Much has been written about the trial of Rogers Clemens. While I prefer not to second guess strategies or debate whether Clemens is really innocent as opposed to simply not guilty, I believe the coverage afforded this trial provides some insight and reminders for lawyers who try cases. One such thing was Judge Walton’s decision to allow jurors to propose questions to be asked of witnesses.
I have been involved in several trials in which a judge allowed the jurors to submit questions they would like to ask the witness. If handled properly (more on that in a moment) it can provide a good insight into what is on juror’s minds. This can allow lawyers for both sides an opportunity to address the line of thinking with future witnesses or address a proposed question in the closing argument. While the Judge may rule some questions should not be asked, those unasked questions still provide insight into what the jury (or at least one juror) would like to know.
As to the procedure to handle the proposed question I believe the Judge should act as gatekeeper in the eyes of the jurors. In other words, the questions should be gathered at the end of the examination by all attorneys and any objections should be addressed outside the hearing of the jury. If one party or another object to the question the party can make that objection to the Judge without running the risk that a juror will be offended by that party’s objection to their question. The only thing the jurors should hear, in my opinion, is 1) the question or 2) that the Judge has decided that the question should not be asked. While not fool-proof, this process seems to me to best protect the process when jurors are injected into situations dealing with rules of evidence and constitutional rights which are implicated by questioning witnesses.