Maintaining the Adversarial System: The Practice of Allowing Jurors to Question Witnesses during Trial

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I. INTRODUCTION

A defendant sits in the witness stand undergoing examination by his attorney. He is accused of armed robbery, among other criminal IMAGE FORMULA4

acts. During the course of the defendant's testimony, a juror blurts out that he has a question. The judge tells the juror to write his question down and advises the juror that he will be able to ask his question upon completion of the attorneys' examinations. When the juror's question is finally asked, the judge indicates to the defendant's attorney that the attorney should address the matter raised by the juror on reexamination. During the reexamination, the attorney turns to the jury box and directly addresses the individual juror, inquiring whether the juror's question had been sufficiently answered. At this point, several other jurors, feeling released from their silence, also begin questioning the witness. The judge or attorneys occasionally rephrase the questions, but often the witness answers the jurors directly. Neither party objects to the jurors' questions at the time of trial.

The members of the jury in the trial discussed above appear to have acted as inquisitors. Instead of listening passively to the presentation of evidence from the opposing parties, they pose their own questions to the defendant. In an inquisitorial system of justice, used in many civil law countries, judges or juries have the primary responsibility for gathering and evaluating evidence.' These fact finders actively seek evidence, such that the parties become mere objects of inquiry rather than the directors of the trial.2 In contrast to the inquisitorial system, the United States' adversarial system assigns the primary responsibility for the development and presentation of evidence to the parties themselves.3 In the adversarial system, an impartial fact finder decides a case based on the conflicting evidence presented by opposing parties.4 The depiction above, however, describes not a trial governed by the inquisitorial system of justice, but rather a recent trial in the Eastern District of New York.5

Commentators and courts are currently questioning the efficacy of our jury systems Some view the system as too rigid and IMAGE FORMULA7

unreliable a truth-finding body.7 These critics suggest altering aspects of the jury system, and most recommend alterations that encourage a more active and involved jury.8 One such proposed alteration9 would permit the jury to pose questions to witnesses during trial.10 Many jurisdictions are either considering or are currently experimenting with the use of juror questioning."

Presently, the propriety of juror questioning is a widely contested matter.12 The debate also focuses on the necessary safeguards that should be required if the practice is ultimately deemed proper.13 There are few guidelines available to assist trial courts in implementing the practice.14 Because the factors leading courts to find prejudice in a case are not clearly defined, trial courts are often left to their own discretion.15

To understand the issue of juror questioning, it is best to begin with a historical overview of the jury system and the adversarial process. The consequences of giving the jury a more active role can only be analyzed effectively with this history in mind. Part II of this Note will discuss the history of the jury system and provide an overview of the merits of the current adversarial system. Part III will examine the practice of juror questioning and its impact on the adversarial system. Part III also examines the history of jury questioning and analyzes the advantages and disadvantages of the practice. It looks at the practice's current status in jurisdictions across IMAGE FORMULA10

the country and sets forth current views about the appropriateness of the practice in general. …

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