Does the jury have questions for the witness?

In June 2008, authorities discovered the body of 31-year-old Travis Alexander in his Mesa, Ariz., home. He had been repeatedly stabbed, his throat was slit and he was shot in the head. The primary suspect, his girlfriend Jodi Arias, said she had not seen Travis since April. Later, Arias claimed she had been with him when two men broke into their home, killing him and attacking her. Finally, she admitted killing him in self-defense. Given her conflicting accounts, it is little wonder that jurors had questions about what really happened the day Alexander died. What these jurors also had was the opportunity to ask their questions during the trial, a privilege not all states allow.

Arizona, Florida and Indiana are the only states that specifically endorse juror questions, but most states either give the judge discretion in allowing juror questions or lack a legal prohibition against such questions. Other states, including Georgia, Mississippi and Nebraska, forbid jurors from asking questions, citing a series of concerns. First, many states are concerned that juror questions add time to trials. Second, critics assert that allowing jurors to ask questions takes jurors out of their legal role of neutral and passive observers. In the Arias case, many juror questions focused on her questionable alibis, thus turning skeptical jurors into adversaries, rather than objective listeners. Third, juror questions may focus attention on specific case elements to the exclusion of other relevant evidence. Finally, juror questions may focus on irrelevant, extralegal or inadmissible evidence that was purposely excluded from trial. If a judge does not answer their queries, jurors may draw their own inferences about the question or feel angry at the lack of response.

How legitimate are these concerns? Case studies and empirical research show that the advantages of allowing juror questions often exceed any disadvantages. In CEATS Inc. v. Continental Airlines (2010), Judge Leonard Davis allowed jurors to question each witness. However, all questions were in writing, giving attorneys the opportunity to object to questions before they were asked in court. While Davis found that juror questions added around 15 minutes per witness, he noted that jurors seemed more invested in the proceedings.

Research shows that the assumption that jurors are passive information processors is incorrect, with jurors actively trying to fit trial evidence into a cohesive framework. The problem is that confusion may disrupt juror accuracy. Allowing jurors to ask questions may clear up their misconceptions, or at least give them an incentive to pay close attention to the trial, according to a 2010 article in the University of Chicago Law Review. In addition, research in the Vanderbilt Law Review by S.S. Diamond and colleagues dispels the notion that jurors focus too much attention on their own questions. After content coding deliberations in 50 civil trials, the researchers found that juries referred to only 11 percent of the questions they had posed. They also found that most juries rarely discussed unanswered questions during deliberations. Even if discussed, juries allotted little time to unanswered questions, and they rarely tried to generate their own inferences to the questions. On average, juror questions only added 30 minutes of trial time.

There are other benefits to juror questions. First, they give attorneys insight into the jurors' minds throughout the trial. After all, jurors may focus on trial material that attorneys deem unimportant, which can aid the attorney in either refocusing the jury or better exploring the evidence in question. Also, with trial information just a smartphone click away, allowing jurors to ask questions may prevent them from seeking out information on their own, keeping them focused on trial facts rather than extralegal information. The trend toward juror questions is only getting stronger as its benefits become clear, though close judicial scrutiny is still needed to make sure questions are relevant and informative, especially in high-profile trials.

Now the media-driven spotlight will turn to the James Holmes trial in Aurora, Colo., where, anticipating a lengthy and complex trial, the judge has decided to let jurors question witnesses. Whether those questions contain the same incredulity found in the Jodi Arias trial juror questions remains to be seen.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).