The Federal Rules of Evidence do
not explicitly allow or forbid jurors from submitting questions to
the court. Rule 611(a) Federal courts have interpreted
this rule to leave to the discretion of the trial judge whether to
allow questions from jurors. See, e.g.DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d
512, 515 (4th Cir. 1985). Why does the practice remain so
The advantages of allowing jurors
to submit questions are apparent. It helps jurors get a
fuller comprehension of the facts, gives them the opportunity to
clarify testimony, and engages them in a process to which they are
a critical and vital part. Frankly, it can resolve problems
with lawyers asking bad questions! Certainly, the practice
should keep more jurors attentive and awake during trial.
Although, that has not worked in the Clemens trial as the jurors
continue to snooze and yawn during testimony. At the end of
the day, say proponents, juror questions during trial leads to more
fully reasoned and just verdicts.
On the other hand, allowing jurors
to ask witnesses questions, promotes jurors to act as advocates not
fact finders. Jurors may place too much weight on their own
questions, ignore the evidence and simply confirm their
preconceived notions. Jurors may also become understandably
agitated when, as Judge Walton has done, they are told they are not
entitled to an answer. In these ways, allowing juror
questions may actually compromise the adversarial process.
In any event, allowing jurors to
submit questions mid-trial gives prosecutors and defendants alike
unique insight into how the jury perceives their witnesses and
understands the evidence. Counsel can use these insights to
shift tactics to address juror concern. Also, this window
into the jurors' thinking may promote resolution.
In the Clemens trial, the questions
submitted showed that several jurors question the credibility of
Clemens' former personal trainer, Brian McNamee. After
three days of McNamee's testimony, maybe the jurors are merely
stating the obvious to the Court and the lawyers. One thing
is clear, juror questions during trial and deliberations will
always have lawyers playing guessing games.
There is no doubt that the
prosecution and defense will answer the question and explain
why McNamee should or should not be believed.
A discussion on the jurisdictional limitations of forum-selection clauses, the inconsistencies with their enforceability, and the potential for the establishment of a standardized procedure to enable companies to evaluate forum-selection clauses with more certainty going forward.
Under what is commonly called the Sporck doctrine, the opinion work product doctrine can sometimes protect the identity of certain documents that do not themselves deserve intrinsic privilege or work product protection, as long as the adversary also has the documents and the identity could reflect a lawyer's opinion.
In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.