By Dr. Ken Broda-Bahm:
The potential ability of jurors to pose a question to a witness by submitting that question first to a judge is a trial feature that always comes up in discussions of jury trial innovations and experimentation. But at a certain point, we really have to stop calling it an "innovation" or an experiment. The practice isn't really new (it has been used for decades) or untested (it has extensive social science behind it that I've written of before). Still, in practice in most venues, its use is the exception rather than the rule. The sluggish pace at which this idea has caught on, as well as continuing doubts over the effects, make the practice of juror questions a poster child for the law's problem of tradition mattering more than effectiveness.
A new study (Waterman, Bennett, & Waterman, 2016) adds to the weighty evidence in favor of juror questions, with a new twist in finding that those who distrust juror questioning tend to have had no experience with it, while those who have tried it, generally like it. The forthcoming article from Drake Law Review (now available as a download at Social Science Research Network) is authored, not by academics, but by Iowa Supreme Court Justice Thomas Waterman, U.S. District Court (Iowa) Judge Mark Bennett, and U.S. Court of Appeals Judicial Law Clerk David Waterman. Their goal was to put the final nail in the argument. The 64 page article provides an extensive review of law as well as prior social science research, but also includes results of their own multi-venue study of judge and attorney experience and reaction to the juror questioning process. Based on an online survey of 166 state and federal trial judges, and 135 Iowa litigators, the authors find that most had never used juror questions, but also note a dramatic difference between the judges and attorneys who have used the practice, and the judges and attorneys who haven't. "Our survey data reflect deep and pervasive perceptions of disfavor and apprehension among most, but not all, judges and lawyers who have never experienced the practice," they write, "The inverse is also true: Most, but not all judges and lawyers who have experienced the practice, hold a much more favorable view of it." This post will share some of the more specific findings and implications.