Written Questions From Jurors

“In a proper case there may be a real benefit from allowing jurors to submit questions under proper control by the court. However, in order to permit the court to exercise its discretion and maintain control of the trial, the correct procedure is to have the juror write the questions for consideration by the court and counsel prior to their submission to the witness.” (People v. McAlister (1985) 167 Cal.App.3d 633, 644 citing People v. Gates (1979) 97 Cal. App. 3d Supp. 10)

“[T]he judge has discretion to ask questions submitted by jurors or to pass those questions on and leave to the discretion of counsel whether to ask the questions.” (People v. Cummings (1993) 4 Cal.4th 1233, 1305.)

Whether the practice of direct questioning of witnesses by jurors is approved or criticized by the particular court, there is general agreement that the irregular proceeding must result in actual prejudice before an appellate court is justified in disturbing the judgment. (McAlister, supra, 167 Cal.App.3d at 645.)

Improper Nature of Questions

“The appellant urges that when jurymen ask improper questions the defendant is placed in the delicate dilemma of either allowing such question to go in without objection or of offending the jurors by making the objection and the appellant insists that the court of its own motion should check the putting of such improper questions by the jurymen, and thus relieve the party injuriously affected thereby from the odium which might result from making that objection thereto. There is no force in this contention. Objections to questions, whether asked by a juror or by opposing counsel, are presented to the court, and its ruling thereon could not reasonably affect the rights or standing of the party making the objection before the jury in the one case more than in the other.” (Maris v. H. Crummey, Inc. (1921) 55 Cal.App. 573, 578–579.)

“[A]t least in a criminal case it is unnecessary for counsel to make an objection to the improper nature of the questions propounded by a juror in order to preserve the right to raise the error on appeal.” (McAlister, supra, 167 Cal.App.3d at 644.) “We agree with the courts from other jurisdictions that have held that the risk of prejudice is too great to require counsel to be put to the choice of offending a juror by an objection or of letting improper or prejudicial testimony go in without the right to later review.” (Id.; see State v. Sickles (1926) 220 Mo.App. 290; Krause v. State (1942) 75 Okla.Crim. 381.)

Right of Jurors to Ask Questions

The rationale of these cases is that a juror is not selected for the purpose of asking questions and is not expected to take the place of counsel in the trial of the case. (McAlister, supra, 167 Cal.App.3d at 644.) Therefore, when the court permits a juror to propound questions to a witness, the juror, to some extent at least, represents the court. (Id.) It is therefore the duty of the court to see to it, without objection being made, that no improper questions are asked of a witness by a juror. (Id., citing Sparks v. Daniels (Mo.App. 1961) 343 S.W.2d 661, 667.)