rejected by the Court as improper.  In the case of an improper question the Court simply did not ask the question without any explanation as to why the question was not asked.  There were no questions asked that were objected to by one side but not the other.

The overall experience was positive especially since the jury returned a defense verdict, but I have to say I am not sure any time was saved during deliberations since it still took the jury six hours to return their verdict.  In sitting and listening to the Court ask the questions posed by the jury it dawned on me how much the Court could, by how it asks the question, rephrases the question or by asking its own follow up question, influence a jury.

For future reference if you are comfortable with your judge I see no reason to oppose allowing the jury to ask questions of witnesses especially since it will likely happen anyway.  I would however, make sure  the process of how the questions will be asked is clear including if there is to be any clarification that Counsel have input in the clarification of the question and that any follow up questions come only from counsel.  The only other suggestion I might offer is that the jury be advised, when they are instructed they can ask questions, that if a question they pose is not asked it is because under the rules of evidence the question cannot be answered or some other general reason why the question was not asked.

If anyone would like to share their experience with jury questions please do, I would like to know how others feel about this apparent growing trend in jury trials.