A Fresh Look at Jurors Questioning Witnesses: A Review of Eighth Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers

64 Pages Posted: 7 Jan 2016

See all articles by Thomas Waterman

Thomas Waterman

Iowa Supreme Court

Mark W. Bennett

U.S. District Court (Northern District of Iowa); Independent; Drake University - Law School

David Waterman

United States Court of Appeals for the Eighth Circuit

Date Written: January 2, 2016

Abstract

An Iowa Supreme Court justice, federal district judge, and an Iowa lawyer take a fresh look at the emerging jury trial innovation of jurors asking questions of witnesses (the “practice”). The authors start with the first combined comprehensive analysis of Eighth Circuit and Iowa appellate case law on the practice. This analysis reveals some interesting twists and turns, including substantial differences between the two jurisdictions’ case law and the fact that the Iowa Supreme Court first mentioned the practice more than 130 years ago in 1884. The authors incorporate and discuss prior surveys on the subject but, more importantly, conduct their own extensive and probing empirical study. This study is based on data collected from five online surveys, one each for Iowa trial court judges, federal district judges in the Eighth Circuit, and magistrate judges in the Eighth Circuit, and for two cohorts of Iowa lawyers, all conducted in the fall of 2015. The authors found a dramatic difference in virtually all of the components of the study between lawyers and judges who have experienced the practice (the clear minority) and those that haven’t (the clear majority). The authors conclude that the positive benefits of allowing jurors to question witnesses far outweigh the few negatives and provide a suggested written protocol to encourage judges who have been reluctant to try the practice to take the small leap.

Keywords: juror questions, empirical study

Suggested Citation

Waterman, Thomas and Bennett, Mark W. and Waterman, David, A Fresh Look at Jurors Questioning Witnesses: A Review of Eighth Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers (January 2, 2016). Drake Law Review, Vol. 64, 2-16, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2710197 or http://dx.doi.org/10.2139/ssrn.2710197

Thomas Waterman

Iowa Supreme Court

Des Moines, IA
United States

Mark W. Bennett (Contact Author)

U.S. District Court (Northern District of Iowa) ( email )

320 6th St.
Sioux City, IA 51101
United States
712-233-3909 (Phone)

Independent ( email )

No Address Available
United States

Drake University - Law School ( email )

27th & Carpenter Sts.
Des Moines, IA 50311
United States

David Waterman

United States Court of Appeals for the Eighth Circuit

111 South 10th Street
St. Louis, MO 63102
United States

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