Jurors' Questions Pose Tricky Balance

Juries are a force with which to be reckoned. Enmeshed in the fabric of our country since its inception as a democracy, juries represent a voice of reason, a judgment of one's peers, an objective resolution of a dispute.

Over the decades, juries have been allowed to speak only through their verdicts. Most jurisdictions allow juries to clarify points of law or instruction during deliberations. A change in practice, though, is occurring in more and more states.

The Ohio Supreme Court upheld a lower court ruling in refusing to reverse a decision on a juror's questioning of a witness even though the appellate, who was convicted on charges of felony assault with a firearm, claimed that the juror questioning was ``inherently prejudicial.'' State v. Fisher, 99 Ohio St. 3d 127, 2003.

Juror questions are now outright banned in just a few states: Georgia, Minnesota, Mississippi, Nebraska and Texas. In finding in favor of the appellee, the Ohio Supreme Court ruled that jurors no longer should be confined to a purely passive role in finding the truth.

``If a juror is unclear as to a point in the proof, it makes good common sense to allow a question to be asked about it,'' Chief Justice Thomas Moyer wrote on behalf of a unanimous court. That court has outlined specific guidelines for judges in that state who choose to allow juror questions.

Since 1954, courts have allowed the practice of juror questioning, analogizing it to a judge's ability to question witnesses and citing the advantages gained in clarifying facts and discovering the truth. United States v. Witt, 215 F.2d 580, 584 (2d Cir.), cert. denied, 348 U.S. 887 (1954).

The Seventh Circuit has said, though, that in determining whether to allow jurors to question witnesses, a court must engage in a balancing test of ``the potential benefit to the jurors against the potential harm to the parties.'' United States v. Feinberg, 89 F.3d 333, 337 (7th Cir.1996).

Illinois faced the issue of a jury seeking questions of a witness during trial in Gonzalez v. Prestress Engineering Corporation, 194 Ill.App.3d 819, 551 N.E.2d 793 (4th Dist.1990). There the court held that neither legislation nor Supreme Court Rules provide for the members of the jury to question witnesses.

The court refused to allow members of the jury to do so, and on appeal, the court simply held, without explanation, that it was not an abuse of discretion to deny it. The general rule is that when a trial court receives a question from the jury during deliberations, the court has a duty to instruct the jury further or to clarify the point of law that is in doubt. The trial court, though, acts in its discretion and may answer the question or choose to ignore it. A seminal case on this issue is People v. Childs, 159 Ill.2d 217, 636 N.E.2d 534 (1994). A civil case dealing with this issue that relied heavily on Childs is Van Winkle v. Owens-Corning Fiberglas Corporation, 291 Ill.App.3d 165, 683 N.E.2d 985 (4th Dist.1997). In both cases, the courts offered some guidelines and found that ``where further instructions would serve no useful purpose or would potentially mislead the jury, when the jury's inquiry involves a question of fact, or if the giving of an answer would cause the court to express an opinion which would likely direct a verdict one way or the other,'' the court, in its discretion, may properly decline to answer the jury's inquiries. Van Winkle, 291 Ill.App.3d at 172, quoting People v. Childs, 159 Ill.2d at 228-29.

In Hojek v. Harkness, 314 Ill.App.3d 831, 733 N.E.2d 356 (1st Dist.2000), the court found that the trial court, indeed, had abused its discretion. There, the jury in the personal injury case sent a question to the judge during deliberations asking, ``Were medical expenses covered by insurance?'' Although lawyers for both sides were immediately summoned, the judge was involved in another trial. Before he was able to address the issue, the jury, which had continued its deliberations, reached a verdict. On appeal, plaintiff argued that the court's failure to answer the jury's question amounted to a denial of a fair trial because it dealt with a substantive legal issue: damages. The court agreed; it reversed and remanded the case for a new trial.

Certainly, it is imperative for jurors to understand the facts of the case before them, and justice will be achieved only through a search for the truth. But, if a lay person is allowed to interject potential biases even out of ignorance, after lawyers have been preparing and familiarizing themselves with the issues for years, problems of fairness may ensue. For instance, what is the impact on a jury should a judge reject a question posed? For strategic or simplistic reasons, an attorney always chooses not to bring up certain points at trial. It also may interfere with the party who carries the burden of proof on a particular issue in unfairly allowing the jury to develop the facts without properly following the rules of evidence and procedure.

The questions, in fact, may prejudice others in the box, particularly if that juror has experience or has been similarly involved in the area of jurors' doubt. What about lawyers and judges who sit as jurors? Some could even steer the litigation in a certain direction. A lot has to do with trusting the lawyers and their ability to present the case. Perhaps it boils down to selecting a jury that is capable of being fair and just.