SERIES 100 PRETRIAL INSTRUCTIONS
F 106 Jurors Asking Questions
F 106 NOTES
F 106 Inst 1 Individual Jurors Many Submit Questions
F 106 Inst 2 Right To Submit Questions At Any Time
F 106 Inst 3 Improper To Refer To Jurors As “Judges Of The Facts”
F 106 Inst 4 Jurors May Advocate One Side’s Argument During Deliberations
F 106 Inst 5 (a & b) Jury Conduct: Questions By Jurors—Alternate Forms
F 106 Inst 6 Judge Should Read Juror Questions To Witness
F 106 NOTES
F 106 Note 1 Questions By Jurors: Whether Judge Or Attorney Should State The Question
F 106 Note 2 Questions By Jurors: Additional Safeguards Not Referred To In Rule 2.1033
F 106 Note 3 Strategy Note: Should Juror Questions During Testimony Be Discouraged?
Return to Series 100 Table of Contents.
F 106 Inst 1 Individual Jurors Many Submit Questions
*Modify CC 106, sentence 1, as follows [added language is underlined]:
If, during the trial, any of you have a question that you believe should be asked of a witness, you may write out the question and send it to me through the bailiff.
Points and Authorities
FORECITE F 100.7 Inst 2.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.8 [Right To Individual Juror Determination]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 106 Inst 2 Right To Submit Questions At Any Time
*Modify CC 106, sentence 1, as follows [added language is underlined; deleted language is stricken]:
If, during the trial, any of you have a question that you believe should be asked of a witness, you may write out the question and send it to me through the bailiff.
Points and Authorities
Delete “During Trial” – Jurors should not feel that their questions must be submitted “during trial.” If the question is submitted during a recess or even during deliberations, it should still be considered. (See generally People v. McAlister (1985) 167 CA3d 633, 644; see also generally California Rules of Court, Rule 2.1033.)
Add “Any Of You“—See FORECITE F 100.7 Inst 2.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.8 [Right To Individual Juror Determination]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 106 Inst 3 Improper To Refer To Jurors As “Judges Of The Facts”
*Modify CC 106, final sentence, as follows [added language is underlined; deleted language is stricken]:
You are duty-bound to be impartial judges of the facts.
Points and Authorities
Reference to jurors as “judges of the facts” is improper because it improperly suggests that the jurors must decide what the facts are. (See FORECITE F 104.1 Inst 1.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 106 Inst 4 Jurors May Advocate One Side’s Argument During Deliberations
*Add after CC 106, sentence 6, as follows:
Even though you are not advocates for one side or the other, it is permissible for you to advocate the argument of one side or the other during your deliberations.
Points and Authorities
CALCRIM 106’s admonition that jurors are not advocates may improperly mislead jurors as to their proper role during deliberations. Certainly, productive deliberation contemplates free discussion of the various theories and arguments advocated by the parties. (See generally FORECITE CG 7.9 [Duty To Deliberate Fully And Fairly].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 1.8 [Right Of Argument To The Jury]
FORECITE CG 7.8 [Right To Individual Juror Determination]
FORECITE CG 7.9 [Duty To Deliberate Fully And Fairly]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 106 Inst 5 (a & b) Jury Conduct: Questions By Jurors—Alternate Forms
*Replace CC 106 with:
Alternative a:
You may propose questions to be asked of the witnesses provided you follow the proper procedures in doing so. Please withhold any questions until after a witness has completed his or her testimony. Do not interrupt the examination of a witness in order to ask a question. When a witness has finished his or her testimony then, if any juror has a question of the witness, you may send me a note through the bailiff. Please do not address either the witness or any lawyer, but confine your inquiry to the court.
On the other hand, if you have difficulty in hearing a witness or a lawyer, please raise your hand immediately and the court will take corrective action.
[Cf., Devitt, et al., Fed. Jury Prac. & Inst. (1992) §10.06.]
Alternative b:
Generally, only the lawyers and I ask questions of witnesses. If you feel that an important question has not been asked, you may put the question in writing and have it handed to me. I will then decide if the question should be asked. If it is, I will ask the question of the witness.
[Source: Adapted from Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 2, p. 7.]
Points and Authorities
In California, jurors should be afforded the opportunity to ask questions of the witnesses subject to the discretion and approval of the trial court. (People v. McAlister (1985) 167 CA3d 633, 644.) The above instructions informs the jurors of the option of proposing questions to the witnesses while at the same time assuring that any such inquiry is orderly and subject to the review and approval of the trial court.
This procedure was held to be correct in People v. Cummings (1993) 4 C4th 1233, 1306. The Cummings court concluded that the “practice of direct jury questioning of witnesses should not be permitted. The danger of irrelevant and improper questions is high, and were counsel to object, the potential for prejudice is apparent.” (Ibid; see also, State (Montana) v. Graves (1995) 907 P2d 963, 967 [holding that the following five “minimum safeguards” should be followed: “(1) the question should be factual, not adversarial or argumentative, and should only be allowed to clarify information already presented; (2) the question should be submitted to the court in writing; (3) counsel should be given an opportunity to object to the questions outside of the presence of the jury; (4) the trial judge should read the questions to the witness; and (5) counsel should be allowed to ask follow-up questions” ].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 7.9 [Duty To Deliberate Fully And Fairly]
FORECITE CG 7.11 [Juror Questions Of Witnesses]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: In Cummings, the defense attorney objected to questioning by the jury presumably because it was strategically unfavorable to the defendant to have the jurors submit questions. Obviously, if counsel has made such a determination, any instruction alerting the jurors to their right to submit questions should not be requested.
RESEARCH NOTES
See Annotation, Court’s witnesses (other than expert) in state criminal prosecution, 16 ALR4th 352 and Later Case Service.
CALJIC NOTE: See FORECITE F 1.00a.
F 106 Inst 6 Judge Should Read Juror Questions To Witness
*Add to CC 106 as follows:
It is the normal procedure for the prosecutor to read any juror questions to the witness.
Points and Authorities
Whether Judge Should Read Questions—To avoid allowing the prosecutor to “represent the court,” the judge should read questions to the jurors. (But see FORECITE F 106 Note 1.)
Right To Cautionary Instruction—If the prosecutor reads the question, the defense should have the right to a cautionary instruction informing the jurors that this is the “normal procedure.” (See e.g., FORECITE F 101.1 Inst 1.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 106 NOTES
F 106 Note 1 Questions By Jurors: Whether Judge Or Attorney Should State The Question
In California, it is established that the jurors should be afforded the opportunity to ask questions of the witnesses subject to the discretion and approval of the trial court. (See FORECITE F 106 Inst 5.) In People v. Majors (1998) 18 C4th 385, 407, the court held that it is proper for the judge to allow the prosecutor to state the questions to the witnesses since the prosecutor called most of the witnesses. (See also People v. Cummings (1993) 4 C4th 1233, 1305 [“rejecting a claim that permitting a party to ask the jurors’ questions allowed that party ‘to curry favor with individual jurors'” ].)
However, the dissent of Justice Mosk contended that it would be preferable for the trial court to rephrase the question in appropriate form and ask it of the witness. (Majors, 18 C4th at 433.) By allowing counsel to ask the jurors’ question, the court is allowing counsel “to some extent at least, [represent the court].” (People v. McAlister (1985) 167 CA3d 633, 644; see also State v. Graves (1995) 907 P2d 963, 967 [274 Mont. 264]; U.S. v. Brown (9th Cir. 1987) 832 F2d 128, 130.) Hence, by allowing the prosecutor to “represent the court” in asking the jurors’ question, the prosecution is given an unfair advantage which may abridge the defendant’s federal constitutional rights to due process and a fair trial by jury. (5th and 6th Amendments; see Wardius v. Oregon (1973) 412 US 470, 473-74 [37 LEd2d 82; 93 SCt 2208].)
CALJIC NOTE: See FORECITE F 1.00 n7.
F 106 Note 2 Questions By Jurors: Additional Safeguards Not Referred To In Rule 2.1033
California Rules of Court, Rule 2.1033 allows jurors to submit questions to witnesses subject to objection by counsel. However, even if there is no objection to the question, the propriety of the instruction should still be subject to the discretion and approval of the court. (See People v. McAlister (1985) 167 CA3d 633, 644.)
Moreover, additional safeguards not referenced in Rule 2.1033 should also be employed. (See People v. Cummings (1993) 4 C4th 1233, 1306.)
See also FORECITE F 106 Inst 1, Inst 2, Inst 5, Inst 6 and Note 1.
F 106 Note 3 Strategy Note: Should Juror Questions During Testimony Be Discouraged?
Some trial practitioners disfavor juror questions during testimony because the questions disrupt the flow of the examination. Moreover, the juror’s question may relate to excluded or inadmissible evidence and the jurors may blame the defense when the question is not asked. Obviously, if you are concerned about these problems you should not request CC 106 and should object to it if it is requested by the prosecution or proposed by the judge sua sponte.
