JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

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2014 U. Ill. L. Rev. 271

University of Illinois Law Review

2014

Note

JUROR QUESTIONING OF WITNESSES IN CRIMINAL TRIALS: THE “JURY’S

STILL OUT” IN ILLINOIS

Kristen L. Sweata1

Over the last couple of centuries, the American jury has devolved from an active interrogator to

a passive observer. Various reform movements have attempted to restore the jury’s active role.

Most recently, Illinois passed Illinois Supreme Court Rule 243. This rule allows members of the

jury to ask witnesses questions. The hope is that by allowing jurors to ask questions, they will

become more engaged and more deeply comprehend what is occurring in the trial. Additionally,

it will make for a more informed jury, raising the chances that a fair verdict is returned.

Rule 243, however, only applies in civil trials. Jurors cannot ask questions of witnesses in

criminal trials. This Note argues that Rule 243 should expand to allow jurors to ask witnesses

questions in criminal trials. In criminal trials, the most basic American interests of freedom and

justice are at stake. Allowing jurors to ask questions of witnesses is paramount to preserving

these interests.

This Note begins by looking at the history of juror questioning in America, as well as in Illinois,

specifically the events leading up to the passage of Rule 243. Additionally, it presents the

approaches of other jurisdictions to juror questioning. There are three types of approaches: (1)

express prohibition of jury questions; (2) no express prohibition but lack of implementation of

the practice; (3) allowance of jury questions within specific guidelines.

While there are noted benefits and drawbacks to allowing jurors to ask questions of witnesses,

this Note argues that the interests of justice are best served by allowing these questions in both

civil and criminal trials. It concludes by proposing a rule similarly worded to Rule 243 but

including guidelines particular to criminal trials.

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*272 Table of Contents

I. Introduction

272

II. Background

274

A. History of Juror Questioning

274

B. Juror Questioning in Illinois and Supreme Court Rule 243

277

1. Jurisdictions That Expressly Prohibit Questions

280

2. Jurisdictions That Do Not Expressly Prohibit Questions but Where Trial Judges Might Not Typically Employ the

282

Practice

3. Jurisdictions That Allow Questions in Some Form and Within Specified Guidelines

285

III. Analysis

286

A. Benefits of Juror Questioning

286

1. In General

286

2. Specifically in Criminal Trials

289

B. Concerns Associated with Juror Questioning

289

1. In General

289

2. Specifically in Criminal Trials

291

C. The Powers of Judges Versus the Powers of Juries

293

D. Procedural Safeguards

295

E. Opinions of Illinois’s Current Legal Leaders and Community

297

IV. Recommendation

302

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V. Conclusion

308

I. Introduction

It was primetime, Sunday evening, and viewers across the country were glued to their television

sets watching the newest episode of television’s hit legal drama, The Good Wife, set in Cook

County, Chicago, Illinois. Suddenly, they heard fictional star Will Gardner say, “I’m sure the

jury will have questions about that.”1 Of course, this statement may not seem all that unusual;

naturally, members of a jury always have questions. Yet, as the television audience soon saw,

the writers of The Good Wife were capitalizing on the potential drama created by an innovative

legal concept that has recently affected Illinois courts: the passage of a new law by the Illinois

Supreme Court that allows jurors to conduct their own questioning of civil trial witnesses. This

particular Good Wife episode, entitled “And the Law Won,” portrayed at first what seemed to be

a typical courtroom trial.2 During the trial, however, the presiding judge was suddenly handed a

note: a question from a juror, that when read, changed the course of the entire judicial

proceeding. Likewise, many of *273 the other jurors began offering their own clever questions.3

As the scene unfolded, and juror after juror posited individual queries, the episode craftily

highlighted the progressive impact of the new Illinois rule.

The legal effects of Illinois’s new courtroom rule, which is known among the Illinois legal

world as Supreme Court Rule 243 (“Rule 243”), clearly made for great “TV drama.” What many

television viewers that night probably did not realize, though, is that Illinois state courts only

recently began implementing this groundbreaking rule in civil trials. Juror questioning of

witnesses in criminal trials, however, is still not explicitly allowed in Illinois. This Note will

argue that it should be.

Moreover, many of the episode’s viewers that night most certainly did not realize that The Good

Wife’s portrayal of the rule’s function was a large-scale dramatization of a concept that plays

out much differently in real courtrooms. This episode of The Good Wife drew attention to the

innovative practice of juror questioning, but at the same time it also managed to significantly

misconstrue the concept. Interestingly, the episode’s portrayal of the new rule sheds light on the

general confusion and misunderstanding that people have concerning courtroom rules that allow

juror questions. For instance, the method the juror members used to submit questions in this

episode is not the way in which such questions are actually submitted. Unfortunately, the

thematic Hollywood interpretation of the Illinois juror questioning rule made the practice seem

so radical that many viewers likely were unable to grasp the true value that juror questioning of

witnesses can add to trials in general, let alone to criminal trials specifically.

So, “to ask or not to ask?”4 And if “to ask,” how to ask?--those are the questions this Note

presents. As stated, the Illinois Supreme Court answered the question of whether jurors should

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be allowed to ask questions of witnesses during some trials with an emphatic “yes” when it

passed Rule 243 in July 2012.5 Yet, the caveat in passing this potentially controversial rule was

that juror questioning of witnesses in Illinois is admissible only in civil trials--and at that, only

subject to the trial judge’s discretion.6 Thus, whether “to ask” remains the question for the

myriad of courtroom situations involving criminal cases that occur within the State of Illinois.

Admittedly, the practice of allowing jurors to question witnesses has sparked lengthy

controversy and lively debate for quite some time, especially on a national level. The topic is an

important issue for the public, which is most certainly why even Hollywood is taking notice of

juror questioning and capitalizing on its relevance in trial procedures. While some states have

embraced the practice, others have gone so far as actually *274 outlawing juror questioning

entirely.7 Illinois has remained open to juror questioning of witnesses and the belief that it might

provide significant value in determining the outcomes of trials. Until the recent adoption of Rule

243, Illinois had neither explicitly prohibited nor approved of the practice; its usage in state

trials was, in reality, quite rare.8 With the passage of Rule 243, Illinois has now taken steps to

embrace the practice. Because Rule 243 only allows the jury to ask witnesses questions during

civil trials, however, there remains much uncertainty and inconsistency in the Rule’s

implementation. Moreover, although the main purpose of allowing jurors to question witnesses

is to strengthen the trier of fact’s ability to accurately determine the truth,9 by limiting Rule

243’s usage to civil trials only, the language of the new statute fails to apply to the very

situations which are arguably most in need of truth-finding: criminal trials. Indeed, in criminal

trials the most basic American interests of freedom and justice for all are at stake.

Section II of this Note provides a background of juror questioning and discusses the current rule

in Illinois. Next, Section II examines current approaches to juror questioning in other

jurisdictions. Section III analyzes the advantages and disadvantages of allowing juror questions

in criminal trials and discusses the opinions of current legal experts in Illinois on the issue of

juror questioning. Finally, Section IV argues that the Illinois Supreme Court should either create

a separate juror questioning rule for criminal trials or amend Rule 243 by extending the statute

to allow jurors to ask questions of witnesses not only in civil trials, but in criminal trials as well.

Furthermore, Section IV recommends that courts implement greater procedural safeguards to

avoid confusion and to ensure the protection of defendants’ Sixth Amendment rights.

II. Background

A. History of Juror Questioning

Although the push for allowing jurors to question trial witnesses seems to be a recent trend in

some jurisdictions, juror questioning of witnesses *275 is actually not a modern-day concept.10

In fact, the practice can be traced to eighteenth-century England, when “open, viva voce

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examination by the litigants (as well as the judge and jury) was said to be the best way to ‘sift

out the truth.”’11 Not only was the practice in existence during this time, but more than that, the

adjudicatory proceedings in those days were specifically arranged so that jurors genuinely

believed it was their duty to investigate any and all questions of fact to be tried.12 Moreover,

instances of jurors asking witnesses questions were even seen in criminal trials in the English

courts as far back as the 1560s, where “the witnesses and defendant were subject to disputatious

questioning by the judge, jury, and each other.”13

Given that the United States modeled its judicial process after the English court system,14 it is no

surprise that juror questioning also existed in the early history of U.S. courts. The United States

first saw the appearance of juror questioning in 1825,15 and the practice continued into the

1900s.16 By 1895, juror questioning had become an approved practice, and by 1926, at least one

court had established formal procedures for juror questioning.17 In federal courts, the questioning

of witnesses by jurors dates back to at least 1954.18 Notably, in its history, the U.S. Supreme

Court consistently has denied certiorari to cases involving questions on the constitutionality and

procedural implementation of juror questioning of witnesses.19

Unlike today, individuals accused of criminal activity at common law were only afforded

counsel if there existed some point of law that *276 required debating.20 Otherwise, defendants

were subject to the control of the judge and the jury without representation to guide them

throughout the legal process. Very few procedural rules existed, and both the judge and the jury

were able to ask questions to witnesses.21 Although today most courts allowing the practice

agree that juror questions must adhere to strict requirements and procedural safeguards, such

was not the case in earlier times. The earliest type of juror questioning took the form of a “juror

outburst.”22 A “juror outburst” consisted of a member of the jury posing an unsolicited question

to a witness during the testimonial examination of that witness at trial.23 Understandably, such a

scenario could produce fear and resistance among present-day attorneys and judges who strive

to maintain control over a lawsuit and its procedural aspects.

Eventually, both society and the legal system began to place more emphasis on defendants’

rights, and particularly on a defendant’s right to a fair trial.24 As the adversarial nature of the

court system evolved, defendants started using defense attorneys who began taking more control

over the trial and the process of presenting evidence.25 Over time, as the lawyers representing

each side gained more control of the proceedings, jurors became more and more silent until

finally the jury transformed from its original role as active interrogator into passive observer.26

Yet, as time went on, some members of the American public became frustrated and disillusioned

with the passive jury system.27 In fact, in some states, citizens were so disenchanted with the jury

system that they refused to perform their civic responsibilities when called for jury duty.28 As a

result, various reform movements began in an attempt to improve the American jury system and

restore its value.29 One of these *277 reforms still present today includes the reintroduction of

juror questioning into trials30 in hopes that the practice will lead to deeper comprehension by

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jurors and that it will cause jurors to be more engaged during trial.31 In turn, the role of the jury

ideally will be strengthened as an integral part of trial.32

B. Juror Questioning in Illinois and Supreme Court Rule 243

Slowly, more and more jurisdictions have started to reimplement juror questioning of witnesses

into their adversarial process.33 In July 2012, Illinois became one of the newest additions to the

group of states that explicitly allow the practice of juror questioning in some form. On April 3,

2012, the Illinois Supreme Court officially adopted Rule 243.34 Shortly thereafter, on July 1,

2012, Rule 243 became effective, placing within the discretion of Illinois trial courts the ability

to allow jurors in civil trials to submit written questions to trial witnesses.35

Before July 2012, most Illinois courts had left the topic of juror questioning largely untouched.

While allowing the jury to ask questions to witnesses was not explicitly prohibited, the practice

was rarely exercised.36 The approach started to gain more popularity in recent years, *278

however, after certain legal leaders within Illinois undertook the initiative to implement juror

questioning into various trials. Specifically, in 1986, the Honorable Warren D. Wolfson, a Cook

County trial judge at the time, introduced the practice of juror questioning into several of his

trials. The following year, he published an article in the Chicago Bar Association Record

detailing his experiences.37 His forward-thinking article revealed both benefits and drawbacks

that can result from allowing jurors to ask their own questions to witnesses.38 Ultimately, Judge

Wolfson concluded that allowing jurors to question witnesses “fundamentally improve[s] the

trial process.”39

Shortly afterwards, in 1990, Judge Wolfson presided over a Cook County trial where he once

again asked both parties whether they would be interested in allowing jurors to ask questions.40

A Springfield lawyer named Stephen Kaufmann was one of the attorneys in the case who

represented the party, Central Illinois Public Service Co.41 Although Kaufmann would later

prove to be extremely influential in the Illinois movement towards allowing juror questioning,

this particular trial in 1990 was Kaufmann’s first real experience observing juror questioning in

practice.42 Kaufmann said he was “intrigued by the process.”43

Despite the pioneering efforts of Judge Wolfson that began over twenty years ago to introduce

juror questioning in Illinois, many judges remained reluctant to follow his lead.44 In fact, 2004

and 2006 studies by the National Center for State Courts (NCSC) revealed that many judges in

Illinois actually mistakenly believed that they were expressly prohibited from allowing jurors to

ask questions, although they could not identify which rule they thought prohibited the practice.45

That perception began to change in August 2010, when Kaufmann, who is currently a partner in

the Springfield office of HeplerBroom, LLC, proposed a juror-questioning rule to the Rules

Committee for the Illinois Supreme Court.46 His proposed rule specifically allowed jurors to ask

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questions of witnesses in civil trials.47 During that same time, Kaufmann also published an

article on juror questioning with Springfield attorney *279 Michael P. Murphy in the Illinois Bar

Journal to further advocate for the addition of such a rule.48 Then, on May 20, 2011, the

18-member Supreme Court Rules Committee held a public hearing in Chicago, where

Kaufmann testified in favor of juror questioning.49 Ultimately, Kaufmann’s proposal would

become Rule 243.

Even with the passage of Rule 243, it is likely that many Illinois judges will refrain from

experimenting with the practice. As explained in the Committee Comments to Rule 243,50 juror

questioning is only permissible at the discretion of the judge, which means that despite the

desires of the parties, jurors only will be allowed to ask questions when the judge ultimately

decides they should be able to in a given case.51 Moreover, many Illinois judges and attorneys

remain hesitant to implement what they perceive to be such a radical change in the course of

normal trial procedure, due in large part to the fact that there simply have not yet been many

trials in which courts have used juror questioning.52

C. Overview of Modern Jurisdictional Approaches to Juror Questioning

Importantly, Illinois is not the only state currently addressing juror questioning. During the past

quarter century, a national debate has developed among American courts, commentators, and

legal scholars concerning whether they should once again allow jurors to ask questions of

witnesses during trials.53 Although the enactment of Illinois’s juror questioning rule occurred

only very recently, other states have been passing these types of courtroom rules for a while.54

Most state courts have actually already discussed the issue of juror questioning in some

manner.55 In fact, as progressive as Rule 243 might initially seem, “[o]ver half of all states and

all federal circuits [already] have such a rule allowing jurors to submit written questions for

witnesses.”56

*280 For the most part, state courts tend to be more accepting of juror questioning than federal

courts,57 although it is crucial to recognize that all federal courts permit the practice.58 Generally,

the varying jurisdictional approaches to juror questioning can be categorized into three different

groups: (1) jurisdictions “that expressly prohibit questions,” (2) jurisdictions “that do not

prohibit questions but where trial judges [might] not typically employ the practice,” and (3)

jurisdictions “that allow questions in some form and within specified guidelines.”59 The

following is a representative overview of these jurisdictions and a discussion of their differing

perspectives on jury questioning.

1. Jurisdictions That Expressly Prohibit Questions

In reality, only a very small number of states expressly forbid the practice of allowing jurors to

question witnesses. Nevertheless, the rules and case law from these states are important in

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understanding the various arguments that critics advance against juror questioning. In terms of

outlawing juror questioning, only two states have disallowed the practice entirely in trial

settings.60 Indeed, the courts of these two states, Nebraska and Mississippi, have held that juror

questioning of witnesses is not permissible in criminal trials or in civil trials.61

In fact, over two decades ago the Supreme Court of Nebraska first issued its state ban on juror

questions.62 In Nebraska v. Zima, the Nebraskan Supreme Court prohibited juror questioning of

witnesses throughout all trial courts in that state.63 Reasoning that “due process requires a fair

trial before a fair and impartial jury,” the court stated that the judicial process is most effectively

served when counsel elicits evidence that “is heard, evaluated, and acted upon by jurors who

have no investment in obtaining answers to the questions they have posed.”64 The court

emphasized its fear that the practice of juror questioning might *281 transform jurors from

unprejudiced individuals into “advocates and possible antagonists of the witnesses.”65

Influenced by this apprehension, the court expressed its concern that juror questioning might not

actually lend itself to a “fairer or more reliable truth-seeking procedure.”66 Interestingly,

however, in his concurring opinion, Judge Shanahan considered the Nebraska Evidence Rules as

well as the rules of other jurisdictions and, as a result, specifically objected to any rule that

would “flatly prohibit[ ] jurors from ever asking questions . . . .”67 In doing so, he remarked that

“an absolutely prohibitive rule against all questions from jurors is as incomprehensible as it is

imprudent.”68

In 1998, just seven years after Nebraska v. Zima, Mississippi first announced its broad

prohibition on juror questioning in the case of Wharton v. State.69 Stating that “[t]he most

obvious problem with allowing jurors to question witnesses is the unfamiliarity of the jurors

with the rules of evidence,” the Mississippi Supreme Court ruled that “juror interrogation [was]

no longer to be left to the discretion of the trial court, but rather is a practice that is condemned

and outright forbidden . . . .”70 Nevertheless, while the Mississippi Court’s fear concerning

jurors’ unfamiliarity with the law is a valid concern, studies have found that even though most

jurors have no knowledge of the rules of evidence, “they still [do] not ask inappropriate [or

frivolous] questions.”71

While Mississippi and Nebraska are the only two states forbidding juror questioning entirely,

only four states explicitly prohibit the practice of jury questions in all criminal contexts.72 These

four states include Minnesota and Texas, in addition to Nebraska and Mississippi.73 The state of

Georgia, however, has banned the practice of allowing jurors to ask oral questions directly to

witnesses in criminal trials, although the act of submitting written questions to the court is

nevertheless allowable in various circumstances.74

These states that ban juror questions in criminal cases have expressed the typical apprehensions

associated with juror questioning. For example, in the 2002 case of State v. Costello, the

Supreme Court of Minnesota outlawed the practice of juror questioning in criminal cases for

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fear that it would adversely affect juror impartiality and would relieve the prosecution of its

burden of proof.75 In holding that jurors should not *282 be afforded the opportunity to question

trial witnesses during a criminal trial,76 the Minnesota Court expressed its concern that the

practice might lead to juror impartiality and that it might also impact the burden of proof and

production that is possessed by the State during criminal prosecutions.77

While the fears expressed by the Minnesota Supreme Court might be representative of the

concerns generally held by those opposed to juror questioning, it remains nevertheless

noteworthy that Minnesota exists among a small minority in terms of banning the practice

entirely.78 The vast majority of jurisdictions, however, still have not found opponents’

apprehensions grave enough to warrant the complete prohibition of juror questions.79 Rather,

many jurisdictions instead find the advantages of juror questions to outweigh any potential

drawbacks.80

2. Jurisdictions That Do Not Expressly Prohibit Questions but Where Trial Judges Might Not

Typically Employ the Practice

As previously stated, not a single federal circuit prohibits the practice of juror questioning.81

Rather, every federal circuit that has evaluated juror questioning has found it to be an acceptable

practice entirely within the discretion of the trial court.82 In United States v. Callahan, the Fifth

Circuit expressly acknowledged the beneficial impact that juror questions can offer:

There is nothing improper about the practice of allowing occasional questions

from jurors to be asked of witnesses. If a juror seems unclear as to a point in the

proof, it makes good common sense to allow a question to be asked about it. If

nothing else, the question should alert trial counsel that a particular factual issue

may need more extensive development.83

In this same opinion, the Fifth Circuit further approved juror questioning by explaining that it

leads to a more comprehensive development of the issues and facts within a case, and that

“[t]rials exist to develop the truth.”84 Likewise, the Eighth Circuit has extensively examined the

practice, ultimately holding that juror questions are permissible within “enumerated *283

procedures.”85 The Fourth Circuit has also commented on the admissibility of juror questioning,

preferring written questions as opposed to oral questions.86 The First Circuit, too, has addressed

juror questioning, specifically within a criminal context, and has advised that courts adhere to

procedural safeguards when utilizing the practice.87 Analogous to both the Fourth and First

Circuits, the Seventh Circuit also recommends that district courts permitting juror questions

should adopt preventive measures and require questions to be in writing.88 Moreover, and

perhaps most relevant for the purposes of this Note, several Seventh Circuit district court judges

from Illinois have in recent years rigorously advocated for the implementation of juror

questioning.89 Both former Chief Justice James F. Holderman of the Northern District of Illinois

and Chief Justice David R. Herndon of the Southern District of Illinois are among the staunchest

of advocates,90 with former Chief Judge Holderman having employed juror questioning in every

single trial he has had since 2005,91 and with Chief Judge Herndon having actually been

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“begged” by parties to allow the practice.92

Apart from federal jurisdictions allowing questions to witnesses, most military hearings permit

members of court-martial panels to ask questions of witnesses as well.93 The majority of states

also already allow for some form of juror questioning in certain circumstances.94 Typically, these

states allow the practice subject to the trial judge’s broad discretion.95 Although the practice

might technically be allowed in most jurisdictions, it is infrequently employed or actively

encouraged, which might explain why the public knows little about the practice. (It might also

explain why Hollywood storytellers like the creators of The Good Wife would find the topic

innovative and interesting enough to use as the basis for a plot twist.)96 Notably, prior to the

enactment of Rule 243, Illinois took this stance. To be certain, many of the states that expressly

allow juror questioning in at least some form have only addressed the matter in either a criminal

trial or a civil trial, but not necessarily both.97 Thus, emerging from trial courts across the

country, comes a history of case law *284 that explores the constitutional boundaries of juror

questioning and overwhelmingly legitimizes the practice as a lawful procedure for use in

accordance with a trial judge’s discretion. Significantly, the majority of judicial precedent

analyzing juror questioning has occurred against the backdrop of a criminal trial.98 In fact, the

states of Alaska, Arkansas, Massachusetts, Michigan, Nevada, New Mexico, New York, North

Carolina, Ohio, Vermont, Virginia, and the District of Columbia have all examined juror

questioning of witnesses in criminal cases and have concluded that the practice is admissible.99

Furthermore, there has been no indication that these states would rule any differently if

evaluating the legality of juror questioning in civil cases.100 Similarly, Connecticut, Iowa, and

Pennsylvania each have established case law holding that juror questioning is an admissible

procedure with the court’s discretion for civil matters, and no reason exists to believe any of

these three states would hold otherwise for a criminal trial.101 Judicial rulings in Georgia have

also upheld juror questioning of witnesses as long as jurors offer the questions in writing and not

through direct oral interrogation.102

Nevertheless, while to date only four states expressly prohibit jury questions in criminal trials,103

a handful of other states have admittedly discouraged the practice.104 California, Kansas, and

Montana, for instance, all have produced criminal case law in which their respective state courts

declared juror questioning constitutional but simultaneously discouraged the practice and

highlighted its potential dangers.105 Likewise, South Carolina civil precedent has discouraged

juror questioning despite recognizing its admissibility subject to the trial court’s discretion.106

Despite Illinois’s recent approval of juror questioning in civil matters, commentators have

occasionally included Illinois among the minority of states that discourage juror questioning in

criminal trials.107

*285 3. Jurisdictions that Allow Questions in Some Form and Within Specified Guidelines

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A number of state jurisdictions have already explicitly codified procedural rules regarding juror

questioning of trial witnesses.108 Many of these states even allow the practice in all jury trials,

meaning courts in these states permit juror questioning in both civil and criminal contexts.

Arizona, Colorado, Hawaii, Idaho, Tennessee, and Utah, for example, each have designated two

separate, albeit similar, rules: one for juror questioning during civil trials and one for juror

questioning during criminal trials.109 Similarly, New Hampshire has adopted a juror questioning

rule that encompasses both civil cases and “any criminal case in which all parties consent.”110

Likewise, Indiana, Kentucky, Missouri, and Oregon have all codified a general procedural rule

for juror questioning of witnesses in any trial.111 A typical juror-questioning rule adapted for both

a civil trial and a criminal trial might look similar to the following rule language, which Idaho

has adopted for both of its civil and criminal rules on juror questioning:

In the discretion of the court, jurors may be instructed that they are individually

permitted to submit to the court a written question directed to any witness. If

questions are submitted, the parties or counsel shall be given the opportunity to

object to such questions outside the presence of the jury. If the questions are not

objectionable, the court shall read the question to the witness. The parties or

counsel may then be given the opportunity to ask follow-up questions as

necessary.112

In addition, a considerable number of other states have enacted a juror-questioning rule that

applies only to civil trials. This group of states includes Florida,113 New Jersey,114 North

Dakota,115 Washington,116 Wyoming,117 and as of July 2012, Illinois.118 Interestingly, some of

these state juror questioning rules surfaced as a result of various pilot projects and reports that

endorsed juror questioning.119

Emerging as a leader of the juror questioning movement has most certainly been Arizona.

Whereas most states allow juror questions only subject to the trial court’s discretion,120 Arizona

is one of three states *286 (with the other two being Colorado and Indiana) in which jurors

actually have a mandated right to question witnesses in all trials.121 Arizona not only mandates

juror questioning in both civil and criminal trials,122 but most recently the state has garnered

monumental media attention for using the innovative practice in a highly publicized criminal

case: the Jodi Arias murder trial.123 On March 6 and 7, 2013, the

ex-lover-turned-accused-murderer, Jodi Arias, confronted more than 220 juror questions read

aloud to her by the judge.124 Tellingly, the American public responded favorably to the jurors’

questions; in an online poll by HeadLineNews, seventy-nine percent of voters rated the jurors’

questions as being within the A+, A, or A- range on an A through F grading scale.125

III. Analysis

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A. Benefits of Juror Questioning

1. In General

“The purpose of trial is to find the truth and exact justice through the transmission of

information to the jury.”126 It is this vision that lies at the heart of the juror questioning debate.

Proponents argue that juror questioning represents and facilitates the most essential goal of jury

trials: to present evidence in such a way that the jury can accurately determine the underlying

truth and, accordingly, fashion an appropriate verdict. Indeed, the goal of Illinois Supreme Court

Rule 243 is that juries will develop a greater understanding of witness testimony, thus “allowing

for [juror] verdicts that are based on a correct understanding of the facts and testimony.”127

Enabling the search for truth, then, seems to be at the forefront of the argument in favor of

allowing jurors to question witnesses.

Proponents list numerous other benefits from juror questioning as well. One of the most

commonly recognized advantages is that juror questioning tends to result in having jurors who

are more engaged and *287 more attentive during trial.128 Jurors who are allowed to ask

questions to witnesses might actually find the trials more interesting.129 In particular, the more

active a role that the jurors play, the more understanding they will possess regarding the

significance of their responsibility.130 Furthermore, empirical research has shown that jurors who

are permitted to ask questions to witnesses are ultimately “more satisfied with their service and

more confident with their verdicts.”131 Not only can juror questioning aid the jury in becoming

“more active, focused, and involved,” but other perceived benefits include that juror questions

“help[ ] jurors resolve questions they may have regarding the facts or the law[,] increas[e] the

public’s perception of the credibility of the jury[,] and serv[e] as a check on the power of judges

and attorneys.”132

Significantly, “questions may provide counsel an opportunity to better comprehend jurors’

thought processes and their perceptions of case weaknesses.”133 Such insight can provide both

sides with a greater understanding of how to communicate with the jury. Otherwise, “without

feedback from jurors, the attorneys presenting a case may not realize that vital information is

[inadvertently] being omitted.”134 Hearing jurors’ questions also alerts both the court and counsel

to the aspects of the case that the jury finds most troubling.135 In turn, such awareness of the

jury’s thoughts can allow party attorneys to better structure their cases and witness examinations

in a manner that more effectively addresses and resolves issues in the eyes of the jurors.136

Another advantage of permitting juror questioning is that jurors finally have an outlet by which

to seek answers to questions they possess but that no one else has thought to ask. Otherwise, if

jurors are not allowed to ask their questions, the likelihood is that they will engage in “self-help

measures,” which in the long run “are not to the benefit of judges or lawyers.”137 While “the

milder form of self-help is when jurors speculate to an answer” and simply “make up one”

whenever they do not know, the “stronger and even less desirable form” is when jurors resort to

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finding their own answers with the help of outside sources, such as conducting quick searches

on their iPhones or laptops.138 In today’s technology-fueled *288 world of the Internet and social

media, information is literally just a quick keyword search and mouse-click away. Society has

grown accustomed to endless possibilities for immediate communication and the ability to

satiate human curiosity with instantaneous results. Indeed, the modern public is comprised of

individuals who have been taught and encouraged to be self-sufficient thinkers and to take

advantage of today’s advanced technological tools. The danger in forcing members of a modern

jury to sit passively and quietly throughout a trial, which often spans over a period of days or

even weeks, is that it goes against the very nature of a public which has been raised to “just

Google it” and receive thousands of results in a matter of seconds.139 Even though a judge might

warn the jury not to consult any outside information throughout the duration of the case,

common sense points to the reality that each time the jurors leave the courtroom only to return

the next day, the issues of the case will likely still be present in their minds.

As a result, many jurors might succumb to the temptation to address their questions by

impermissibly seeking answers on their own time in order to feel better prepared and

knowledgeable the next time they enter the jury box. Indeed, “[t]here are instances in which

jurors have, on their own, made site visits or consulted reference books, the Internet, and

lawyers who are not involved in the case.”140 Because the court has no control over the content

of this outside information, it could easily be inaccurate or biased and thereby negatively

influence the jurors’ viewpoints of the case. Critics argue that allowing juror questioning could

lead to juror impartiality, but the reality remains that barring jurors from expressing their

concerns and questions during trial (at a time when counsel has the opportunity to adapt the

presentation of their evidence so as to clear up any confusion) is just as likely to lead to juror

impartiality and premature deliberation.141 Additionally, another undesirable outcome might be

that jurors instead rely on turning to one another before, or during, deliberation to understand

what occurred during trial; the danger, however, is that “fellow jurors may or may not know the

answer.”142 Alternatively, simply allowing jurors to make their inquiries and uncertainties known

in a timely fashion to the court through written questions can help reduce the need for jurors to

resort to undesirable and prohibited self-help measures.

*289 2. Specifically in Criminal Trials

To understand the specific benefits to criminal trials that the practice of juror questioning

provides, one must consider what is at stake in a civil trial versus what is at stake in a criminal

trial. In civil trials, the alleged wrongdoing can be thought of as harm to a private group or

individual.143 Criminal trials, however, are a different story. In a criminal lawsuit, the alleged

wrongdoing is not simply an injury to a private party, but rather a transgression against the

whole of society.144 It follows, then, that the purpose of a civil trial differs quite significantly

from the purpose of a criminal trial.145 Whereas the primary goal of a civil trial is to provide

compensation and restore the injured party to its whole condition, the principal aim of a criminal

trial is to protect members of the public and to restore justice through retribution and

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punishment.146 Indeed, in the world of civil litigation, the remedy for wrongdoing is typically

monetary damages or some type of injunction.147 In the realm of criminal litigation, however, the

remedy is commonly imprisonment.148 As a result, the consequences of a civil trial are quite

disparate from those of a criminal trial. While a defendant’s money and reputation might be at

stake in the former, the defendant in the latter has the grave potential of completely losing his or

her constitutional right to individual freedom.

Keeping in mind this reality of the stark contrast in what is at stake in a civil trial versus a

criminal trial, logic would dictate that the need for meticulous truth-finding might arguably be

much greater in a criminal trial than in a civil trial. Furthermore, it would seem unreasonable

and unfair that if society is willing to allow juror questioning in the first place, that it would not

first try to implement the practice in a criminal context where the impact of questioning the

witness would arguably best serve the societal interests of promoting justice and protecting

human liberty.

B. Concerns Associated with Juror Questioning

1. In General

As with every good thing, alongside the advantages associated with juror questioning exist

many concerns regarding the constitutionality and overall impact of the practice. At the forefront

of these concerns is the fear that allowing jurors to question witnesses might prevent parties

from *290 receiving their constitutional guarantee to an impartial jury.149 Critics contend that

juror questioning negatively affects trials by transforming what should be a passive, impartial

jury into an active, partial jury.150

The concern about maintaining impartiality is perhaps the most troubling apprehension for

people who are not in favor of juror questioning. For instance, one fear is that jurors might pose

their questions in such a way that the questions cease to be inquisitorial and instead exist more

as commentary.151 In addition, skeptics contend that one risk in allowing jurors to submit even

written questions is that it could potentially lead to bias if a particular juror’s question is not

ultimately asked.152 The worry is that the process of posing questions only to have them remain

unanswered might greatly frustrate jurors. On the other hand, if the court does decide to ask a

juror’s question, there is also the potential that that juror might assign too much weight to the

answer to that particular question solely because he or she thought to ask it. Stated differently,

the answer of that particular question might significantly distract the juror who asked it and

might cause him or her to inadvertently overlook other testimonial evidence.153

In particular, those opposed to juror questioning fear “premature deliberation.”154 Premature

deliberation occurs when a juror begins to deliberate and determine what the outcome of the trial

should be prior to having heard and seen all of the evidence.155 According to the argument, the

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act of formulating witness questions actually encourages jurors to begin the deliberation process

before all the evidence has been submitted and before the jurors have retired to the jury room to

decide the verdict as a group.156 Advocates who have used juror questioning in practice,

however, have responded to the fears of impartiality and premature deliberation by pointing out

that they have actually not found such risks to come to fruition after allowing juror questions.157

*291 On the contrary, supporters note that jurors appear only to better understand the facts of

the case and do not even appear negatively affected when a judge chooses not to allow a

particular question due to admissibility.158 In fact, several judges interviewed for this Note

specifically remarked that jurors react positively even when the judge excludes a question,

because at least then the judge has had the opportunity of explaining to the jurors why that

particular question is not relevant or admissible for the issue at hand in the case.159 In turn, the

judge’s ruling and subsequent explanation relieves the jurors from being burdened by distracting

thoughts and uncertainties that they should not be focusing on for purposes of rendering a

verdict.

Furthermore, skeptics fear that allowing juror questions will inevitably lead to the disclosure of

inadmissible evidence.160 Indeed, some lawyers are opposed to juror questioning because they

believe it will disrupt their well-thought-out plans for the representation of their cases, including

both the construction of their side of the story as well as their execution in proving its truth.161

Yet, it is important to remember that opposing counsel are not “the sole arbiters of the scope and

content of testimony”;162 and although they can spend large quantities of time prepping their

witnesses as to how and what to testify, the attorneys representing each party ultimately have no

control in choosing what the witnesses will or will not say when giving live testimony.163

Another argument against allowing juror questioning is that the process might cause delay and

result in an increase in the average time length of trials.164 Opponents of juror questioning

contend that the practice causes inefficiency, as well as unwarranted interruptions during trial.165

In response, supporters say that although it may take longer to try a case by allowing juror

questions, “the trade-off of having a more informed jury is worth the delay.”166

2. Specifically in Criminal Trials

As former Supreme Court Justice Black once noted, “[a] criminal trial is in part a search for

truth. But it is also a system designed to protect ‘freedom’ by insuring that no one is criminally

punished unless the *292 State has first succeeded in the admittedly difficult task of convincing

a jury that the defendant is guilty.”167 Indeed, as a society, Americans subscribe to the notion that

it is preferable to let a guilty man walk free than to deprive an innocent man of his freedom.168

The need to protect a defendant’s Sixth Amendment’s rights from juror bias is thus one of the

most popular arguments used by opponents of juror questioning.

Furthermore, the concern regarding premature deliberation is particularly acute in criminal

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trials, because in criminal trials, the State presents its evidence first.169 Defense attorneys

therefore worry that if jurors are deliberating prematurely, they will not wait for the defense to

provide any of its exculpatory evidence and will instead make up their minds before ever even

hearing the defendant’s side of the story.170 The danger is that such a situation would cause a

prejudice against the defendant so as to make him or her guilty in the eyes of the jury before

even given a chance to prove his or her innocence, instead of adhering to the basic American

notion that everyone is “innocent until proven guilty.” Alternatively, though, the danger of not

allowing questions is that the jurors might not have the same chances of dissecting the truth;

without the jurors having the best possible chance at discovering the truth of the case, it is only

logical that their verdicts might inadvertently be condemning innocent people as though they

were guilty and absolving guilty people as they were though innocent.

Additionally, many opponents of juror questioning of witnesses in criminal cases argue that

such questioning effectively relieves the prosecution of establishing its burden of proof.171 In

criminal cases, the prosecution is responsible for proving beyond a reasonable doubt that every

element of the crime alleged actually exists.172 Thus, when it comes to juror questioning, many

people fear that allowing the jury to question witnesses alleviates the prosecution’s burden.173 In

a trial without juror questions, the State is forced to develop a thorough prosecutorial plan and to

ask relevant questions that elicit important and revealing testimony. In a trial with juror

questions, people worry that prosecutors might not take their jobs as seriously and will instead

rely on the jury to do the work for them.174 In other words, “[i]f jury questions are permitted in

criminal cases, . . . the prosecutor could forget or simply fail to develop an aspect of its case, and

the jury, in effect acting on the part of the prosecutor, could ask questions of witnesses that

ultimately fill the holes in the prosecution’s *293 case.”175 In fact, the Minnesota Supreme Court

has explicitly acknowledged this potential drawback to juror questioning in criminal cases:

The assistance provided to the prosecution by juror questioning may be direct or indirect. “Juror

questioning can directly assist the prosecution when . . . evidence could be revealed by a juror

question. Juror questioning can indirectly assist the prosecution when it simply illuminates a

facet of the case that interests the jurors . . . . Because the practice of juror questioning can

actively assist the State in meeting its burden of proof, the jurors’ role may be compromised.”176

The response to this argument is that when it comes to ensuring justice, it should not matter who

thought of the question--the prosecution, the judge, or the jury--so long as when the question is

asked, it appropriately elicits admissible testimony and helps solve the underlying truth of the

matter.177 Moreover, if the correct procedural safeguards are followed by the court, then no

juror’s question will be asked without first having been subject to objection by counsel on each

side and ultimately having been approved by the presiding judge.178 Therefore, “[t]he fact that

the question originated with a juror is less important than the fact that the judge deems the

question worthy of being asked.”179

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C. The Powers of Judges Versus the Powers of Juries

Interestingly, those opposed to juror questioning seem not to have considered the fact that their

expectations for a “trier of fact” are not uniform across trials. During a bench trial, for example,

the judge is the trier of fact and completely within his or her right to question witnesses for

clarification.180 Yet, for whatever reason, many people appear to believe that the American court

system should not afford the same rights to jurors, who are the triers of fact during a jury trial.181

In fact, even though jurors probably need more clarification because they are typically much less

informed in the law than is the average judge,182 jurors cannot ask questions like a judge can.

Thus, jurors are entitled to fewer means by which to determine the truth and make an informed

decision. Furthermore, even though jurors have just as much power over the outcome of a jury

trial as the judge does over the outcome of a bench trial, jurors are *294 essentially discouraged

from seeking better understanding simply because they do not have the same authoritative status

that society gives to the black-robed, gavel-wielding individual.

Despite the number of questions a judge presiding over a bench trial may have posed to

witnesses during a trial, society has faith that the judge will remain impartial until the end of the

trial. In a natural course of events, one would think that the same outlook would apply to jury

trials, where not one person, but twelve people are combining their intelligence and common

sense in order to determine the correct outcome. Moreover, in responding to fears such as juror

impartiality and premature deliberation, advocates of juror questioning have been quick to point

out that “[j]uror questioning of witnesses is no more indicative of a prematurely made-up mind

of a juror than a judge’s questioning of witnesses in a bench trial is of the judge’s premature

decision.”183 As expressed by the Honorable John R. Stegner, a judge in Idaho who utilizes juror

questioning in criminal trials, if it is essential that trial judges be permitted to pose questions

“for clarification and for gathering information . . . [when] they act as fact-finders,” it follows

that “jurors should likewise be afforded a similar opportunity.”184

The argument against allowing juror questions is also somewhat perplexing since often it is the

judge who ends up asking the witnesses the jurors’ questions anyway.185 As such, the structure of

the trial does not drastically change at all by implementing the use of juror questioning.

Although many may argue that counsel should possess the sole authority to present evidence,

the legal system has never actually entrusted party attorneys with a complete and exclusive

power to do so.186 In fact, the judge has always retained the capacity to intercede and interrupt

partisan presentation whenever the interests of justice render it necessary for the furtherance of

the truth.187 By its very nature, the adversarial system encompasses an inherent limitation to its

truth-searching objectives: at the outset of any case, two quarreling parties are set in opposition

against one another with the sole aim of winning.188 This end goal translates into the reality that

parties will occasionally sacrifice verity in exchange for a favorable verdict.189 As judges

themselves have previously remarked,

The supreme concern of the parties on trial, and therefore of counsel, is to win. Of course, the

battle should be fought by the rules, *295 but the goal is victory--not the triumph of ‘justice’

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viewed in detachment, but triumph. The high objective of the defense lawyer on trial is

acquittal--not an acquittal because the client is innocent, just an acquittal.190

In short, the judge of any trial is accountable for ensuring that the adversarial system upholds

fairness and encourages the quest for truth. Naturally, in a jury trial, the judge must work in

conjunction with the jurors to administer such justice. Surely, in a system in which the presiding

judge already possesses the capacity to intervene and ask his or her own clarifying questions

during trial, allowing the presiding jury the same right for clarification would not greatly disrupt

the system.

D. Procedural Safeguards

In recognizing the potential of certain disadvantages associated with juror questioning,

jurisdictions that employ the practice have developed a series of procedural safeguards.191 Yet,

the question of which procedural safeguards should be implemented has led to almost as much

examination as has the topic of whether juror questioning should even be allowed.

Unsurprisingly, one of the principal concerns is exactly how the jurors’ questions will be asked.

Indeed, in implementing juror questioning, courts must consider numerous procedural

questions:192 How will the jurors make their questions known? Who will ask the jurors’

questions to the witnesses? During what part of trial will the jurors’ questions be asked? Will the

attorneys have an opportunity to hear--and perhaps object--before these questions will be asked?

What happens when a juror asks a question the answer of which would require the disclosure of

inadmissible evidence? What will be the standard of review regarding these questions? The list

goes on and on.

In those jurisdictions that do favor juror questioning, the general opinion seems to be that one of

the most imperative procedural safeguards is the requirement that jurors submit their questions

in written form.193 Importantly, “[b]y having the question submitted in writing, the judge and

lawyers control when jurors ask their questions [and] have time for well-considered answers.”194

In Illinois, for instance, Rule 243 requires jurors to submit any questions in writing.195 The idea

of Rule 243 is that jurors will be able to listen to a witness’s testimony, and at the *296

conclusion of questioning by counsel, the judge will determine whether jurors should be allowed

to ask follow-up, written questions.196 Furthermore, although one option could be to have the

parties ask the juror questions to the witnesses,197 the most common practice appears to bestow

the question-asking responsibility upon the court.198

For any witness that the court deems appropriate for juror questioning, many courts have

implemented an opportunity for the attorneys from each opposing side to raise objections to

questions they feel would provide bias towards their client or that might elicit inadmissible

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evidence.199 In response to the genuine concern that juror questioning might lengthen the

duration of a trial exists the apt suggestion that counsel should make objections to juror

questions during sidebars.200 The other alternative would be to require the jury to first physically

leave the courtroom before the attorneys make their arguments on the admissibility of the

questions.201 Either way, it would appear most sound to preserve the anonymity of the juror

posing each question, so that the jurors feel complete freedom to make their concerns known

without simultaneously drawing attention to their individual skepticisms and uncertainties.

Another safeguard is that judges should provide comprehensive direction to jurors whenever the

court decides to utilize the practice of juror questioning for a particular trial. At the

commencement of the trial, the court should instruct the jury regarding their ability to submit

questions to witnesses by briefly detailing how the process will work.202 The judge’s

admonishment should consist of the judge either explaining to the jury the reasoning behind

modifying or excluding questions, or if nothing else at least advising the jurors that any

modification or exclusion has been made in accordance with the rules of evidence and that the

jurors should therefore not become distracted with the details about why the question as

originally written was inadmissible.203 In other words, “[i]f the question is one that is

inappropriate . . . to address, the judge [should] simply explain this to the jury.”204

*297 E. Opinions of Illinois’s Current Legal Leaders and Community

While legal leaders in Illinois have clearly taken the stance that juror questioning can be useful

in certain trials, there remain differing opinions about exactly which types of trials should permit

such questions. Whereas some attorneys and judges in Illinois think that jurors should only be

able to ask questions in civil trials,205 other lawyers and judges in the state believe that juror

questioning should be considered for criminal trials as well, especially “since the whole purpose

is to search for truth.”206 A full examination on the topic of juror questioning in Illinois criminal

trials warrants a discussion of opinions by some of Illinois’s most notable legal experts.

Importantly, although state courts recognizably do not have to adopt the procedures of federal

courts regarding juror questioning, it bears noting that numerous prominent judges of the federal

district courts within Illinois strongly advocate for the practice and have found its exercise to be

an invaluable technique during trial.207 In these courts, several judges have made it their practice

to utilize juror questioning extensively.208 In doing so, certain of these federal judges became

influential in helping the Illinois Supreme Court determine whether or not to adopt Rule 243.209

Former Chief Justice James F. Holderman of the United States District Court for the Northern

District of Illinois, for instance, testified in support of juror questioning for the Illinois Supreme

Court hearing in which the court ultimately decided to enact Rule 243.210 As Judge Holderman

noted in an interview in connection with this Note, he has used juror questioning “extensively

and exclusively” in every trial he has presided over since 2005 and “will never go back” to not

using the practice.211 He believes being able to submit written questions “allows jurors to dispel

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any concerns they have from the evidence that is presented.”212 Judge Holderman acknowledged

that, as of yet, he has only had the opportunity to use juror questioning in civil trials, but that he

expects to preside over criminal trials in the near future and definitely plans to allow juror

questions in the criminal context.213 He also noted that he believes *298 the practice of juror

questioning “would work the very same in criminal trials and that it would work very well.”214

“If a juror were to ask a question that would be eliciting inadmissible evidence, the judge could

explain it like they do in civil cases,” by simply telling the jurors that the answer their question

seeks “is not part of the evidence nor should it be . . . and go[ing] on to explain why.”215

Furthermore, Judge Holderman, who said he tries to explain to jurors the reasoning why a

particular question is inadmissible, stated that he “can see in the jurors’ eyes that they

understand [when and why a question is inadmissible], because the judge has just explained the

law to them and they like that.”216

As another experienced expert in the field of juror questioning, Chief Justice David R. Herndon

of the United States District Court for the Southern District of Illinois emphasized in an

interview for this Note that juror questioning is effective because “juries are non-lawyers [and]

they miss things [and] ask questions that lawyers don’t think [to ask].”217 More than that, Chief

Judge Herndon also said that in his experience, the “jury likes [juror questioning] and feels far

more invested in the trial” when the court allows the practice.218 He also stated that he thinks

juror questioning makes people “feel better about serving on the jury” and in general allows

them to “pay better attention.”219 Additionally, Chief Judge Herndon, who uses juror questioning

in both criminal and civil trials, remarked that he is “not sure why people are afraid” of juror

questioning in criminal trials.220 In his own experience, he has actually had parties “beg” him to

allow the practice, and he said he “has never had a defense counselor or defendant object to the

practice” and “has yet to receive a question from any juror that a defense lawyer has suggested

would encroach upon a constitutional right.”221 If he ever did receive such a question, though, he

stated he “just wouldn’t ask it.”222 As Chief Justice Herndon further emphasized, the practice of

juror questioning “allows the defense to talk to the defendant” regarding all juror questions, and

“all objections are heard and dealt with.”223 Overall, Chief Justice Herndon “fails to see the

distinction” between allowing juror questioning in civil trials versus allowing the practice in

criminal trials.224

Perhaps most noteworthy is that the strongest advocates of allowing jurors to submit questions

to witnesses are frequently those practitioners and trial judges who have actually experienced

juror questioning in practice. *299 225 The same reality was true concerning the jury innovation

of allowing jurors to take notes during trial, which in recent years has become a more common

practice nationwide; those who “actually had experience with it in the courtroom” became

advocates of its beneficial impact.226

Still, it remains important to acknowledge that change seldom occurs without at least some

resistance. Indeed, even since the Illinois Supreme Court enacted Rule 243 in July 2012, many

attorneys have remained hesitant to utilize the Rule and allow juror questioning to occur during

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trial.227 In an interview for this Note, Partner Stephen Kaufmann of HeplerBroom LLC,

identified earlier as the attorney who initiated the Rule 243 proposal before the Illinois Supreme

Court, affirmed that he believes that such hesitancy unfortunately exists among many Illinois

courts and practitioners.228 Since Rule 243 came into effect, Kaufmann himself “has not [yet]

had a trial in an Illinois state court where the [juror-questioning] Rule was utilized,” although at

a trial in Decatur, Illinois last September, he “came close.”229 To Kaufmann’s admitted surprise,

when he brought up Rule 243 in the final pretrial conference for that case, “the circuit judge

indicated he had not yet utilized the Rule.”230 The other attorneys also “indicated resistance to

using the Rule,” although “they could not really say why,” instead merely expressing that they

felt uneasy towards the Rule because they were not familiar with it.231 Kaufmann suspected that

the reluctance to utilizing Rule 243 is “because [the Rule] is new and unfamiliar.”232 Kaufmann

further stated that he suspects the hesitancy might be due in part to “more-experienced attorneys

being resistant to change.”233

Further, even certain advocates of the practice in civil trials are unwilling to allow juror

questioning of witnesses in criminal trials. The Honorable Warren Wolfson, for example, a huge

proponent of using juror questions for civil matters, commented for purposes of this Note that he

“would be reluctant” to allow juror questioning in criminal trials.234 His fear is that “it [might]

shift the burden of proof.”235 In explaining his thoughts further, however, Judge Wolfson noted

he actually has “never done [[juror questioning] in a criminal trial” before, and his reluctance

*300 comes not so much from scientific reasoning but rather is “just a feeling [he has]”236 after

so many years on the bench.

The Honorable Ronald Spears of the Fourth Circuit in Christian County, Illinois, reiterated the

reality that many judges, himself included, have a degree of hesitation toward juror questioning

simply because they do not want to cause any “constitutional implications” and “[do not] want

to do anything to impose a burden of proof on the defendant.”237 In recognizing that a “fear of

the unknown” exists in regards to juror questioning, Judge Spears emphasized in an interview

for this Note that one of his main concerns in allowing juror questions would be maintaining

control.238 If control and constitutional implications were not issues, however, Judge Spears

“would be very receptive [and] willing to implement” juror questioning because he is “positive

toward all developments that improve the jury system.”239 Specifically, Judge Spears noted that

juror questioning seems to be an “evolutionary” and “logical next step.”240 Furthermore, as Judge

Spears recognized when interviewed for this Note, because defendants are capable of waiving

their rights in other circumstances, it might be interesting to consider how a court should

respond if a criminal defendant actually requested juror questioning and thereby waived any

privilege he or she possessed against using it, such as protection from self-incrimination.241 As

Judge Spears said, at the point at which the accused desires that the jurors have permission to

ask questions, then “the prosecution and judge might have to answer [those] questions.”242 Judge

Spears also acknowledged that there would likely be less apprehension in a case in which both

parties agreed to the jurors asking questions.243

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While not all federal judges in Illinois have had as much experience with juror questioning as

former Chief Justice Holderman and Chief Justice Herndon have, there seems to exist a general

consensus that if it helps elicit the truth, then juror questioning could be a very effective

method--if only the parties would be open to trying it. In an initial interview in connection with

this Note, the Honorable Sue E. Myerscough of the United States District Court for the Central

District of Illinois244 indicated that she “ha[d] offered [[juror questioning] in every jury trial [she

has had since becoming a federal judge], but [that] both sides ha[d] *301 rejected it.”245 Yet, as

Judge Myerscough emphasized, she is a judge, and so for her, “the truth’s the truth.”246

Accordingly, to the extent that juror questioning of witnesses helps jurors determine the truth,

Judge Myerscough stated that she was “not opposed” to allowing the practice in her

courtroom;247 at that time, she, like many others, simply “just [hadn’t] had much experience with

it.”248 A few months following that initial interview, however, Judge Myerscough did encounter

several opportunities to allow juror questioning.249 In her words, allowing the practice in those

cases led to “amazing results.”250 Quite possibly, Judge Myerscough’s experiences with juror

questioning within the past few months may be indicative of a larger movement in which juror

questioning is slowly gaining acceptance in courts in Illinois-- and at both state and federal

levels.

Perhaps any present reticence toward juror questioning among Illinois judges and attorneys can

be attributed to a typical “fear of the unknown.” For judges who espouse traditional notions of

the jury’s role as passive, the general sentiment is “that not allowing jurors to ask questions has

worked well in the past, so why . . . experiment with this new practice now?”251 Yet, even though

many Illinois prosecutors and defense attorneys may be unfamiliar and inexperienced with juror

questioning, that does not mean that they are all automatically against trying to implement the

practice in criminal cases. For instance, criminal defense lawyer Thomas Bruno of Champaign

County, IL, who has over twenty-five years of experience practicing law and has served as

former President of the Champaign County Bar Association and adjunct professor at the

University Illinois College of Law, stated for purposes of this Note that he “would like to see the

practice implemented because [he is] confident that in the long run we can evolve and adapt and

come up with rules and practices which would result in juror questioning being a net

improvement for criminal trials in Illinois.”252 Like many current practitioners in Illinois, Bruno

has “tried many criminal jury trials . . . but has not had any direct experience with juror

questioning of witnesses” and is “filled with questions.”253 He did admit that he is “tempted to

think of negative aspects of the process.”254 Nevertheless, Bruno also emphasized his belief that

“[o]ne of the major failings of our legal system is its inability *302 to be nimble and adapt to

changing times.”255 As Bruno stated, he “would hate to fall into that category of lawyers who

simply dismisses a new idea because that’s not the way we have always done it.”256

Furthermore, other attorneys throughout the State share Bruno’s eager and forward-thinking

attitude. In an interview for this Note, attorney Jon Gray Noll of Springfield, Illinois declared

juror questioning of witnesses “a good tool for everyone.”257 Previously, Noll served as an

officer in the Judge Advocate General’s Corps, where he used juror questioning while defending

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people in criminal trials.258 When asked his opinion on whether Illinois should consider

expanding Rule 243 to incorporate criminal trials, Noll stated that there exists “no reason not to”

and that he “would be for it.”259

Perhaps, as the discussion regarding juror questioning grows throughout Illinois’s legal

community, more attorneys and judges will ask each other at the outset of trial whether juror

questioning should be included. Many prominent legal leaders in Illinois apparently hope that

will be the case.

IV. Recommendation

In determining the answer to the juror questioning debate, perhaps the first question to ask is

why the public even has trials in the first place. Is not the purpose of trial to determine the truth

of alleged facts so as to ultimately promote justice?260 It would be difficult to argue otherwise.

Therefore, “[t]o the extent that jurors’ questions assist in the search for truth, those questions

should be asked.”261 As a state, Illinois clearly subscribed to this viewpoint when it passed Rule

243. With this perspective as Illinois’s basis for Rule 243, it follows that the search for truth

should be the most important consideration in determining when to permit juror questioning.

While the passage of Rule 243 has certainly been an encouraging sign that Illinois is working

toward improving the jury system, the Rule nevertheless falls short of achieving its full

potential. By restricting Rule 243’s applications to civil trials only, the Illinois Supreme Court

has limited jurors from freely exercising one of their key methods for establishing truth during

all trials. Importantly, one must remember that in criminal trials, jurors are not simply rendering

verdicts concerning monetary compensation, but instead are asked to determine someone’s guilt

or innocence and ultimately choose that person’s fate and affect his or her freedoms.

*303 One must also keep in mind that “a jury is expected to be the conscience of the community

and a safeguard against government oppression.”262 Thus, as the public’s outward conscience,

the jury is entrusted with the great responsibility of actually determining the fair and proper fate

of society’s accused individuals. In hopes of facilitating this process, many academics have

pushed for jury independence.263 Weighing the importance of juror rights and the overall power

vested in the jury, the idea of allowing jurors to ask their own questions of witnesses in order to

clarify understanding suddenly does not seem like such a radical concept. Specifically, the idea

that jurors should be permitted to ask questions in criminal trials becomes even more

commonsensical when one considers what is in jeopardy in a criminal trial versus what is in

jeopardy in a civil trial: namely, personal freedom, societal justice, and protection of the public

versus awards such as monetary damages, injunctions, court orders to fulfill duties, and

compensation for harm done.

In response to prevalent worries about potential juror partiality resulting from juror questioning,

juror questioning can actually reduce juror bias because it will encourage jurors to seek

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understanding inside of the courtroom, as opposed to having to turn to sources outside the

courtroom.264 Indeed, “[g]etting questions answered in court may prevent jurors from turning to

outside sources--if jurors can get answers to the questions they have during trial they may be

less likely to use outside sources, [like] the Internet, newspapers, dictionaries, etc., to get

answers to questions they think are important.”265 Additionally, unsubstantiated fears of the

unfamiliar should not prevent any judge, attorney, or juror from endeavoring to use every tool

possible to uncover the truth.

To combat the current “fear of the unknown” sentiment associated with juror questioning,

advocates throughout the state should begin holding more and more continuing legal education

(“CLE”) programs on Rule 243 as it presently exists, as well as on the general topic of juror

questioning and common jurisdictional approaches. These CLE programs should be offered to

both judges and attorneys alike so as to increase awareness not merely at the bench, but at all

levels of the court system and within all those involved. With greater awareness will come

greater familiarity amongst the legal world, and, perhaps, a greater willingness to at least afford

the practice of juror questioning a chance.

As many forward-thinking practitioners in Illinois recognize, “‘[o]nce the jurors are given the

case to decide, the lawyers lose all control over it anyway, so why not make the trial process

more interactive *304 and satisfying for the jurors?”’266 Given this reality, and the fact that so

much is at stake for a defendant in a criminal trial, there really seems to be no valid point in

keeping juror questioning away from any trial, be it civil or criminal. Illinois should therefore

either extend Rule 243 to encompass criminal trials, or it should create a new rule that is tailored

specifically to allowing juror questions in criminal contexts.

In broadening Rule 243, or in creating a new rule entirely, simply maintaining current

procedural standards while also implementing additional safeguards can alleviate many of the

fears that people have regarding juror questioning. Illinois lawmakers could incorporate such

safeguards in a manner that allows juror questioning and thus ensures that jurors have an outlet

by which to clarify their understanding, but that does not compromise any of the defendants’

Sixth Amendment rights. As one of the most obviously necessary safeguards for a

juror-questioning rule pertaining to criminal cases, it would be advisable for Illinois courts not

to allow jurors to directly question witnesses, as in the days of the “juror outbursts” discussed

above.267 Rather, the system of submitting written questions put in place by Rule 243 for civil

trials should be the mandated standard for criminal trials as well, since it allows for both the

judge and the party attorneys to carefully examine each question for bias and inadmissibility. In

addition, courts should certainly continue to read juror questions to counsel outside of the

presence of the jury, either during jury recesses or, if time is a factor, during sidebars.

Because trepidation admittedly exists among a number of state courts in implementing juror

questioning, another precaution to consider is only allowing juror questions in a criminal trial

after the court has evaluated the complexity of a particular witness’s testimony and deemed that

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such questions would be appropriate. For instance, in Principles for Juries & Jury Trials, the

American Bar Association recommends permitting juror questions and acknowledges that they

might be especially beneficial for cases with complex evidence or ambiguous testimony.268

Furthermore, for evidence that is inherently more confusing and difficult to comprehend,

perhaps Illinois judges could allow jurors to retreat to the jury room directly after testimony and

take one of their routine recesses, thereby affording the jurors a few short minutes to collect

their thoughts and write down any questions they might have. The jurors could then hand their

written questions to the bailiff, who could in turn immediately transport the questions to the

judge’s bench. At that point, the judge could read the questions aloud to partisan counsel and

any necessary objections could be made. Similar to the juror-questioning process for Illinois

civil trials, any juror question that the court deems admissible should continue to be asked of the

witness by the judge, as opposed to having *305 the prosecutor or defense lawyer ask the

question. Placing this responsibility upon the judge, who acts as a neutral arbitrator, will help

ensure fairness and reduce prejudice. It would also protect the lawyers from having to reveal to

the jury their individual reactions, including those of potential annoyance or frustration, to any

of the questions.

Equally, the rule should also attempt to protect jurors from having to reveal their individual

thoughts and uncertainties to the entire court, including counsel and potentially angry

defendants, witnesses, and members of the gallery. Thus, an important addition for a criminal

juror-questioning rule, and one that Rule 243 currently lacks, is a provision mandating the

anonymity of any juror who submits a question.

Given that people tend to associate greater worries about juror questioning with criminal trials

than they do with civil trials because of the many reasons discussed earlier in this Note, perhaps

Illinois courts might consider employing a safeguard for criminal trials in which at the outset of

the trial, the judge weighs the gravity of the crime alleged and the dangerousness of the accused

individual. Operating under this balancing test, courts could thus begin requiring juror

questioning in those cases where the consequences for not discovering the truth are most severe.

For instance, to appeal to those practitioners who are understandably concerned about the

potential disadvantages of juror questions in criminal trials, one alternative could be for Illinois

to first try applying juror questioning only to those trials concerning allegations of felony

misconduct, as opposed to merely misdemeanor behavior. As a result, in situations involving

felonies such as alleged murder, terrorism, treason, child pornography and molestation, sexual

assault, and rape--all of which are arguably some of the most heinous crimes against

society--jurors would be able to ask any questions needed for clarification as they ascertain the

truth. Such a situation would not only allow for greater comprehension and improved

determination of the facts, but it would also afford to jurors the maximum capability of

exercising their right to ensure justice and public safety because they would be doing so under

the gravest of circumstances. Even if the new rule did not mandate a balancing test concerning

the magnitude of the crime, the Advisory Committee could at least consider recommending this

option in a comment to the rule.

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Finally, as part of these newly proposed guidelines, perhaps Illinois could at least allow for juror

questioning of witnesses in criminal trials when both parties have consented. Stated differently,

the State could consider allowing juror questioning in criminal trials only when both the

prosecution and defense have explicitly agreed to its usage. Alternatively, the rule could highly

encourage judges to especially consider allowing the practice at the request of both parties.

Further, the judge could also be directed to give special consideration to allowing juror

questioning when the defendant is the one specifically asking for its usage, since protecting a

defendant’s Sixth Amendment rights is what most critics express *306 as being their main

concern with juror questions. In a scenario in which the defendant specifically requests that the

judge allow juror questions, the defendant willingly would be choosing not to worry about

constitutional dangers like risks of self incrimination, burden shifting, or juror bias. Effectively,

the defendant would be choosing to waive any privilege he or she might otherwise have against

juror questioning due to these potential risks. In the end, it should ultimately be the defendant’s

prerogative to present his or her version of the facts in whichever manner he or she deems most

effective. If, in order to prove the truth, and with proper representation by counsel and oversight

by an impartial judge, the defendant is willing to answer the jury’s questions, then the court

should not arbitrarily refuse to use juror questions. Such questions are truth-eliciting,

fact-finding tools that jurors use at trial to determine guilt or innocence.

As mentioned, if Illinois were to explicitly allow juror questioning in criminal trials, the

Supreme Court could either extend Rule 243 currently in place for civil trials, or the court could

create a new rule entirely that pertains solely to the use of juror questions in criminal trials.

Lawmakers could most easily amend Rule 243 by simply changing the words “in civil cases”

located in the first line of the rule to instead read “in all cases”269 or to read “in civil cases, and in

any criminal case in which all parties consent.”270 Alternatively, a separate rule to allow juror

questions in criminal trials could be modeled after Rule 243, as well as after certain rules from

other jurisdictions across the nation.271 Such a rule should be detailed and encompass a number

of safeguards272 to appropriately respond to any concerns over control or impartiality.

*307 Below is an example of how Illinois lawmakers could write a separate rule to allow juror

questioning specifically in criminal trials. This proposed rule contains language almost identical

to the current language of Rule 243273 but with added guidelines and provisions incorporated:

Written Juror Questions Directed to Witnesses.

(a) Questions Permitted. The court may permit jurors in criminal cases to submit to the court

written questions directed to witnesses. Questions shall be submitted anonymously, so that the

juror’s name is not included in the question.274 In any case in which all parties consent or in

which the defendant specifically requests that the court allow juror questions, the court shall

give special consideration to permitting jurors to question witnesses.

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(b) Procedure. The court shall explain the procedures to the parties and jurors at the

commencement of the trial. Following the conclusion of questioning by counsel, the court shall

determine whether the jury will be afforded the opportunity to question the witness. Regarding

each witness for whom the court determines questions by jurors are appropriate, the jury shall be

asked to submit any question they have for the witness in writing. Following any testimony the

court finds unusually lengthy or complex, jurors shall be given an opportunity to take a recess

directly afterwards to formulate potential questions they have, if any. No discussion regarding

the questions shall be allowed between jurors at any time; neither shall jurors be limited to

posing a single question nor shall jurors be required to submit questions. The bailiff will then

collect any questions and present the questions to the judge. Questions will be marked as

exhibits and made a part of the record.

allow counsel to see the written question, and give counsel an opportunity to object to the

question. If any objections are made, the court will rule upon them at that time and the question

will be admitted, modified, or excluded accordingly.

(d) Questioning of the Witness. The court shall instruct the witness to answer only the question

presented and not exceed the scope of the question. The court will ask each question; the court

will then provide all counsel with an opportunity to ask follow-up questions limited to the scope

of the new testimony.

(e) Admonishment to Jurors. When possible and appropriate, the court is highly encouraged to

briefly explain to the jurors the reasoning behind the modification or exclusion of any question

and *308 why the question as originally written is inadmissible. Otherwise, at times before or

during the trial that it deems appropriate, the court shall advise the jurors that they shall not

concern themselves with the reason for the exclusion or modification of any question submitted

and that such measures are taken by the court in accordance with the rules of evidence that

govern the case.

V. Conclusion

“Evidence is rarely unflawed and unambiguous.”275 Allowing the practice of juror questioning

both acknowledges and ameliorates this reality by helping jurors to better comprehend the trials

in which they participate. Illinois recently made great strides towards improving the jury system

when the Supreme Court adopted Rule 243. Yet, as innovative and groundbreaking as Rule 243

might seem, it fails to live up to its full potential. As the Rule exists currently, juror questioning

simply remains a practice that a judge can allow during trials involving civil disputes; trials

involving criminal misconduct remain outside of Rule 243’s reach.

As this Note explains, the benefits of allowing the practice of juror questioning of witnesses in

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criminal trials significantly outweigh the concerns of not allowing it. This assertion rings

especially true when considering the impact of civil versus criminal verdicts on the lives of not

only the plaintiff and defendant, but also on the whole of society at large. Perhaps most telling

about the juror questioning debate is that most attorneys and judges who actually experience its

effects are the ones who end up advocating for courts to utilize the practice.276 Indeed, as the

Chief Justice Thomas L. Kilbride of the Illinois Supreme Court stated in regards to enacting

Rule 243, “[b]ased on the comments of those who have used or seen the procedure at trials, such

a rule enhances juror engagement, juror comprehension and attention to the proceeding and

gives jurors a better appreciation for our system of justice.”277 Stated differently, the concept of

allowing jurors to question witnesses is not simply an idealistic or impractical string of legal

theory. Instead, juror questioning is an exercise that numerous judges and practitioners, both

around the country and within the state of Illinois, have already found to be extremely useful in

enhancing the legal system and its application of standards of fairness. Even more specifically,

as examined previously in this Note, countless courts throughout the nation have already

determined that juror questioning of witnesses in criminal trials is not only *309 constitutional

but also even desirable.278 In fact, the Jodi Arias trial in Arizona, discussed above,279 has not been

the only criminal trial to make current news headlines for advancing juror questioning; on

Thursday, March 14, 2013, Michigan jury members posited four questions to a grandmother

named Sandra Layne who allegedly killed her grandson in an act of self-defense.280 In

commenting on the trial, journalists have remarked that these “members of the jury may have

asked the biggest questions of all.”281

The argument for extending Illinois Supreme Court Rule 243 to include juror questioning of

witnesses in criminal trials can be summarized in one simple statement: “the better informed the

jury, the more likely it is to render a just verdict.”282 Logically furthering that idea, the more just

the verdict, the more fairly the criminal legal system will have treated both the accused and the

accuser, and as is often the case, the perpetrator and the victim. In short, Illinois lawmakers

should expand the language of Illinois Supreme Court Rule 243 to include not only civil trials

but criminal trials, as well. Another alternative, however, could be to make an entirely separate,

but yet still similar rule for criminal trials, as several other states around the country have

already done.283 Either way, it would be most advisable for the new rule to also have new

procedural safeguards and guidelines to follow.

Finally, perhaps the judge presiding over the trial in The Good Wife episode mentioned earlier

best stated the reasoning for juror questioning: “You can never have too many knights in the

quest for justice.”284 As argued throughout this Note, never is the quest for justice more

important than when used to determine the fate of an accused person’s life and liberty. For this

reason, Illinois should follow the wise example of states such as Arizona, Colorado, Hawaii,

Idaho, New Hampshire, Tennessee, Utah, and Washington (to name a few),285 as well as the

expert advice of federal judges and attorneys in Illinois,286 and earnestly consider how a

juror-questioning rule for criminal cases will positively impact the pursuit of justice in criminal

trials.

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Footnotes

J.D. candidate, Class of 2014, University of Illinois College of Law. B.S. 2011, University of Illinois. I would like to specially

thank Stephen R. Kaufmann of HeplerBroom, LLC, and my brother, Jason D. Sweat, for the inspiration they gave me to write on

this topic. I am incredibly grateful to the Honorable James F. Holderman, the Honorable David R. Herndon, the Honorable Sue E.

Myerscough, the Honorable Warren D. Wolfson, the Honorable Ronald D. Spears, as well as attorneys Jon Gray Noll, Thomas A.

Bruno, and--again-- Stephen R. Kaufmann, for their time in allowing me to interview them for this Note and for their invaluable

insights on juror questioning. I would also like to thank the entire editorial and support staff of the University of Illinois Law

Review, and specifically editors Amy Timm, Dave Cummings, Marissa Meli, Jackie Waldman, Whitney Merrill, Benjamin

Sunshine, and Drew Barrios, for their helpful suggestions and comments throughout all of the writing process, beginning to end.

Finally, I would like to thank my parents and family for their last-minute proofreading, and more importantly, their encouragement

and support.

The Good Wife: And the Law Won (CBS television broadcast Oct. 7, 2012).

Id.

Nicole L. Mott, The Current Debate on Juror Questions: “To Ask or Not to Ask, That Is the Question,” 78 Chi.-Kent L. Rev. 1099

(2003).

Howard Zimmerle, New Illinois Rule 24-Jurors Can Ask Questions!, Quad Cities Inj. Laws. (Apr. 3, 2012, 12:50 PM), http://

qcinjurylawyers.wordpress.com/2012/04/03/468/.

Ill. Sup. Ct. R. 243.

See Jurisdiction-by-Jurisdiction Rules for Juror Questions to Witnesses, Am. Judicature Soc’y (2012),

https://www.ajs.org/judicial-administration/jury-center/jury-system-overview/jury-improvement-efforts/improving-trials/juror-ques

tions-witnesses/juror-questions-statutes/ (last visited Aug. 31, 2013) [hereinafter Jurisdiction-by-Jurisdiction Rules].

Chris Dettro, Proposal Would Allow Jurors to Ask Questions in Some Trials, St. J. Reg. 1 (May 8, 2011, 11:00 PM),

http://www.sj-r.com/top-stories/x173162607/Proposal-would-allow-urors-to-ask-questions-in-some-trials (last updated May 9,

2011, 6:13 AM).

See Michael A. Wolff, Juror Questions a Survey of Theory and Use, 55 Mo. L. Rev. 817, 821 (1990) (“Those in favor of juror

interrogation focus on the jury’s role as the finder of fact and discerner of truth; these advocates view juror questions as a means of

improving the jury’s information and understanding of the issues it must decide. The benefit of juror interrogation can be

summarized in the words of one advocate: ‘the better informed the jury, the more likely it is to render a just verdict.’ For juror

question advocates, the pragmatic benefits of better-informed juries, and thus of better-considered verdicts, exceed the theoretical

risks of altering a settled and static system of trial procedure.”).

Eugene A. Lucci, The Case for Allowing Jurors to Submit Written Questions, 89 Judicature 16, 16 (2005), available at http://

www.lakecountyohio.gov/Portals/18/Judge%20Lucci/Selected%20Articles/Judicature% 2016-19_Lucci_891.pdf.

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 Cornell L. Rev.

497, 591 (1990) (quoting 3 William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of

1765-1769, at 373 (Univ. of Chi. Press 1979)).

Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, in 44 Hastings L.J. 579, 585 (1992),

available at http://cyber.law.harvard.edu/~nesson/American_Jury.rtf.

Landsman, The Rise of the Contentious Spirit, supra note 11, at 505.

See Early History of the U.S. Court System - Part 1, Tijernia Legal Firm P.C. (Sept. 10, 2012),

http://www.tlegalfirm.com/2012/09/early-history-of-the-u-s-court-system-%E2%80%93-part-1/ (“Because the original Thirteen

Colonies had followed English legal precedent, they already had their own comprehensive court system in place.”).

Lucci, supra note 10, at 16.

See State v. Kendall, 57 S.E. 340, 341 (N.C. 1907) (“It is objected to the validity of the trial that one of the jurors was permitted to

ask a question of a witness who was then upon the stand giving his testimony. There is no reason that occurs to us why this should

not be allowed in the sound legal discretion of the court, and where the question asked is not in violation of the general rules

established for eliciting testimony in such cases. This course has always been followed without objection so far as the writer has

observed, in the conduct of trials in our superior courts, and there is not only nothing improper in it when done in a seemly manner

and with the evident purpose of discovering the truth, but a juror may, and often does, ask a very pertinent and helpful question in

furtherance of the investigation. Authority is also in favor of the court’s action in permitting the question.”).

Lucci, supra note 10, at 16-17.

Id. at 16.

Wolff, supra note 9, at 820.

Robert Augustus Harper & Michael Robert Ufferman, Jury Questions in Criminal Cases Neutral Arbiters or Active Interrogators?,

Fla. B. J., Feb. 2004, at 8, 8.

Id.

Wolff, supra note 9, at 817-18.

Id.

See Lucci, supra note 10, at 16 (“As the English court system evolved, more emphasis was placed on fair procedure. Defense

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

counsel played an increasing role, while the role of jurors as active participants diminished.”).

Harper & Ufferman, supra note 20, at 8.

Id.

See Laura Mansnerus, Under Fire, Jury System Faces Overhaul, N.Y. Times (Nov.

http://www.nytimes.com/1995/11/04/us/under-fire-jury-system-faces-overhaul.html?pagewanted=all&src=pm.

See Kirsten DeBarba, Note, Maintaining the Adversarial System: The Practice of Allowing Jurors to Question Witnesses During

Trial, 55 Vand. L. Rev. 1521, 1531 (2002) (“In fact, some members of the American public have become so disillusioned with the

current jury system that they refuse to participate in the process. In California, the Blue Ribbon Commission on Jury System

Improvement announced that the state jury system was ‘in crisis’ and ‘on the brink of collapse.’ The commission found that the

public expressed their dissatisfaction with the current jury system by refusing to appear for jury duty when called for service.”)

(citations omitted).

See Mansnerus, supra note 27 (“Responding to a growing public disenchantment with juries after a raft of unpopular verdicts, state

legislatures and court systems across the nation are starting to rewrite the rules of the jury system. Some states have already

changed the way juries operate. Starting next month, Arizona will permit jurors to take notes, question witnesses through the judge

and, in some cases, discuss evidence while a trial is in progress. Delaware is considering a similar list of proposals.”).

See DeBarba, supra note 28, at 1531 (“The debate over the role of the jury has led many courts, commentators, and legislatures to

propose and implement practices to improve the efficient functioning of the jury. One proposal would permit jurors to question

witnesses during trial.”).

See Lucci, supra note 10, at 19 (“Questioning facilitates juror understanding, attentiveness, and overall satisfaction, improves

communications, and corrects erroneous juror beliefs.”).

See DeBarba, supra note 28, at 1531 (noting that legislatures have begun proposing and implementing innovative practices such as

juror questioning in order “to improve the efficient functioning of the jury ...during trial”).

See infra Parts II.C.2-3.

Williams Venker & Sanders, Illinois Supreme Court Rule 243-Written Juror Questions Directed to Witnesses, jdSupra Law News

(July 7, 2012), http://www.jdsupra.com/legalnews/illinois-supreme-court-rule-243-writte-78478/.

Id. The content of Rule 243 reads as follows: “(a) Questions Permitted. The court may permit jurors in civil cases to submit to the

court written questions directed to witnesses. (b) Procedure. Following the conclusion of questioning by counsel, the court shall

determine whether the jury will be afforded the opportunity to question the witness. Regarding each witness for whom the court

determines questions by jurors are appropriate, the jury shall be asked to submit any question they have for the witness in writing.

No discussion regarding the questions shall be allowed between jurors at this time; neither shall jurors be limited to posing a single

question nor shall jurors be required to submit questions. The bailiff will then collect any questions and present the questions to the

judge. Questions will be marked as exhibits and made a part of the record. (c) Objections. Out of the presence of the jury, the judge

will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the

question. If any objections are made, the court will rule upon them at that time and the question will be either admitted, modified,

or excluded accordingly. (d) Questioning of the Witness. The court shall instruct the witness to answer only the question presented,

and not exceed the scope of the question. The court will ask each question; the court will then provide all counsel with an

1995),

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opportunity to ask follow-up questions limited to the scope of the new testimony. (e) Admonishment to Jurors. At times before or

during the trial that it deems appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for

the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules

of evidence that govern the case.” Ill. Sup. Ct. R. 243.

See Ted A. Donner, New Rule 243 Allows Jurors to Ask Questions of Witnesses in Civil Cases, 24 DuPage County B. Ass’n Brief

18, 18 (2012), available at http://www.dcbabrief.org/vol240612art1.html (“Prior to the enactment of new Illinois Supreme Court

Rule 243, the practice... had been used in a number of state court proceedings in Illinois (usually in cases in which the parties

agreed to its use). The new rule, though, both provides for specific practices to be followed in such cases and, as a practical matter,

brings a unique innovation to the fore which, previously, did not warrant a great deal of attention in Illinois.”).

Stephen R. Kaufmann & Michael P. Murphy, Juror Questions During Trial: An Idea Whose Time Has Come Again, 99 Ill. B.J.

294 (2011), available at http://www.isba.org/ibj/2011/06/jurorquestionsduringtrialanideawhos.

For a discussion of the potential advantages and disadvantages of juror questioning, including those identified in Judge Wolfson’s

article, see infra Part III.A.

Kaufmann & Murphy, supra note 37.

Dettro, supra note 8, at 1.

Id.

See id. at 1-2.

Id.

Nancy S. Marder, Answering Jurors’ Questions: Next Steps in Illinois, 41 Loy. U. Chi. L.J. 727, 749 (2010).

Id. at 749.

Dettro, supra note 8, at 1.

Id.

Kaufmann & Murphy, supra note 37; see also Dettro, supra note 37, at 1.

Dettro, supra note 5, at 1.

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Specifically, the Committee Comments for Rule 243 consist of the following remarks: “This rule gives the trial judge discretion in

civil cases to permit jurors to submit written questions to be directed to witnesses--a procedure which has been used in other

jurisdictions to improve juror comprehension, attention to the proceedings, and satisfaction with jury service. The trial judge may

discuss with the parties’ attorneys whether the procedure will be helpful in the case, but the decision whether to use the procedure

rests entirely with the trial judge. The rule specifies some of the procedures the trial judge must follow, but it leaves other details to

the trial judge’s discretion.” Ill. Sup. Ct. R. 243.

Id.

Telephone Interview with Stephen Kaufmann, Partner, HeplerBroom LLC (Mar. 4, 2013).

Harper & Ufferman, supra note 20, at 8.

See Laurie Forbes Neff, The Propriety of Jury Questioning: A Remedy for Perceived Harmless Error, 28 Pepp. L. Rev. 437, 453

(2001).

Id.

Corey Raines, A New Role for

http://blog.wexlerwallace.com/?p=1373.

Peter F. Vaira, Questions from Jurors a Practice Slowly Gaining Acceptance,

http://www.vairariley.com/CM/Custom/Questions-from-Jurors.html (last visited Aug. 31, 2013).

Alayna Jehle & Monica K. Miller, Controversy in the Courtroom: Implications of Allowing Jurors to Question Witnesses, 32 Wm.

Mitchell L. Rev. 27, 53-54 (2005).

Mott, supra note 4, at 1100. Note that Mott’s article uses these three categorical labels only to describe state approaches. I find,

however, that these labels, however, are fitting for federal approaches as well and have thus expanded Mott’s classifications to

include federal jurisdictions in addition to state jurisdictions. See also State v. Zima, 468 N.W.2d 377, 379 (Neb. 1991) (outlining

similar jurisdictional categories and providing a detailed overview of the case law supporting them: “Although the issue of juror

questioning of witnesses is one of first impression in Nebraska, it is not without precedent. One group of jurisdictions, although it

may discourage juror questioning of witnesses, holds that allowing the practice is within the discretion of the trial court”) (citations

omitted).

Jurisdiction-by-Jurisdiction Rules, supra note 7 (noting that Mississippi and Nebraska prohibit jurors from questioning witnesses in

both criminal and civil cases).

Id.

Zima, 468 N.W.2d at 380.

Jurors

Civil

Trials,

Wexler

Wallace

Blog

(June

2012),

Vaira

Riley,

P.C.,

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

Id. (“We therefore rule that in the trial courts of this state, juror questioning of witnesses is prohibited.”).

Id. at 379-80 (citations omitted).

Id. at 380.

Id.

Neff, supra note 54, at 461.

Zima, 468 N.W.2d at 380 (Shanahan, J., concurring).

734 So.2d 985, 990 (Miss. 1998).

Id.

See Jehle & Miller, supra note 58, at 48-49.

Jurisdiction-by-Jurisdiction Rules, supra note 7.

Id.

Id.; see also A. Barry Capello & G. James Strenio, Juror Questioning: The Verdict Is in After Years of Debate, Courts Are

Increasingly Allowing Jurors to Question Witnesses, Following Procedural Safeguards, 36 Trial 44, 46 (2000).

646 N.W.2d 204, 213 (Minn. 2002).

Id. at 214.

Id. at 213 (“In sum, our concern about allowing jurors to question witnesses is two-fold. First, the opportunity to pose questions

may prevent jurors from keeping an open mind until all the evidence has been presented. Second, the opportunity to pose questions

may upset the burden of production and persuasion in a criminal trial. We believe the passive-juror system minimizes these

problems because jurors are (1) not enticed to form hypotheses or judgments about missing testimony; and are (2) prevented from

affecting the production of evidence.”).

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

See supra notes 60-61, 72-73 and accompanying text.

See infra Parts II.C.2-3.

See infra Part II.C.3.

Jehle & Miller, supra note 58, at 53-54.

Emma Cano, Speaking Out: Is Texas Inhibiting the Search for Truth by Prohibiting Juror Questioning of Witnesses in Criminal

Cases?, 32 Tex. Tech L. Rev. 1013, 1018 (2001).

United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir. 1979).

Id.

Cano, supra note 82, at 1017.

United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986); Cano, supra note 82, at 1019.

United States v. Sutton, 970 F.2d 1001, 1005 (1st Cir. 1992) (stating that “a judge who decides to utilize it should take pains to

lessen its inherent dangers by implementing a series of prophylactic measures”).

Cano, supra note 82, at 1024-25.

See Kaufmann & Murphy, supra note 37.

See id.

Telephone Interview with the Honorable James F. Holderman, former Chief Justice, U.S. Dist. Court for the N. Dist. of Ill. (Mar.

8, 2013).

Telephone Interview with the Honorable David R. Herndon, Chief Justice, U.S. Dist. Court for the S. Dist. of Ill. (Mar. 4, 2013).

Lucci, supra note 10, at 16.

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

See Marder, supra note 44, at 747 (“[M]ost states simply permit the practice but give the trial judge discretion in deciding when to

use it.”).

See id.

See supra Part I.

See Jurisdiction-by-Jurisdiction Rules, supra note 7.

See id.

100

See id.

101

See id.

102

Id.

103

That is, four states (Minnesota, Mississippi, Nebraska, and Texas) prohibit all juror questions in criminal trials. Some scholars,

however, also include Georgia as one of these states because it prohibits the practice of asking oral questions directly to witnesses

in criminal trials. See id. For an example of an article that categorizes Georgia as a state which prohibits juror questioning, see W.

Gardner Shelby, Efrain De La Fuente Says Jurors in Most States, But Not Texas, Can Ask Questions of Witnesses in Trials,

PolitiFact

(Nov.

29,

2011),

http://

www.politifact.com/texas/statements/2012/jan/22/efrain-de-la-fuente/efrain-de-la-fuente-says-jurors-most-states-not-te/.

104

See Shelby, supra note 103.

105

See Jurisdiction-by-Jurisdiction Rules, supra note 7.

106

See id.

107

See Shelby, supra note 103.

108

See Jurisdiction-by-Jurisdiction Rules, supra note 7.

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

109

See id.

110

Id.

111

See id.

112

Id.

113

See id.

114

See id.

115

See id.

116

See id.

117

See id.

118

Ill. Sup. Ct. R. 243.

119

Jehle & Miller, supra note 58, at 53.

120

Brian Skoloff, Arizona Murder Defendant Jodi Arias Faces More Jury Questions, Under Fire, Jury System Faces Overhaul, San

Jose

Mercury

News

(Mar.

2013),

http://www.mercurynews.com/nation-world/ci_22738865/arizona-murder-defendant-jodi-arias-faces-more-jury (“Arizona is one of

just a few states where jurors in every trial can ask questions of witnesses. In many other states, it’s up to individual judges to

decide whether it’s permissible.”).

121

David Lohr, Jodi Arias Trial: “Why Should We Believe You Now?,” Huffington Post (Mar. 7, 2013),

http://www.huffingtonpost.com/2013/03/07/jodi-arias-why-should-we-believe-you_n_2833118.html (“Arizona is one of three

states that allow jurors to pose questions to witnesses after prosecution and defense lawyers have finished.”); Kaufmann &

Murphy, supra note 37, at 296.

122

See Jurisdiction-by-Jurisdiction Rules, supra note 7.

123

See, e.g., Lohr, supra note 121; Skoloff, supra note 120.

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

124

Skoloff, supra note 120.

125

Arias

Trial:

Grade

the

Jury,

HLN

Vote

http://www.hlntv.com/poll/2013/03/07/arias-trial-grade-jury/results.

126

Cappello & Strenio, supra note 74, at 48.

127

Katherine O’Malley, Illinois Adopts Rule Allowing Jurors to Question Witnesses, Subrogation & Recovery L. Blog (June 26,

2012),

http://

www.subrogationrecoverylawblog.com/2012/06/articles/subro-roundup/illinois-adopts-rule-allowing-jurors-to-question-witnesses/.

128

See Marder, supra note 44, at 728 (“[T]he practice provides jurors with many benefits, from clearing up juror confusion at the time

it arises to helping jurors pay attention and remain engaged in the trial process.”).

129

See Lisa M. Harms, Comment, The Questioning of Witnesses by Jurors, 27 Am. U. L. Rev. 127, 133 (1977) (“In addition,

allowing questions could improve jury duty from a juror’s point of view. Greater participation could make serving as a juror more

interesting.”).

130

Ellen Chilton & Patricia Henley, Pub. Law Research. Inst., Improving the Jury System: Helping Jurors Understand the Evidence

and the Law 4 (2004), available at http://gov.uchastings.edu/public-law/docs/plri/juryinst.pdf.

131

Harper & Ufferman, supra note 20, at 8.

132

DeBarba, supra note 28, at 1532.

133

Harper & Ufferman, supra note 20, at 8.

134

Harms, supra note 129, at 131.

135

See DeBarba, supra note 28, at 1532.

136

Id.

137

Marder, supra note 44, at 745.

138

See id.

(Mar.

2013,

10:52

PM),

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

139

See id. at 745-46.

140

Nancy S. Marder, The Jury Process 113 (2005) (citation omitted).

141

See Lucci, supra note 10, at 18 (“If the jury is confused about the evidence, then jurors should be allowed to ask questions designed

to alleviate the confusion.... The idea that justice is somehow served by a confused jury that is not allowed to express its confusion

and seek clarity of understanding is flat wrong. If the failure to persuade results from curable juror confusion, then the party with

the burden of proof is not the only one who suffers. The entire community suffers because a miscarriage of justice has occurred....

To say that the party with the burden of proof must make its points clear or suffer the loss at trial ignores the fact that a jury may

just as easily rule in favor of the opposing party (the one without the burden) if the jurors are confused about the evidence.”).

142

Marder, supra note 140, at 112.

143

Differences Between Civil and Criminal Trials, Univ. of Tex., http://www.laits.utexas.edu/gov310/JU/civcrim/index.html (last

visited Aug. 31, 2013).

144

Id.

145

See id.

146

See id.

147

Differences

Between

Criminal

and

Civil

Litigation

Cases,

LawFirms.com,

http://www.lawfirms.com/resources/lawsuits-and-disputes/litigation/differences-between-criminal-and-civil-litigation.htm

(last

visited Aug. 31, 2013).

148

Differences Between Civil and Criminal Trials, supra note 143.

149

See Jehle & Miller, supra note 58, at 40 (“The main concerns stem from the potential threat to the adversarial system, in which

jurors’ roles may be transformed from neutral fact-finders to biased advocates.”).

150

Capello & Strenio, supra note 74, at 45-46 (“But critics... warn of disadvantages. They contend that juror questioning transforms

jurors from neutral and passive arbiters into partial and active adversaries or advocates....”).

151

Harper & Ufferman, supra note 20, at 12.

152

Chilton & Henley, supra note 130, at 3-4 (noting the following as a few “potential negative consequences” of juror questioning: (1)

“Juror questioning may create a bias among jurors that would interfere with the constitutional requirements of due process and a

fair trial”; (2) “Juror questioning may cause jurors to become overly involved and lose their objectivity and impartiality”; (3)

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

“Jurors might place too much emphasis on the answers to their own questions”; and (4) “An individual juror’s question and the

answer elicited may take on a stronger significance to the jury than those questions and answers presented and received in the

normal adversarial manner”).

153

See id.

154

See Lucci, supra note 10, at 18 (“[F]ormulating questions invites a juror to begin deliberating before all the evidence has been

submitted.”).

155

Id.

156

Id. (“In fact, group deliberations cannot take place effectively unless individual jurors have begun to formulate questions in their

minds about the evidence.”).

157

Telephone Interview with the Honorable David R. Herndon, Chief Justice, U.S. Dist. Court for the S. Dist. of Ill. (Mar. 4, 2013).

158

Telephone Interview with the Honorable James F. Holderman, former Chief Justice, U.S. Dist. Court for the N. Dist. of Ill. (Mar.

8, 2013).

159

Id.

160

Chilton & Henley, supra note 130.

161

Id.

162

Id.

163

Id. (noting that “live testimony is inherently unpredictable” and that “[i]f testimony in court were so predictable, then trial counsel

would have no need for carefully-indexed and cross-referenced depositions, and all witnesses would testify via pre-recorded

video”).

164

Id. (noting that “[s]ome advocates have argued that allowing jurors to submit written questions is inefficient and will result in

needless interruption and delay”).

165

Id.

166

Judge John R. Stegner, Why I Let Jurors Ask Questions in Criminal Trials, 40 Idaho L. Rev. 541, 552 (2004).

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

167

Williams v. Florida, 399 U.S. 78, 113 (1970) (Black, J., concurring in part and dissenting in part).

168

Thomas Regnier, Restoring the Founders’ Ideal of the Independent Jury in Criminal Cases, 51 Santa Clara L. Rev. 775, 837

(2011).

169

Harper & Ufferman, supra note 20, at 10 (citing State v. Costello, 646 N.W.2d 204, 210 (Minn. 2002)).

170

See id.

171

Id. (citing Costello, 646 N.W.2d at 211).

172

Id.

173

Id.(citing Costello, 646 N.W.2d at 211-12).

174

See id.

175

Id.

176

Id. (quoting Costello, 646 N.W.2d at 211-12).

177

See, e.g., Lucci, supra note 10, at 19.

178

For a discussion on the procedural safeguards associated with juror questioning of witnesses, see infra Part III.D.

179

Lucci, supra note 10, at 19.

180

See Harms, supra note 129, at 140 (“A judge has a right to question and even to call witnesses on his own motion to elicit truth and

clarify facts for the jury.”).

181

See id. at 139.

182

See id. at 141 (noting that “an experienced judge, familiar with various types of trials, could overlook simple or common matters

that perplex novice jurors” and that “more technical or complex aspects of a trial might be easily understood by a judge but

incomprehensible to jurors”).

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

183

Lucci, supra note 10, at 18.

184

Stegner, supra note 166, at 547 (quoting Wolfe v. State, 791 P.2d 26, 29-30 (Idaho Ct. App. 1990).

185

See generally Jurisdiction-by-Jurisdiction Rules, supra note 7 (listing state juror-questioning rules, in which most of the rules assert

that the court should ask the juror questions to the witnesses).

186

Harms, supra note 129, at 146.

187

Id.

188

Id. at 147.

189

Id. (“This goal of victory may be inconsistent with a search for truth since ‘frequently the partisanship of the lawyers blocks the

uncovering of vital testimony in a way that distorts it.”’) (citation omitted).

190

Marvin E. Frankel, The Adversary Judge, 54 Tex. L. Rev. 465, 470 (1976).

191

Capello & Strenio, supra note 74, at 48.

192

Id.

193

The alternative to requiring jurors to submit written questions would be to allow jurors to ask their questions orally, and thus

directly, to the witnesses. Due to the many potential dangers that can arise from jurors speaking directly to witnesses, however, oral

questioning is a method that most courts do not allow. See Jurisdiction-by-Jurisdiction Rules, supra note 7 (listing state

juror-questioning rules, in which most of the rules assert that the jurors’ questions should be in writing).

194

Marder, supra note 140, at 111.

195

Ill. Sup. Ct. R. 243(a).

196

Ill. Sup. Ct. R. 243(b).

197

See Am. Bar Ass’n Am., Bar. Ass’n Principles for Juries and Jury Trials 18, 92 (2005) (“[T]he court may pose the question to the

witness, or permit a party to do so ....”) [hereinafter Principles for Juries & Jury Trials].

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

198

See Jurisdiction-by-Jurisdiction Rules, supra note 7 (listing state juror-questioning rules, in which most of the rules assert that the

court should ask the juror questions to the witnesses).

199

See id. (listing state juror-questioning rules, in which most of the rules assert that counsel should have an opportunity to make

objections to juror questions).

200

See id. (listing Ohio’s juror-questioning rule, which specifically suggests the use of sidebar discussions for making objections to

juror questions).

201

See id. (listing state juror-questioning rules, in which most of the rules assert that objections shall be made outside of the presence

of the jury).

202

Principles for Juries and Jury Trials, supra note 197, at 24.

203

Telephone Interview with the Honorable James F. Holderman, former Chief Justice, U.S. Dist. Court for the N. Dist. of Ill. (Mar.

8, 2013).

204

Marder, supra note 140, at 111.

205

Telephone Interview with the Honorable Warren D. Wolfson, former Judge, Circuit Court of Cook Cnty. & Ill. First Dist.

Appellate Court, 1st Div. (Mar. 5, 2013).

206

Dettro, supra note 8, at 2. For instance, a Springfield, Illinois attorney named Jon Gray Noll, of Noll Law Office, LLC, who is

familiar with the practice of juror questioning, believes that juror questioning should be looked at in criminal cases as well as civil

cases, because “[t]he whole purpose is to search for the truth, and the rules of evidence hinder that at times.” Id.

207

See Kaufmann & Murphy, supra note 37.

208

Telephone Interview with the Honorable David R. Herndon, Chief Justice, U.S. Dist. Court for the S. Dist. of Ill. (Mar. 4, 2013);

Telephone Interview with the Honorable James F. Holderman, former Chief Justice, U.S. Dist. Court for the N. Dist. of Ill. (Mar.

8, 2013).

209

See Kaufmann & Murphy, supra note 37.

210

Telephone Interview with the Honorable James F. Holderman, former Chief Justice, U.S. Dist. Court for the N. Dist. of Ill. (Mar.

8, 2013).

211

Telephone Interview with the Honorable James F. Holderman, former Chief Justice, U.S. Dist. Court for the N. Dist. of Ill. (Mar.

8, 2013).

212

Id.

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

213

Id.

214

Id.

215

Id.

216

Id.

217

Telephone Interview with the Honorable David R. Herndon, Chief Justice, U.S. Dist. Court for the S. Dist. of Ill. (Mar. 4, 2013).

218

Id.

219

Id.

220

Id.

221

Id.

222

Id.

223

Id.

224

Id.

225

Marder, supra note 140, at 114 (“Interestingly, the practice of allowing jurors to ask questions, like the practice of permitting jurors

to take notes, gained support from judges and lawyers alike when they actually had experience with it in the courtroom.”).

226

Id.

227

Telephone Interview with Stephen Kaufmann, Partner, HeplerBroom LLC (Mar. 4, 2013).

228

Id.

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

229

Id.

230

Id.

231

Id.

232

Id.

233

Id.

234

Telephone Interview with the Honorable Warren D. Wolfson, former Judge, Circuit Court of Cook Cnty. & Ill. 1st Dist. Appellate

Court, 1st Div. (Mar. 5, 2013).

235

Id.

236

Id.

237

Telephone Interview with the Honorable Ronald D. Spears, Judge, Ill. 4th Judicial Circuit Court (Mar. 4, 2013).

238

Id.

239

Id.

240

Id.

241

Id.

242

Id.

243

Id.

244

Judge Myerscough also previously served as the Chief Judge of the Illinois Seventh Judicial Circuit and Presiding Judge of

Sangamon County before being elected to the Fourth District Appellate Court.

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

245

Telephone Interview with the Honorable Sue E. Myerscough, Fed. Judge, U.S. Dist. Court for the Cent. Dist. of Ill. (Mar. 6, 2013).

246

Id.

247

Id.

248

Id.

249

E-mail from the Honorable Sue E. Myerscough, Fed. Judge, U.S. Dist. Court for the Cent. Dist. Of Ill. to author (Aug 15, 2013,

09:32 AM CST) (on file with author).

250

Id.

251

Marder, supra note 140, at 112.

252

E-mail from Thomas A. Bruno, Attorney, Bruno Law Offices to author (Mar. 7, 2013, 06:09 PM CST) (on file with author).

253

Id.

254

Id.

255

Id.

256

Id.

257

Telephone Interview with Jon Gray Noll, Attorney, Springfield, Ill. (Mar. 4, 2013).

258

Id.

259

Id.

260

Lucci, supra note 10, at 19 (explaining that “[t]he search for truth is central to the legitimacy of a trial’s function,” and thus, “[i]f

the trial does not effectively develop the facts and comprehensibly present them to the factfinder, justice is serendipitous”).

JUROR QUESTIONING OF WITNESSES IN CRIMINAL..., 2014 U. Ill. L. Rev. 271

261

Id. at 16.

262

Regnier, supra note 168, at 829.

263

Id. at 852.

264

Andrea Krebel, Juror Questions: Why Attorneys Should Embrace Allowing Jurors to Ask Questions of Witnesses, The Jury Expert

(May

29,

2012),

http://www.thejuryexpert.com/2012/05/juror-questions-why-attorneys-should-embrace-allowing-jurors-to-ask-questions-of-witness

es.

265

Id.

266

Kaufmann & Murphy, supra note 37 (quoting practitioner Bruce Praff, who co-authored an article on juror questioning entitled

“The Right to Submit Questions to Witnesses” with John L. Stalmack and Nancy S. Marder in May of 2009).

267

See Lucci, supra note 10, at 16.

268

Marder, supra note 44, at 747.

269

See Ill. Sup. Ct. R. 243 (“(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written

questions directed to witnesses. (b) Procedure. Following the conclusion of questioning by counsel, the court shall determine

whether the jury will be afforded the opportunity to question the witness. Regarding each witness for whom the court determines

questions by jurors are appropriate, the jury shall be asked to submit any question they have for the witness in writing. No

discussion regarding the questions shall be allowed between jurors at this time; neither shall jurors be limited to posing a single