Criminal Law

Crim. Law Journal Summer 2017, Vol. 17, Issue 2


By Christopher M. Honigsberg*

With the overstimulation of today’s population, it is difficult to keep jurors actively engaged during trial. As attorneys, we engage jurors with power point, video and other media. We may also engage jurors by allowing jurors to submit questions for a witness. There are two schools of thought when it comes to encouraging jurors to ask questions during a trial.

Some attorneys do not like jurors asking questions. Those attorneys feel the jurors should take a more passive role and they do not like the idea of jurors acting as advocates in a case. The attorney may fear that a juror will sympathize with a defendant and try to help that defendant, especially if the juror feels the defense attorney is not doing a good job. There is also the concern that a juror will ask a question with an answer that is favorable to the other side, or even ask a question the attorney deliberately did not ask the witness. Some attorneys believe when jurors ask questions it helps the prosecutor.

Other attorneys like jurors asking questions. Those attorneys feel that juror questions help to pinpoint issues or areas of concern for the jury. Juror questions can help an attorney with areas of focus for closing argument. A juror question may cover an area the attorney did not think to address or forgot to address with a witness. If a juror submits a question that is objectionable and the judge does not ask that question, it demonstrates to the jury that there is evidence they will not receive. Arguably, this can be very important in certain cases where the judge does not permit questioning about a particular topic. Jurors may become annoyed or feel the attorney is leaving holes in the evidence because the topic was not addressed. However, once the juror question is submitted and not asked, the juror will understand what is happening and be less likely to find that "hole" in the evidence equates to reasonable doubt.

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