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Questioning Witnesses

Jurors in most jurisdictions are not allowed to ask questions of a witness directly, in the presence of other jurors.{footnote}United States v. Polowichak, 783 F.2d 410 (4th Cir. 1986);  Gonzalez v. Prestress Engineering Corp., 194 Ill. App. 3d 819, 551 N.E.2d 793 (4th Dist. 1990); 31 ALR3d 872; 80 ALR Fed. 892.

But see United States v. Witt, 215 F.2d 580 (2d Cir. 1954).

Check United States v. Callahan, 588 F.2d 1078 (5th Cir. 1979).{/footnote}  This prohibition is particularly strong where the witness to be questioned is a criminal defendant.{footnote}United States v. Lewin, 900 F.2d 145 (8th Cir. 1990).{/footnote}  The trial court may in its discretion allow jurors to submit questions in writing to the court, which the judge can then pose to the witness if the questions are proper.{footnote}United States v. Polowichak, 783 F.2d 410 (4th Cir. 1986); United States v. Land, 877 F.2d 17 (8th Cir. 1989).{/footnote}

As Witnesses at Trial

Most states allow jurors to testify, whenever it so happens that they have relevant testimony, which is of course extremely rare.{footnote}Phillips v. Van Horn, 68 N.W. 452 (Iowa 1896).{/footnote}  In federal court and in some states, jurors may only testify (in person or by affidavit) if neither party objects.{footnote} [2529]  FRE 606; Cal. sec. 704.{/footnote}  The parties must be given an opportunity to object outside the jury’s presence.{footnote} [2530]  FRE 606(a).{/footnote}

Testifying as to their Verdict

The traditional rule has been that jurors may not testify (in person or by affidavit) as to their deliberations or "impeach their own verdict."  Verdicts could still be impeached where a non-juror (e.g., a bailiff) witnessed jury-tampering or other misconduct.  The trend is to allow jurors to testify as to any improprieties relating to the verdict.{footnote} [2531]  Cal. sec. 1150.{/footnote}  In federal court, juror testimony is allowed exclusively as to whether "extraneous prejudicial information" reached the jury or a juror was subject to "outside influence."{footnote} [2532]  FRE 606(b).  United States v. Marques, 600 F.2d 742 (9th Cir. 1979).{/footnote}  Evidence of such external influences is to be distinguished from testimony as to subjective matters such as the jurors’ mental processes, a fellow juror’s drunkeness or failure to follow the court’s instructions on the law.{footnote} [2533]  FRE 606(b)(Committee notes).{/footnote}  However, the federal rules also prevent testimony of open misconduct such as threats which occur inside the jury room.{footnote}Simmons First Nat’l Bank v. Ford Motor Co., 88 F.R.D. 344 (E.D. Ark. 1980).{/footnote}

Federal courts have not always adhered to the outside versus inside distinction of FRE 606(b).{footnote} [2535]  See, e.g., Sullivan v. Fogg, 613 F.2d 465 (2d Cir. 1980) (evidence of juror’s mental delusions admissible); [cases] (evidence of racial prejudice admissible).{/footnote}

The Privilege

Communications will not be deemed privileged where there is prima facie evidence they were in aid of a fraud or crime.{footnote}Clark v. United States, 289 U.S. 1 (1932)(juror prosecuted for criminal contempt for providing false answers in voir dire){/footnote}

Evidence Taken to the Jury Room

Generally all of the evidence which is introduced at trial may be taken by the jury into the jury room, with the exception of depositions.{footnote}Ill. Rev. Stat. ch. 110. & 2-1107(d).{/footnote}  See also DEPOSITIONS–Use by Jury.

Proceedings Outside Hearing of the Jury

Questions of admissibility should be determined outside the hearing of the jury.{footnote}FRE 103(c); 104(c).{/footnote}  See also CONFESSIONS–Voluntariness.

Determining Admissibility

The role, if any the jury has in determining the admissibility of evidence depends on the evidentiary question involved.  See AUTHENTICATION; CO-CONSPIRATOR STATEMENTS–Role of Jury; CONFESSIONS; EXPERT TESTIMONY–Burden of Qualifying; HEARSAY–Burden of Establishing Admissibility; PRIVILEGE– Burden of Proof; BEST EVIDENCE.  The modern practice, however, is to not allow the jury to decide questions of admissibility.{footnote}See Lego v. Twomey, 404 US 477, 489, 92 S.Ct. 619, 30 L. Ed. 2d 618 (1971) [quote][quoted in Santiago case]  See FRE 1008.
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