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1 PJI 8 | Third Circuit (US)
HB-PJI-CA03-01S0800 Download


Option 1:

Only the lawyers and I are allowed to ask questions of witnesses. You are not permitted to ask questions of witnesses.

Option 2:

You will have the opportunity to ask questions of the witnesses in writing. When a witness has been examined and cross-examined by counsel, and after I ask any clarifying questions of the witness, I will ask whether any juror has any further clarifying question for the witness.

If so, you will write your question on a piece of paper, and hand it to my Deputy Clerk. Do not discuss your question with any other juror. I will review your question with counsel at sidebar and determine whether the question is appropriate under the rules of evidence. If so, I will ask your question, though I might put it in my own words. If the question is not permitted by the rules of evidence, it will not be asked, and you should not draw any conclusions about the fact that your question was not asked. Following your questions, if any, the attorneys may ask additional questions. If I do ask your question you should not give the answer to it any greater weight than you would give to any other testimony.

COMMENT The trial judge has discretion to permit or to disallow questions from the jury. Option 1 is for judges who want explicitly to disallow jury questions. See Ninth Circuit 1.15 (comment) (“Whether to allow jurors to ask questions is a subject debated among judges.”). Option 2 (derived from the instruction given by District Judges in Camden) is for judges who want to tell jurors explicitly that they may submit questions to be asked of witnesses. Some judges, however, may not want to give an explicit instruction allowing or disallowing jury questions, but may wish instead to wait and see if jurors inquire about asking questions, and then rule on whether to allow questions.

In United States v. Hernandez, 176 F.3d 719, 723 (3d Cir. 1999), the Third Circuit “approved of the practice [of permitting juror questions] so long as it is done in a manner that insures the fairness of the proceedings, the primacy of the court's stewardship, and the rights of the accused.” The court in Hernandez also held that, if the trial judge allows jury questions, the court should follow a procedure for questions to prevent jury misconduct. Id. at 726 (warning that “the judge should ask any juror-generated questions, and he or she should do so only after allowing attorneys to raise any objection out of the hearing of the jury”). The court also noted that “properly structured juror questioning in a civil trial poses even fewer” risks than in a criminal trial. Id.

The Third Circuit recognized in Hernandez that there are arguments for and against allowing jurors to submit questions for witnesses. The best argument in favor of jury questioning is that it helps jurors clarify factual confusions and understand as much of the facts and issues as possible so that they can reach an appropriate verdict. On the other hand, allowing jurors to ask questions may risk turning them into advocates and compromising their neutrality. See United States v. Bush, 47 F.3d 511 (2d Cir. 1995). In this regard, it is not appropriate to allow jurors to ask questions that appear to suggest a view about the merits of the case.

(Last Updated October 2017)

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