It is a practice that divides the courts. There are proponents who argue that by allowing jurors to ask their own questions you get more attentive jurors and better results. But, there are equally thoughtful people who say that by allowing jurors to ask their own questions, you fundamentally change the nature of our legal system from adversarial to inquisitorial — and change the meaning of the burden of proof. It is a debate that will not quickly be resolved.
Thomas D. Waterman , Mark W. Bennett and David C. Waterman (Iowa Supreme Court , U.S. District Court (Northern District of Iowa) and United States Courts – United States Court of Appeals for the Eighth Circuit) have posted A Fresh Look at Jurors Questioning Witnesses: A Review of Eighth Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers (Drake Law Review, Vol. 64, 2-16, Forthcoming) on SSRN.
Here is the abstract:
An Iowa Supreme Court justice, federal district judge, and an Iowa lawyer take a fresh look at the emerging jury trial innovation of jurors asking questions of witnesses (the “practice”). The authors start with the first combined comprehensive analysis of Eighth Circuit and Iowa appellate case law on the practice. This analysis reveals some interesting twists and turns, including substantial differences between the two jurisdictions’ case law and the fact that the Iowa Supreme Court first mentioned the practice more than 130 years ago in 1884. The authors incorporate and discuss prior surveys on the subject but, more importantly, conduct their own extensive and probing empirical study. This study is based on data collected from five online surveys, one each for Iowa trial court judges, federal district judges in the Eighth Circuit, and magistrate judges in the Eighth Circuit, and for two cohorts of Iowa lawyers, all conducted in the fall of 2015. The authors found a dramatic difference in virtually all of the components of the study between lawyers and judges who have experienced the practice (the clear minority) and those that haven’t (the clear majority). The authors conclude that the positive benefits of allowing jurors to question witnesses far outweigh the few negatives and provide a suggested written protocol to encourage judges who have been reluctant to try the practice to take the small leap.