As of July 1, 2012, jurors will play a much more active role in civil jury trials in Illinois, a change that may be met with both excitement and reluctance. On April 3, 2012 the Illinois Supreme Court adopted the new Illinois Supreme Court Rule 243, which will allow jurors in civil cases to pose questions to witnesses during trials. While at first an array of concerns crossed my mind, after some thought and consideration I believe that there is a great benefit to be gained from this process for both jurors and attorneys alike.
This is how it will work: after a witness has been examined by attorneys from both sides, the judge will have the discretion to decide if the jury should ask questions. Then, the jury will submit written questions to the judge, which will become exhibits and a part of the record. Away from the jury, the judge will read the questions to the attorneys who will have the chance to object to them. Each question will be ruled on and will either be admitted, modified or excluded. The judge will then ask the admitted questions, if any, to the witness, and instruct the witness to answer it. Attorneys will be able to ask follow up questions. Based on this structure, all questions will comply with the rules of evidence.
My first concern grew from the likelihood that many jurors, unfamiliar with the rules of evidence, will pose questions that do not comply, or possibly, questions that have been ruled on and excluded previously through motions in limine. If jurors submit questions that ultimately will not be answered anyway, will the jurors just end up becoming frustrated? The rule states that jurors will be informed beforehand how they should not be concerned with the reasons why their questions may not be asked and that measures will be taken to ensure compliance with the rules of evidence. Even so, with the number of questions likely to be excluded, I question if this process truly serves a purpose other than potential juror disillusionment. And then there’s the question of efficiency, and the impact that this will have on the pace of a trial. Not only could this interrupt the flow of a trial, but it could extend the length of a trial if there are a substantial number of witnesses.
After much thought, however, I realized that this process provides an invaluable tool for attorneys: insight into the minds of the jury while there is still an opportunity to act on that knowledge. Throughout the trial, attorneys will get some guidance as to what the jury is thinking, and will have the opportunity to tailor their arguments accordingly. This kind of insight could be priceless, and I believe that it will ultimately show which attorneys use this resource most effectively. Instead of finding out at the end of trial what information could have made a difference on the outcome, attorneys will know that information along the way, and can address it if possible.
Further, if jurors know that they have the opportunity to participate, they will likely pay closer attention and be more involved in the trial process as a whole. As Chief Justice Kilbride noted, “based on comments of those who have used or seen the procedure at trials, such rule enhances juror engagement, juror comprehension and attention to the proceeding and gives jurors a greater appreciation for our system of justice.”
For those who fear this new change, do not worry. Over half of all states and all federal circuits have such a rule allowing jurors to submit written questions for witnesses. In reality, this may not be as much of a leap as it seems at first glance. As for how the people of Illinois respond to this process, well, the jury is still out. We will have to wait and see.
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