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WPIC 4.66 Questions by Jurors Addressed to Witnesses

11 WAPRAC WPIC 4.66Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 4.66 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part I. General Instructions

WPIC CHAPTER 4.60. Miscellaneous Instructions During Trial

WPIC 4.66 Questions by Jurors Addressed to Witnesses

(WITHDRAWN)

COMMENT

The rules of criminal procedure, unlike the civil rules, are silent as to whether jurors may propose questions for witnesses. In 2002, when the Supreme Court amended the civil rules to expressly allow jurors to propose questions in civil cases, no corresponding amendment was made to the criminal rules. Because the applicable court rules neither expressly allow nor disallow jurors to propose questions for witnesses in criminal cases, this issue is usually a matter for judicial discretion. See State v. Monroe, 65 Wn.App. 245, 251–52, 828 P.2d 24 (1992) (noting this Comment's discussion of discretion and citing cases from other jurisdictions that analyze the issue in terms of discretion); see generally, United States v. Lewin, 900 F.2d 145 (8th Cir. 1990), and cases cited therein.

In two cases, the Court of Appeals has upheld the trial court judge's decision to allow jurors in a criminal case to propose questions for witnesses. See State v. Monroe, 65 Wn.App at 251–54 (finding no constitutional error and holding that any nonconstitutional error was waived when the defendant failed to object at trial); State v. Munoz, 67 Wn.App. 533, 536–39, 837 P.2d 636 (1992) (same holding as in Monroe). In each opinion, however, the court expressed concerns about this practice, noting that juror questions have the potential to undermine the fundamental fairness of a criminal trial. State v. Munoz, 67 Wn.App. at 538; State v. Monroe, 65 Wn.App. at 252–53.

Given the potential for serious errors, the courts in Munoz and Monroe noted the importance of following cautionary procedures and limitations that are set forth in this Comment:

[I]t is preferable to follow the procedures outlined in [the Comment to] WPIC 4.66, especially the practice of instructing the jury on the subject only if a juror expresses a desire to question a witness. Potentially serious problems could arise from juror questions. In some instances, the adversarial procedure of a trial could be compromised.

State v. Munoz, 67 Wn.App. at 538; see also State v. Monroe, 65 Wn.App. at 251, 254. Given the concerns expressed by the Court of Appeals, the WPI Committee recommends trial courts not raise the issue unless a juror inquires. A juror might raise the issue as a general question about trial procedures, or as a question they attempt to ask a specific witness.

The WPI Committee's withdrawal of WPIC 4.66, and the concerns expressed by the courts in Monroe and Munoz about juror-proposed questions, were recognized by the court in State v. Terry, 181 Wn.App. 880, 892–93, 328 P.3d 932 (2014) (juror-proposed question led to constitutional error, under the facts of this case).

Instruction if judge prohibits questions. If the judge decides not to permit juror questions to witnesses, the following oral instruction may be used if the topic is raised:

[A juror has asked for permission to propose a question for the witness.] Because this is a criminal case, juror questions will not be allowed. It will often be the case that a lawyer has not asked a question because it is legally objectionable or because a later witness may be addressing that subject. Permitting jurors to ask questions in a criminal case might jeopardize important rights and trial procedures.

Instruction if judge permits questions. If the judge, as a general matter, decides to permit juror questions, the following instruction may be read when the issue is first raised:

[A juror has asked for permission to propose a question for the witness.] Because this is a criminal case, juror questions must be handled carefully. A juror who wants to ask a question of a witness must wait until both lawyers have completed their questioning of that witness. If at that time the juror still has a question, the juror will be given an opportunity to submit the question in writing to me so that I can decide whether the question is legally proper.
You may ask questions in order to clarify the testimony, but you are not to express any opinion about the testimony or argue with a witness. If you ask any question, remember that your role is that of a neutral fact finder, not an advocate.
There are some questions that I will not ask, or will not ask in the wording submitted by the juror. This might happen either due to the rules of evidence or other legal reasons, or because the question is expected to be answered later in the case. If I do not ask a juror's question, or if I rephrase it, do not attempt to speculate as to the reasons and do not discuss this circumstance with the other jurors.
By giving you the opportunity to propose questions, I am not requesting or suggesting that you do so. It will often be the case that a lawyer has not asked a question because it is legally objectionable or because a later witness may be addressing that subject.

Procedures if judge permits jurors to propose questions. If a written question is submitted, the court should give counsel an opportunity to review the question and to make any objections in such a way that the jurors do not know who is objecting or why. Sometimes, but not always, this will require excusing the jury from the courtroom. If the question is not allowed, the judge should tell the jury that the question as proposed may not be asked under the rules of evidence without disclosing what objections, if any, were made by either counsel.

For a more complete discussion of proper procedures when allowing jurors to propose questions, see the Comment to WPI 1.01 (Advance Oral Instruction—Beginning of Proceedings), 6 Washington Practice, Washington Pattern Jury Instructions: Civil (7th ed.), and Washington State Jury Commission's Report to the Board for Judicial Administration, Recommendation 33 (July 2000).

[Current as of May 2019.]

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