There are some interesting developments working their way through the legislature and the Supreme Court Advisory Committee that relate to the conduct of jurors. Senate Bill 445, sponsored by Senator Wentworth, and proposed Texas Rule of Civil Procedure 265.1 would allow jurors to submit questions to witnesses during trial.
The proposed Senate Bill would allow jurors to take notes during trial and require the courts to provide materials to jurors on which to take those notes. In addition, it would require the Texas Supreme Court to adopt a rule that would allow (1) jurors to submit questions for witnesses anonymously; (2) counsel to object to questions out of the presence of the jury; (3) witnesses to be recalled to the stand to answer a question in open court; (4) an opportunity for cross-examination in response to a juror question; and (5) limitation upon questions "for good cause." The Senate Bill has had its first reading and is currently pending before the Senate Jurisprudence Committee.
Proposed Rule 265.1 calls for an instruction to be read by the judge to the jurors at the beginning of trial advising of the right to ask questions and a form would be provided to jurors upon which questions could be submitted. The parties would be allowed to object and the court would have the discretion to reword the question. Parties would be allowed to ask follow up questions. Any question submitted would become part of the record. This proposed rule is on the SCAC’s agenda for discussion at its meeting today, February 20, 2009.
The concept of this proposal is interesting and I know some trial judges have experimented with this in the past and found it not to be all that beneficial. I’d be interested in hearing thoughts our readers may have about these proposals. I wonder what happens if the witness has been dismissed and is out of subpoena range. Or what happens if a witness is presented by deposition and a juror wants to ask a question. Also, suppose a juror asks an impermissible question, such as "Does the Defendant have insurance?" Will a judge interpret the mere existence of the rule as trumping ordinary rules of admissibility? And what happens in those instances when a judge imposes strict time limits on the parties to present their cases and jurors begin peppering the court with questions? Will the Court take time away from whichever party is then putting on its case?