Libby: Questions Of Note -- And Notes

(AP Photo/Kevin Wolf)
When former New York Times reporter Judith Miller was on the stand a few weeks ago at the Scooter Libby perjury and obstruction of justice trial, jurors were able to ask her additional questions of their own, via the judge, once she completed her testimony. They wanted to know about her past experiences with memory loss and where she kept her notes from interviews (answer: "in a shopping bag under my desk").

As Judge Walton read the questions on the behalf of the jury, I was surprised that such protocol was allowed. I had always thought that prosecutors and defense attorneys had the monopoly on asking questions in a courtroom, but it turns out that that is not necessarily or universally true.

In fact, according to a 2006 National Center for State Courts survey, juror questions were permitted in 15% of state and 11% of federal trials. Several states prohibit the practice altogether: Minnesota (for criminal trials), Nebraska (for criminal and civil trials) and Texas (for criminal trials).

"The standard practice is not to do it," says Shari Seidman Diamond of Northwestern University School of Law and co-author of "Juror Questions During Trial: A Window Into Juror Thinking, but "treating jurors like potted plants has not been a productive way to approach jury trials."

Through their research, Diamond and her co-authors found that the benefits of allowing jurors to ask questions in court were plentiful.

"We found that what jurors do is engage in a kind of clarification and cross-checking" of the information they've just heard, Diamond explains, and "they rarely ask adversarial or aggressive questions."

This can help lawyers as well, Diamond says, because they can "find out what the jury is worried about in the course of the trial."

Because the judge vets the questions that are submitted and determines which ones are actually asked, the process is not a free-for-all. Jurors can't just blurt out what's baffling them. In a courtroom like Judge Walton's, though, they get an opportunity to clarify and distill anything they have heard from witnesses before they sit down (next week) to deliberate. Plus, if they're lucky, they get to hear about reporters' note-storage habits.