by Robert Augustus Harper and Michael Robert Ufferman

Page 8

The Jury Innovations Committee¹ recently proposed to the Supreme Court of Florida that individual jurors be permitted to submit questions of witnesses in criminal prosecutions.² Although the Florida Legislature has enacted a statute that authorizes jury questioning in civil cases,³ no similar statute exists authorizing the practice in criminal cases. Nevertheless, the committee, through its chair, Judge Robert L. Shevin, asked the court to implement a rule to allow jury questions in criminal cases.⁴ The court, however, declined the committee’s request to implement a rule and instead referred the matter to the Criminal Procedure Rules Committee.⁵ This article addresses many of the issues associated with allowing the jury to submit questions to witnesses during a criminal trial.

Evolution of the Jury in the American Criminal Justice System
According to Blackstone, at common law, defendants charged with capital crimes were not afforded counsel “unless some point of law shall arise proper to be debated.”⁶ Both the judge and the jury were authorized to question witnesses, and “[t]here were few rules to constrain the proceedings.”⁷ Due to the lack of representation coupled with absence of procedural rules, criminal trials “were left in the hands of judges alone.”⁸

As the English court system evolved, more emphasis was placed on a defendant’s right to fair procedure, more restrictive standards of evidence, and greater independence of the litigants.⁹ In turn, defense counsel played an increasing role in determining the order and manner of the presentation of witnesses and evidence during the trial; as a result, the role of jurors as active participants diminished.¹⁰ “Accordingly, the very manner in which evidence was proffered and accepted became shaped by defense counsel through the art of cross-examination and increasing emphasis on the quality of evidence, such as the creation of the hearsay rule.”¹¹

When this country was founded, the drafters of the Constitution recognized the importance of the right to counsel and cemented this right into the American criminal justice system through the Sixth Amendment. “Today, the modern adversarial system retains questioning by parties, but the role of jurors has evolved from active investigators to passive, neutral observers of the testimony elicited by the advocates for the state and the defendant.”¹²

Modern Trends and the Minnesota Supreme Court Decision in State v. Costello
In the past quarter-century, a debate has developed concerning whether courts should again permit jurors to ask questions of witnesses during trials. Some commentators, courts, and legal scholars have opined that jury questions can be beneficial because: 1) questions may enhance the ability of jurors to discern the truth; 2) questions may provide counsel an opportunity to better comprehend jurors’ thought processes and their perception of case weaknesses; 3) questions may increase juror attentiveness at trial; and 4) empirical research suggests that jurors who are allowed to question witnesses are more satisfied with their service and more confident with their verdicts.¹³ Although a majority of states allows the procedure in one form or another, “[t]he apparent prevalence of juror questioning is misleading, however, because even when allowed, the practice is rarely encouraged.”¹⁴ In fact, several states have prohibited jury questions in criminal trials.¹⁵ Most recently, the Minnesota Supreme Court outlawed the practice.¹⁶ The Minnesota Supreme Court was concerned that allowing juror questions in criminal cases would impact juror impartiality and would relieve the prosecution of its burden of proof.

• Issues of Juror Impartiality

To maintain juror independence and objectivity, it is a tenet of the criminal justice system that members of a jury should “postpone or suspend the final formation of . . . opinion until the parties have ‘had their day in court’ and have presented all the information that they consider relevant in the context of adjudication.”¹⁷ “This principle is particularly important in criminal trials, in which the state presents all of its evidence first, and it is sometimes only after several days of listening to mounting evidence against a defendant that the jury may hear any exculpatory evidence.”¹⁸ Jurors are usually instructed to keep an open mind until the end of the trial.¹⁹ “But in order to ask a question, a juror must first develop a hypothesis or, at the very least, respond to a perceived flaw in a party’s presentation of the case before the time to deliberate has arrived.”²⁰ In light of these concerns, the Minnesota Supreme Court reasoned:

To the degree jurors are encouraged to ask questions about facts and legal issues, they are encouraged to form “at least a prior tentative opinion because one cannot investigate unless one has a hypothesis about what happened in the particular criminal case.” Therefore, with such encouragement, there is an increased risk that jurors will “inevitably . . . draw conclusions or settle on a given legal theory before the parties have completed their presentations, and before the court has instructed the jury on the law of the case.” . . . Although it is impossible to guarantee that jurors will remain open-minded until the presentation of all of the evidence and instructions, passive detachment increases that probability.²¹

The U.S. Court of Appeals for the Second Circuit has reached a similar conclusion:

[W]e strongly discourage [jury questions]. The most troubling concern is that the practice risks turning jurors into advocates, compromising their neutrality. It is difficult for jurors to be both active participants in the adversarial process, embroiled in the questioning of witnesses, and detached observers, passing on the credibility of the witnesses and the plausibility of the facts presented.
If, perchance, jurors pose questions that are less inquiries and more commentary, they further impair their neutrality. The appropriate occasion for jurors to express skepticism is during deliberations, not during the trial. And the appropriate time to start deliberations is after the jury has heard all the evidence, the arguments of counsel and the judge’s charge on the law. At the very least, jury questioning is a subliminal invitation to launch prematurely into evaluating the evidence.²²

• Issues of Relieving Prosecution of its Burden of Proof

In a criminal case, the prosecution has the burden of proving the existence of every element of the crime charged beyond a reasonable doubt.²³ “Allowing jurors to pose questions could, in some cases, elicit testimony from a witness that sufficiently proves an element of a crime, therefore relieving the state of its burden.”²⁴ Recognizing this potential problem, the Minnesota Supreme Court explained:

The assistance provided to the prosecution by juror questioning may be direct or indirect. Juror questioning can directly assist the prosecution when . . . evidence could be revealed by a juror question. Juror questioning can indirectly assist the prosecution when it simply illuminates a facet of the case that interests the jurors . . . . Because the practice of juror questioning can actively assist the State in meeting its burden of proof, the jurors’ role may be compromised.²⁵

If jury questions are permitted in criminal cases, the possibility exists that the prosecutor could forget or simply fail to develop an aspect of its case, and the jury, in effect acting on the part of the prosecutor, could ask questions of witnesses that ultimately fill the holes in the prosecution’s case. In such circumstances, the jury, not the prosecutor, would establish an element of the offense that otherwise would not have been established.

• Minnesota Supreme Court’s Conclusion in Costello

As a result of the impact on juror impartiality and the potential for relieving the prosecution of its burden of proof, the Minnesota Supreme Court was “persuaded that the exact effect of [jury] questioning is not quantifiable, and the inherent risks so significant that the practice must be proscribed.”²⁶ The court held that “no court shall permit jurors to question witnesses in a criminal trial.”²⁷

Florida Precedent
Florida law is by no means clear on the question of whether jurors can question witnesses in criminal trials. Despite the exhaustive panoply of criminal rules contained in the Florida Rules of Criminal Procedure, the rules are silent regarding whether jurors may question witnesses during a trial; nothing in the rules gives trial courts the authority to permit juror questions. In 1999, the Florida Legislature enacted a provision allowing jurors in a civil trial to submit written questions which are then considered outside the presence of the jury.²⁸ No similar provision was made for juror questioning in criminal cases. “Under the doctrine of ‘expressio unius est exclusio alterius,’ the mention of one thing implies the exclusion of another.”²⁹

Almost 50 years ago, in Ferrara v. State, 101 So. 2d 797 (Fla. 1958), the Supreme Court of Florida was asked to consider whether it was error to distribute a particular pamphlet to jurors prior to a trial. The pamphlet, entitled “Handbook for Trial Jurors serving in all Courts of Record in Hillsborough County, Florida,” explained to jurors their responsibilities. The handbook instructed jurors not to ask questions of the witnesses during the trial. The court, in dicta, stated the following: “We think that upon appropriate occasion a trier of fact might be completely justified in propounding a question . . . . We conclude that the procedure should be one to be controlled by the discretion of the trial judge.”³⁰

The jury in Ferrara did not ask any questions of the witnesses.

Several years later, in Strawn v. State, 332 So. 2d 601 (Fla. 1976), the court considered a scenario in which a defense attorney, in front of the jury, stated that “we would allow the defendant to answer any questions that the jury may wish to ask of him.”³¹ The trial court declared a mistrial. However, the trial court ruled that jeopardy did not attach and therefore denied the defendant’s subsequent motion to dismiss the charges. The defendant filed for a writ of prohibition with the district court of appeal, which granted the writ and determined that the defendant’s double jeopardy argument was meritorious because the trial court’s declaration of mistrial was not a manifest necessity. The Supreme Court of Florida granted certiorari. In its opinion, the Supreme Court quoted the following statements made by the trial court during the trial:

In our system for many centuries, jurors have not been permitted to ask questions, and perhaps some day if we don’t need lawyers for the system, then jurors could be permitted to ask any question they liked, and there wouldn’t be any need for lawyers in the courtroom, the jurors could investigate it fully and make a decision. But that is not our system. Our system depends on utter impartiality and upon having two trained counsel to ask questions, to object to each other’s questions at times, and to ask those questions for the purpose of eliciting admissible evidence.

Even that is a pretty far out procedure. I wouldn’t take it upon myself without the benefit of a lot of things to induce that kind of procedure into our system, because the very fundamental base of our system is the adversary concept, and this begins to move a little bit away from it. In fact, it moves drastically away from it in the way it was used in this trial, that if we are to move away from an adversary approach and go to an inquisitorial approach, that procedure will have to be adopted by a higher court than my own.³²

The Supreme Court of Florida ultimately ruled that trial court did not err in granting the mistrial.³³ Yet, despite the above-quoted passage from the Supreme Court’s opinion, the court maintained that its decision in Strawn did not contradict its earlier decision in Ferrara.³⁴

In 1994, the Supreme Court of Florida “decline[d] to revisit” the issue of whether jurors can ask questions of witnesses.³⁵ The court “revisited” the issue when the Jury Innovations Committee submitted its recent proposal. The court has referred the issue to the Criminal Procedure Rules Committee for further consideration.³⁶

The district courts of appeal in Florida are in conflict regarding whether the practice of allowing jurors to ask questions of witnesses should be encouraged. The Fourth District Court of Appeal has “strongly discourage[d] trial courts from promoting jurors’ questions or encouraging jurors to ask questions of witnesses.”³⁷ The court added that “it is hard to discern the benefit of such a practice when weighed against the endless potential for error.”³⁸ The Fourth District’s view is in conflict with decisions from the First District Court of Appeal,³⁹ which has considered the issue but has not “discouraged” trial courts from allowing juries to ask witnesses questions. Recently the Fifth District Court of Appeal held that a trial court did not err in permitting the jury to submit questions to witnesses in a criminal case.⁴⁰

Procedural Issues
Despite the suggestion of the First District Court of Appeal,⁴¹ the Supreme Court of Florida has not adopted a rule of procedure governing the practice of jury questions in criminal cases, if in fact such a practice is permissible. Without a governing rule, any policy or local practice of permitting juror questions will lack uniformity, allowing different practices and procedures to be followed throughout the state. For example, if a court allows juror questions, who will ask the questions: the judge or one of the parties? Generally those states that allow jury questions require either the court, the bailiff, or the clerk to ask the question so as to prevent the jury from assuming favor based on one particular party asking their questions.⁴² Yet without a uniform procedure, courts are free to allow both parties, or even just one party (i.e., the prosecutor) to ask the questions submitted by the jury. An inherent and prejudicial problem exists with allowing a prosecutor to ask questions of witnesses submitted by jurors:

It is difficult to conceive of when counsel would allow its opponent to ask a juror’s question; the possibility of gaining a juror’s favor from asking the juror’s question would seem too great. One rationale for allowing this procedure would be if one counsel wanted to re-examine the witness and incorporate the juror’s question into its examination. But for this reason, though, a court should ask the question itself and minimize the prejudicial effects for either side.⁴³

If only the prosecutor is permitted to ask the jury’s questions, then the prosecutor is given the unfair advantage of being able to carry the jury’s torch.

Other problems will also arise if jurors are allowed to ask questions of witnesses in criminal trials. First, a particular question submitted by the jury may require further explanation,⁴⁴ creating a dilemma as to when to allow further explanation and when to limit answers to the specific questions submitted. If the trial judge adds to the jury’s question, it may result in prejudicial information being presented to the jury. Second, allowing the jury to ask questions of witnesses places counsel in the difficult position of having to correct the wording of inappropriate questions. Defense counsel is required to zealously advocate the position of his or her client. Yet counsel may be required to abandon that role in order to be a mouthpiece for the jury. It is not the obligation of defense counsel to formulate questions that can be used to the detriment of his or her client, but the procedure of allowing juries to ask questions places defense counsel in this untenable role. Finally, some jurors may simply submit comments as opposed to questions. While juror comments may be relevant to demonstrate misconduct on the part of the jury, such comments are irrelevant and prejudicial to the extent that such comments improperly allow the parties to see into the minds of the jury. The trial court is placed in the difficult position of having to decide whether to disregard such comments or to read the comments to the parties.

Conclusion
For all of the reasons set forth in this article, it is the position of the authors that jurors should not be allowed to ask questions in criminal cases. The compelling reasoning of the Minnesota Supreme Court in Costello and the multiple problems that will result from the adoption of such a procedure outweigh perceived benefit. In our system of criminal justice, the accused is presumed innocent in the eyes of the jury until proven guilty beyond a reasonable doubt by the prosecution. While juror questions may be appropriate in civil cases, the stakes in a criminal trial are far more severe than in a civil trial—a person’s life and liberty rest in the hands of the jury. The jury should be a neutral fact-finder when making this important decision. As explained by Judge Donald P. Lay of the Eighth Circuit Court of Appeals:

The fundamental problem with juror questions lies in the gross distortion of the adversary system and the misconception of the role of the jury as a neutral factfinder in the adversary process. Those who doubt the value of the adversary system or who question its continuance will not object to distortion of the jury’s role. However, as long as we adhere to an adversary system of justice, the neutrality and objectivity of the juror must be sacrosanct.⁴⁵

Some will argue that jury questions should be permitted because questions enhance the ultimate goal of the jury: to find the truth. However, the truth-finding goal must be balanced against a criminal defendant’s constitutional rights. Former Supreme Court Justice Hugo L. Black has observed:

A criminal trial is in part a search for truth. But it is also a system designed to protect “freedom” by insuring that no one is criminally punished unless the State has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty.⁴⁶

Similarly, in Morrison v. State, 845 S.W. 2d 882 (Tex. Crim. App. 1992), the Texas Court of Criminal Appeals rejected the argument that jury questions would place jurors in a better position to “find the truth,” reasoning that “[d]ue process and those individual rights that are fundamental to our quality of life co-exist with, and at times override, the truth-finding function.” Id. at 884.

The criminal jury trial system is one of the cornerstones upon which this great nation was built. The current system has successfully operated for more than 200 years. Encouraging jury questions in criminal cases simply leads to being innovative solely for the sake of innovation. The criminal defendant is a human being, not a guinea pig. The rights of the accused in a criminal courtroom should not be the object of experimentation as in a science laboratory. When the life and liberty of men and women are at stake, their fate should rest in the hands of neutral and detached decision-makers, not active interrogators. The institution of the impartial jury has been a model for other judicial systems worldwide. Accordingly, criminal juries should not be permitted to ask questions of witnesses in criminal trials. q


¹ The Jury Innovations Committee is a branch of the Judicial Management Council.
² The issue was one of 48 proposals submitted by the Jury Innovations Committee to the court in 2001. See Final Report, Jury Innovations Committee, dated May 2001 (www.flcourts.org/Supreme Court/Clerk’s Office/Briefs & Petitions/Case No. SC01-1226). Proposal number 16 asked the court to consider whether jurors in both civil and criminal trials should be permitted to ask witnesses questions. See Final Report, Jury Innovations Committee, pg. 40.
³ See Fla. Stat. §§40.50(3), (4) (1999). 1999 Fla. Laws ch. 225, which created Fla. Stat. §45.50, was declared to be in violation of Fla. Const. art. III, §6 (the “single subject” rule) in the circuit court of the Second Judicial Circuit. See Florida Consumer Action Network v. Bush, 8 Fla. L. Weekly Supp. 233 (Fla. 2d Cir., Feb. 8, 2001). On appeal, the First District Court of Appeal reversed, holding that the plaintiffs failed to allege an appropriate justiciable controversy for declaratory judgment purposes. See State v. Florida Consumer Action Network, 830 So. 2d 148, 153 (Fla. 1st D.C.A. 2002). The district court certified the question to the Supreme Court of Florida as one of great public importance, but the Supreme Court declined to review the case. See Florida Consumer Action Network v. State, 852 So. 2d 861 (Fla. 2003).
⁴ In its report, the committee stated: “Jurors in both civil and criminal trials should be permitted to submit to the judge written questions to be asked of witnesses by the judge. The judge has the discretion to determine which jury questions are to be asked of witnesses. The Supreme Court should incorporate this right into the rules of civil and criminal procedure.” Final Report, Jury Innovations Committee, pg. 40. The committee acknowledged that there are no reported cases interpreting Fla. Stat. §40.50, the statute authorizing juror questions in civil cases. See Final Report, Jury Innovations Committee, pg. 40. The committee added, “Although the courts have found that questioning by jurors is permissible, the practice has not been strongly encouraged. See Watson v. State, 651 So. 2d 1159 (Fla. 1994); Patterson v. State, 725 So. 2d 386 (Fla. 1st D.C.A. 1999).” Final Report, Jury Innovations Committee, pg. 40. Section 40.50 notwithstanding, the committee argued “that rules governing jury trials are more appropriately addressed by the Supreme Court in its rule-making capacity rather than by the Legislature.” Final Report, Jury Innovations Committee, pg. 40. The committee set forth the following pros and cons of allowing jurors to ask questions of witnesses:
Potential benefits include:
1. The accuracy of the decision-making process will be improved.
2. Jurors will be more confident in their verdict and satisfied that they possessed all of the information necessary to reach a correct verdict.
3. Jurors will be more involved in the trial process, which could heighten their overall satisfaction with the trial.
4. Allowing the jury to play a more active role will instill in jurors a better understanding of the importance of their responsibility.
5. The asking of questions may help inform the attorneys about issues in the case that the jurors do not understand and what points need further clarification.
6. Juror questions may reveal important evidence or issues that were not covered by the lawyers.
Potential problems include:
1. Jurors might ask inappropriate or prejudicial questions because they do not know the rules of evidence and procedure, but this will be balanced by the trial judge making the final decision on whether the question is appropriate and should be asked.
2. Juror questions might upset an attorney’s strategy or result in unwanted surprises.
3. An individual juror’s question and the answer elicited may take on a stronger significance to the jury than those questions and answers presented and received in the normal adversarial manner.
4. Jurors who are the most active in the trial may be the most influential during deliberations.
Final Report, Jury Innovations Committee, pgs. 41–42.
The committee opined that the benefits “strongly outweigh any potential harm.” Final Report, Jury Innovations Committee, pg. 42. Yet the committee recognized “several other practical difficulties”: 1) when expert testimony in civil cases is presented by deposition, there is no possibility of questioning the witness and therefore certain inequities may arise; 2) the procedure for writing down the questions can raise other problems because if the question is written by the juror in court, it may be obvious which juror is writing it, even if it is unsigned; and 3) if the jurors adjourn to the jury room to consider their questions, they may begin to discuss the questions. See Final Report, Jury Innovations Committee, pg. 42. The committee could not decide whether these issues should be left to the discretion of the trial judge or should be dealt with in the proposed rule. See Final Report, Jury Innovations Committee, pg. 42.
⁵ In an order dated October 17, 2003, Thomas D. Hall, Clerk of the Supreme Court of Florida, stated, “At the Court’s direction, this case is hereby closed.” In Administrative Order No. AOSC03-41, Chief Justice Harry Lee Anstead referred several of the Jury Innovations Committee’s proposals to rules committees, including Proposal 16 concerning jury questions. See Administrative Order No. AOSC03-41, dated October 17, 2003 (www.flcourts.org/sct/clerk/adminorders/2003/sc03-41.pdf) (Clerk’s Office link, Administrative Orders, 2003).
⁶ William Blackstone, 4 Commentaries on the Laws of England 356 (1769).
⁷ Stephen Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 Cornell L. Rev. 497, 506 (1990).
⁸ Id. at 508.
⁹ Id. at 520–24.
¹⁰ Id. at 536–37.
¹¹ State v. Costello, 646 N.W. 2d 204, 208 (Minn. 2002) (citing Landsman, supra note 7, at 539–42, 564–72).
¹² Costello, 646 N.W. 2d at 208–09 (citing Jeffrey S. Berkowitz, Breaking the Silence: Should Jurors be Allowed to Question Witnesses During Trial?, 44 Vand. L. Rev. 117, 124 (1991)).
¹³ See State v. Fisher, 789 N.E. 2d 222, 228–29 (Ohio 2003) (highlighting advantages of permitting jury questions of witnesses). In Fisher, the Supreme Court of Ohio held that it was not improper to allow jurors to ask questions of witnesses.
¹⁴ Costello, 646 N.W. 2d at 209 (citing U.S. v. Thompson, 76 F.3d 442, 448 (2d Cir. 1996) (stating “we have strongly discouraged the practice except in extraordinary or compelling circumstances, because such questioning tends to impair juror neutrality during the trial and to encourage premature deliberations”)).
¹⁵ At least five states prohibit the practice of jury questions in criminal trials: Georgia, Minnesota, Mississippi, Nebraska, and Texas. See Johnson v. State, 507 S.E. 2d 737, 742 (Ga. 1998) (“Clearly, a juror is not permitted to question a witness.”); State v. Costello, 646 N.W. 2d 204 (Minn. 2002); Wharton v. State, 734 So. 2d 985, 990 (Miss. 1998) (holding that “juror interrogation is no longer to be left to the discretion of the trial court, but rather is a practice that is condemned and outright forbidden by this Court”); State v. Zima, 468 N.W. 2d 377, 379–80 (Neb. 1991) (“Since due process requires a fair trial before a fair and impartial jury, the judicial process is better served by the time-honored practice of counsel eliciting evidence which is heard, evaluated, and acted upon by jurors who have no investment in obtaining answers to questions they have posed.”) (citations omitted); Morrison v. State, 845 S.W. 2d 882, 886–89 (Tx. Crim. App. 1992) (holding that jurors are not permitted to ask witnesses questions: “A change in our system involving intrusion of one component into the function of another may only be established through the limited rule-making authority of this court, subject to the disapproval by the legislature or by the legislature in accordance with due process.”).
¹⁶ See Costello, 646 N.W. 2d 204.
¹⁷ Bostjan M. Zupaneie, Truth and Impartiality in Criminal Process, 7 J. Contemp. L. 39, 70 (1982).
¹⁸ Costello, 646 N.W. 2d at 210.
¹⁹ For example, Instruction 2.1 of the Florida Standard Jury Instructions in Criminal Cases states, “You should not form any definite or fixed opinion on the merits of the case until you have heard all the evidence, the argument of the lawyers and the instructions on the law by the judge.”
²⁰ Costello, 646 N.W. 2d at 210–11.
²¹ Id. at 211 (citations omitted).
²² U.S. v. Bush, 47 F.3d 511, 515–16 (2d Cir. 1995) (citations omitted).
²³ See In re Winship, 397 U.S. 358, 364 (1970).
²⁴ Costello, 646 N.W. 2d at 211.
²⁵ Id. at 211–12.
²⁶ Id. at 214.
²⁷ Id.
²⁸ See Fla. Stat. §40.50(3), (4) (1999).
²⁹ Mosher v. Anderson, 817 So. 2d 812, 816 (Fla. 2000).
³⁰ Ferrara, 101 So. 2d at 801.
³¹ Strawn, 332 So. 2d at 601.
³² Id. at 602, 605–06 (emphasis added).
³³ Id. at 602.
³⁴ See id. at 606–07.
³⁵ See Watson v. State, 651 So. 2d 1159, 1163 (Fla. 1994).
³⁶ See supra note 5.
³⁷ Pierre v. State, 601 So. 2d 1309, 1309 (Fla. 4th D.C.A. 1994).
³⁸ Id.
³⁹ See Patterson v. State, 725 So. 2d 386, 386 (Fla. 1st D.C.A. 1998) (“Appellant complains that the trial court erred in permitting individual jurors to ask questions of witnesses. We disagree.”); Tanner v. State, 724 So. 2d 156, 157 (Fla. 1st D.C.A. 1998) (“Appellant claims reversible error because the trial judge permitted the jury to submit questions to him to be asked of the witnesses. We find no abuse of discretion by the trial court in the procedure used.”); Bradford v. State, 722 So. 2d 858, 859 (Fla. 1st D.C.A. 1998) (“We do not find that the trial court abused its discretion in permitting juror questioning.”); Scheel v. State, 350 So. 2d 1120, 1121 (Fla. 3d D.C.A. 1977) (“We conclude that the matter is within the discretion of the trial judge and will not be grounds for reversal in the absence of a showing that the procedure employed denied the defendants of a fair trial.”). But see Patterson, 725 So. 2d at 387 (“I, too, believe the practice should be discouraged or at least become the subject of a procedural rule promulgated by the court.”) (Miner, J., specially concurring.).
⁴⁰ See Coates v. State, 28 Fla. L. Weekly D2243, D2244 (Fla. 5th D.C.A. Sept. 26, 2003). See also Scheel v. State, 350 So. 2d 1120, 1121 (Fla. 3d D.C.A. 1977).
⁴¹ See Henderson v. State, 792 So. 2d 641, 642 (Fla. 1st D.C.A. 2001) (“Without presuming to suggest a standard, controlled procedure of general applicability to deal with juror questioning of witnesses, we would respectfully urge the Florida Supreme Court to adopt a procedural rule to address the matter, ‘lest the endless potential for error’ of such a practice, as lamented by the Fourth District Court of Appeal in Pierre, should become a reality.”).
⁴² See, e.g., Haw. R. Pen. P. 26(b) (“If the court deems the question appropriate and subject to the Hawaii Rules of Evidence, the court may ask the question.”) (emphasis added); State v. Mascarella, Tuscarawas App. No. 94 AP 100075, 1995 WL 495390 (Ohio Ct. App. July 6, 1995) (“Once juror questions are approved by the trial court, the clerk or bailiff should read the questions to the witness.”) (emphasis added).
⁴³ Michael A. Wolff, Jury Questions: A Survey of Theory and Use, 55 Mo. L. Rev. 817, 855 (1990).
⁴⁴ For example, the question may simply ask for a “yes” or “no” answer, but the witness may attempt to offer further explanation.
⁴⁵ U.S. v. Johnson, 892 F.2d 707, 713 (8th Cir. 1989) (Lay, J., concurring).
⁴⁶ Williams v. Florida, 399 U.S. 78, 113 (1970) (concurring in part and dissenting in part).

Robert Augustus Harper is board certified in criminal appellate law and has been admitted to practice in Florida since 1970. Mr. Harper has been admitted to and appeared in the U.S. Supreme Court and the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Ninth, and 11th circuits. Mr. Harper is also admitted to practice in the State of Georgia.

Michael Robert Ufferman has been an associate with the Robert Augustus Harper Law Firm, P.A., since 2002. He was previously a senior staff attorney for Florida Chief Justice Major B. Harding. Mr. Ufferman earned his B.A. from Miami University in 1994 and his J.D. from Florida State University College of Law in 1997.