EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, May 9, 2011

We The Jury, Take 3: Illinois To Consider Codifying Procedure For Jury Questioning During Civil Trials

Last September, the Supreme Court of Illinois approved and promulgated Illinois Rules of Evidence, which took effect on January 1, 2011, making Illinois one of the last states to codify their rules of evidence. Now, if a proposal before the Illinois Supreme Court Rules Committee passes, Illinois will join other jurisdictions that have codified a procedure for permitting jurors to ask questions during (civil) trials.

The Illinois Supreme Court Rules Committee will hold a public hearing on Friday, May 20, 2011, beginning at 10 a.m., in Room C-500 at the Michael A. Bilandic Building, 160 N. LaSalle Street, in Chicago. One of the proposals on the public agenda hearing is Proposal 10-11 (P.R. 0184), which would create the following new Illinois Supreme Court Rule:

(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions to be posed to witnesses.

(b) Objections. Out of the presence of the jury but on the record, the court will read, or provide a copy of the questions to all counsel and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon the objections at that time and the question submitted by the juror will be either allowed to be read as written, allowed to be read as modified, or excluded.

(c) Questioning the Witness. If the question is allowed as written or as modified, the court or counsel will read the juror’s question to the witness in the jury’s presence, and the witness will answer the question. The court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.

(d) Admonishment to Jurors. At times before or during the trial that the court 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.

Anyone wishing to be scheduled to testify at the public hearing should advise the Committee in writing at the address noted above not later than Friday, May 13, 2011 at:

Supreme Court Rules Committee

c/o Administrative Office of the Illinois Courts

222 N. LaSalle Street, 13th Floor

Chicago, Illinois 60601

So, does the new rule make sense? I think so. Previously, I posted an entry about the Supreme Court of Florida mandating juror questioning in civil cases and allowing juror questioning in criminal cases. I then followed up that post with a second post about the first returns from Florida's new juror questioning framework. The results? Jurors rarely asked questions, but

according to both prosecutors and defense attorneys who have tried cases [where jurors asked questions], the process has improved the quality of the trials.  Meanwhile, jurors in those cases have claimed that the process has clarified issues and made their decisions easier

Admittedly, this is merely anecdotal evidence, but it at least somewhat confirms my initial inclination that jury questioning is a good idea. An article on the Illinois proposal offers another helpful anecdote:

[Attorney Stephen] Kaufmann said U.S. Judge Michael Mihm allowed juror questions at a recent trial in Peoria involving Illinois Department of Transportation employees who sued the state for wrongful termination. Kaufmann represented the state, which lost the case.

“They (the jurors) asked very insightful, intelligent questions,” he said.

The judge instructed jurors at the beginning of the case that there would be a process to ask questions, Kaufmann said.

“At conclusion of testimony, the judge asked if there were any questions,” he said. The juror would hand the written question to the bailiff, who would give it to the judge.

“There would be a sidebar conference on whether the question was appropriate, and the attorneys could object. The judge would ask the question, and the attorneys could follow up.”

In the Cook County case more than a decade ago, the process helped attorneys do a better job of answering questions that were on the minds of jurors, Kaufmann said.

“There was an expert witness who kept talking about various borings taken of the soil at a site that was alleged to have been contaminated,” Kaufmann said. “A juror asked the question, ‘Would somebody explain what a  boring is?’”

The article also cites to an article by Chicago-Kent law professor Nancy Marder, Answering Jurors’ Questions: Next Steps in Illinois, 41 Loy. U. Chi. L.J. 727 (2010), which contains a comprehensive analysis of the issue.




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