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

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

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

Copyright (c) 2014 Board of Trustees of the University of Illinois; Kristen L. Sweat
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.
(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 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
a1

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.

1

The Good Wife: And the Law Won (CBS television broadcast Oct. 7, 2012).

2

Id.

3

Id.

4

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).

5

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/.

6

Ill. Sup. Ct. R. 243.

7

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].

8

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).

9

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.”).

10

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.

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

11

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)).

12

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.

13

Landsman, The Rise of the Contentious Spirit, supra note 11, at 505.

14

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.”).

15

Lucci, supra note 10, at 16.

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.”).

17

Lucci, supra note 10, at 16-17.

18

Id. at 16.

19

Wolff, supra note 9, at 820.

20

Robert Augustus Harper & Michael Robert Ufferman, Jury Questions in Criminal Cases Neutral Arbiters or Active Interrogators?,
Fla. B. J., Feb. 2004, at 8, 8.

21

Id.

22

Wolff, supra note 9, at 817-18.

23

Id.

24

See Lucci, supra note 10, at 16 (“As the English court system evolved, more emphasis was placed on fair procedure. Defense

© 2014 Thomson Reuters. No claim to original U.S. Government Works.

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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.”).
25

Harper & Ufferman, supra note 20, at 8.

26

Id.

27

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.

28

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).

29

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.”).

30

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.”).

31

See Lucci, supra note 10, at 19 (“Questioning facilitates juror understanding, attentiveness, and overall satisfaction, improves
communications, and corrects erroneous juror beliefs.”).

32

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”).

33

See infra Parts II.C.2-3.

34

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/.

35

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

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4,

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.
36

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.”).

37

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.

38

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.

39

Kaufmann & Murphy, supra note 37.

40

Dettro, supra note 8, at 1.

41

Id.

42

See id. at 1-2.

43

Id.

44

Nancy S. Marder, Answering Jurors’ Questions: Next Steps in Illinois, 41 Loy. U. Chi. L.J. 727, 749 (2010).

45

Id. at 749.

46

Dettro, supra note 8, at 1.

47

Id.

48

Kaufmann & Murphy, supra note 37; see also Dettro, supra note 37, at 1.

49

Dettro, supra note 5, at 1.

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50

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.

51

Id.

52

Telephone Interview with Stephen Kaufmann, Partner, HeplerBroom LLC (Mar. 4, 2013).

53

Harper & Ufferman, supra note 20, at 8.

54

See Laurie Forbes Neff, The Propriety of Jury Questioning: A Remedy for Perceived Harmless Error, 28 Pepp. L. Rev. 437, 453
(2001).

55

Id.

56

Corey Raines, A New Role for
http://blog.wexlerwallace.com/?p=1373.

57

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).

58

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).

59

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).

60

Jurisdiction-by-Jurisdiction Rules, supra note 7 (noting that Mississippi and Nebraska prohibit jurors from questioning witnesses in
both criminal and civil cases).

61

Id.

62

Zima, 468 N.W.2d at 380.

Jurors

in

Civil

Trials,

Wexler

Wallace

© 2014 Thomson Reuters. No claim to original U.S. Government Works.

Blog

(June

4,

2012),

Vaira

&

Riley,

P.C.,

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

63

Id. (“We therefore rule that in the trial courts of this state, juror questioning of witnesses is prohibited.”).

64

Id. at 379-80 (citations omitted).

65

Id. at 380.

66

Id.

67

Neff, supra note 54, at 461.

68

Zima, 468 N.W.2d at 380 (Shanahan, J., concurring).

69

734 So.2d 985, 990 (Miss. 1998).

70

Id.

71

See Jehle & Miller, supra note 58, at 48-49.

72

Jurisdiction-by-Jurisdiction Rules, supra note 7.

73

Id.

74

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).

75

646 N.W.2d 204, 213 (Minn. 2002).

76

Id. at 214.

77

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.”).

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78

See supra notes 60-61, 72-73 and accompanying text.

79

See infra Parts II.C.2-3.

80

See infra Part II.C.3.

81

Jehle & Miller, supra note 58, at 53-54.

82

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).

83

United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir. 1979).

84

Id.

85

Cano, supra note 82, at 1017.

86

United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986); Cano, supra note 82, at 1019.

87

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”).

88

Cano, supra note 82, at 1024-25.

89

See Kaufmann & Murphy, supra note 37.

90

See id.

91

Telephone Interview with the Honorable James F. Holderman, former Chief Justice, U.S. Dist. Court for the N. Dist. of Ill. (Mar.
8, 2013).

92

Telephone Interview with the Honorable David R. Herndon, Chief Justice, U.S. Dist. Court for the S. Dist. of Ill. (Mar. 4, 2013).

93

Lucci, supra note 10, at 16.

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94

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.”).

95

See id.

96

See supra Part I.

97

See Jurisdiction-by-Jurisdiction Rules, supra note 7.

98

See id.

99

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.

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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.
7,
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.

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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.

7,

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2013,

10:52

PM),

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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)

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“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).

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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

Se

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/federal_court_rules%3Ailcd%3A32f5e4da8bcdf855. Public record. Not legal advice.