Instruction 1.180, Criminal Model Jury Instructions for Use in the District Court

QUESTIONS TO WITNESSES FROM JURORS

At the end of each witness’s testimony in this case, we are going to

give you as jurors the opportunity to suggest any questions that you would

like us to pose to that witness. The court officer will make some paper

available to you, and if you have such a question, you should write it down.

Please don’t discuss your questions among yourselves, but write down any

questions that you as an individual juror may have for the witness. And

please write your juror number on your questions, in case I need to ask you

to clarify them.

After the attorneys have questioned each witness, I will ask the court

officer to collect any written questions that you have and pass them to me.

I will then confer privately with the attorneys and determine whether the

question is permitted by our rules of evidence. If it is, I will then pose that

question to the witness.

Now there are a few things you must keep in mind about such

questions. First of all, you should limit your questions to important

matters, or something in a witness’s testimony that you think requires

clarification, so that we don’t get bogged down or distracted from the

central issues.

You also have to understand in advance that I may have to alter or

refuse a question if it does not comply with our rules of evidence. As I

have explained, those rules are not intended to keep information from you,

but to make sure that all the information you are given is presented in a

manner that you can fairly evaluate its worth. If I change, or I decline to

ask, a question that you have suggested, you must not be offended or hold

that against either of the parties.

Finally, you must not give the answers to your own questions any

disproportionate weight. You will have to consider all the evidence to

arrive at a true verdict.

“[T]he practice of allowing jurors to question witnesses has the potential for introducing prejudice,

delay, and error into the trial, and should be utilized infrequently and with great caution.” When a

judge allows such questioning, the judge must inform the parties and give them an opportunity to be

heard in opposition or to suggest the procedure to be followed. Before jurors are permitted to ask

questions, and again in the final instructions, the judge should inform jurors: (1) that they will be given

the opportunity to pose questions; (2) that such questions should be written down and passed to the

judge; (3) that such questions should be limited to important matters; (4) that the judge may have to

alter or refuse questions that do not comply with the rules of evidence; (5) that if a particular question

is refused or altered, the juror who posed the question must not be offended or hold that against either

party; and (6) that jurors must not give answers to their own questions a disproportionate weight. The

judge and the attorneys should discuss the questions, and any objections made and ruled on, outside

the hearing of the jury, before they are posed. To avoid delay, the judge might have all jurors submit

their questions at one time, at the conclusion of a witness’s examination. The parties should be given

the opportunity for further examination after juror questions have been answered. Commonwealth

v. Urena, 417 Mass. 692, 701-703, 632 N.E.2d 1200, 1206 (1994). See also United States v. Sutton,

970 F.2d 1001 (1st Cir. 1992).

“We adhere to the. . . procedures recommended in Commonwealth v. Urena. . . with some

modifications based on the growing experience with the practice in this and other jurisdictions. (1) The

judge should instruct the jury that they will be given the opportunity to pose questions to witnesses.

We suggest that the jury also be instructed not to let themselves become aligned with any party, and

that their questions should not be directed at helping or responding to any party. Rather, they must

remain neutral and impartial, and not assume the role of investigator or of advocate. (2) Jurors’

questions need not be limited to ‘important matters,’ as we stated in Urena, but may also seek

clarification of a witness’s testimony. Reining in excessive questioning may present the greatest

challenge to a judge. . . . (3) The judge should emphasize to jurors that, although they are not

expected to understand the technical rules of evidence, their questions must comply with those rules,

and so the judge may have to alter or to refuse a particular question. (4) The judge further should

emphasize that, if a particular question is altered or refused, the juror who poses the question must

not be offended or hold that against either party. (5) It is important that the jurors are told that they

should not give the answers to their own questions a disproportionate weight. We suggest that the

judge also instruct jurors not to discuss the questions among themselves but, rather each juror must

decide independently any questions he or she may have for a witness. (6) These instructions should

be repeated during the final charge to the jury before they begin deliberations. (7) All questions

should be submitted in writing to the judge. We suggest that the juror’s identification number be

included on each question. This will enable the judge to address problems unique to a juror, as by

voir dire, or to give a curative instruction without exposing the entire jury to any potential prejudice.

On submission of questions, counsel should have an opportunity, outside the hearing of the jury, to

examine the questions with the judge, make any suggestions, or register objections. This may be

done at sidebar, or the jury may be removed at the judge’s discretion. The judge should rule on any

objections at this time, including any objection that the question touches on a matter that counsel

purposefully avoided as a matter of litigation strategy, and that, if asked, will cause particular prejudice

to the party. Finally, counsel should be given the opportunity to reexamine a witness after juror

interrogation. The scope of the examination should ordinarily be limited to the subject matter raised

by the juror question and the witness’s answer. The purpose of reexamination is two fold. First, it

cures the admission of any prejudicial questions or answers; and second, it prevents the jury from

becoming adversary in its interrogation” (citations and internal quotation marks omitted).

Commonwealth v. Britto, 443 Mass. 596, 613-614, 744 N.E.2d 1089, 1105-1106 (2001).

While “[r]eining in excessive questioning may present the greatest challenge to a judge,” Id., in some

technically complex cases allowing juror questions in order to clarify the evidence may reduce delay

and confusion during jury deliberations.