Criminal trials often include damaging questions by prosecutors where the damage of the defense’s objecting before the jury can be even worse.

What about the damage caused in jurisdictions that allow jurors to submit proposed questions to witnesses in criminal trials? On the one hand, the questions might enlighten the parties about concerns that the jury will address during deliberations whether or not the questions are asked to the juror. On the other hand, jurors who are not familiar with the rules of evidence will end up submitting proposed questions that would never be allowed to be asked by a prosecutor.

If the judge does not ask a juror’s proposed question to a witness, will the jury merely blame the judge for not asking it, or will jurors attempt to figure out whether the defense or prosecutor objected, and take that out against the apparently objecting party? If the parties discuss the juror’s witness question at the bench, jurors might make up their minds from each lawyers’ bodily and facial language about who to blame for the question’s not being asked by the judge to the witness.

Two days ago, Maryland’s Court of Special Appeals affirmed a first degree murder conviction after the judge twice asked juror questions to a witness without first alerting the parties that it was a juror question, and without giving the parties an advanced opportunity to object to or seek to modify the question. Handy v. Maryland ___ Md. App. ___ (Oct. 26, 2011). Handy says that the defense did not preserve for appeal the trial judge’s failure to share the jurors’ proposed questions to witnesses before asking the questions to the witnesses. (The judge sad at the end of each question that it was a juror question.) Handy also says that the questions did not prejudice the defense, because the answers elicited no new evidence at trial.

Handy gives a rundown of various jurisdictions in the United States that permit and do not permit jurors to propose questions during criminal trials. Handy leaves juror questions during criminal trials to the sound discretion of the trial judge. Handy gives the following roadmap to trial judges considering allowing juror questions to witnesses during trial: 

It is paramount that jurors not be permitted to be partisans for either party. While we assign the process to the discretion of the trial court, we caution that juror questioning is a procedure that may be best left to the more complex or protracted litigation, as opposed to garden variety, everyday trials. In reaching that conclusion we do not suggest that some trials are less significant than others; indeed, to the parties there is no such event as a little case in the circuit court.

In the exercise of sound discretion, trial courts should develop, and explain, a detailed procedure for juror questioning. At minimum, the court’s intent to engage the process should be explained to counsel in advance and allow counsels’ comments or concerns. The process should be explained to the seated jury with a caution that questions, if submitted, must be offered while the witness remains on the stand. The court should also explain to the jury that not all questions will be asked and, further, that questions are subject to objection by counsel and must seek only evidence admissible under the rules of evidence. Questions must be shared with counsel before being asked, giving counsel the opportunity to pose objections. When a juror’s question is asked, counsel must be afforded the opportunity to ask follow-up questions. Finally, in the exercise of discretion, the court may terminate the process should there be any appearance of impropriety or partisanship.

Handy.

Perhaps with few exceptions, I will object, pretrial, against jurors submitting proposed questions to be asked to witnesses. Certainly, I am mindful of the risks of missing issues during trial that will be covered in the jury room anyway. However, ordinarily it seems to be all the more dangerous to permit proposed jury questions to opposing witnesses whose testimony is already dangerous to my client.