By Dr. Ken Broda-Bahm:
Sometimes gut feelings are at odds with the research. For example, some attorneys and judges have a gut feeling that allowing jurors to submit questions to witnesses will take an inordinate amount of time, introduce irrelevant issues, or turn jurors from neutrals into advocates. Those fears, either tacit or overt, explain why juror questions still tend to be the exception rather than the rule in U.S. courts. As a potential feature in civil and criminal cases in both state and federal courts, juror questions are often allowed, but generally a matter of judicial discretion. That discretion, in turn, is often based on whether the parties request and agree on them or not. Data from 2007 (yes, a little dated, but probably the best available) shows that juror questions are only used in-between one-in-ten and one-in-seven American trials.
The relative scarcity, along with a comprehensive review of the existing data on juror questions, is the subject of a new research report written by Mitchell Frank, Associate Professor of Law at Barry University School of Law (Frank, 2014). The report examines the effects of juror questions on trials, and whether their perceived advantages and disadvantages are actually realized. The 66-page report draws from a variety of sources including a number of studies conducted by Steven Penrod and Larry Heuer in the late 80s through mid-90s, the Colorado Jury Reform Pilot Project in 2000 and 2001, a state-by-state survey conducted by the National Center for State Courts in 2007, and the Ninth Judicial Circuit Survey on Juror Questioning in 2013. The bottom line from Frank's literature review: "Although the purported advantages were somewhat supported by this research, the findings were overwhelmingly contrary to the fears or beliefs that jury questioning would cause any of the examined 'disadvantages.'" This post will review the conclusions, but for the full detail on the research results, the article is also worth reading on its own, worth citing in a motion, and it is available for download free at the link above.