The Propriety of Jury Questioning: A Remedy for Perceived Harmless Error

Abstract

In May of 1999, in United States v. Hernandez, the Third Circuit ruled on a case of first impression. Courts commonly rule on issues of first impression; every time a new legal issue is developed or a new rule of law is formed, cases of first impression arise. Hernandez is unique because it is a ruling of first impression that is not based upon a new legal issue or a new rule of law. Hernandez addresses the current practice of allowing jurors to question witnesses in criminal trials, a practice utilized in the United States since at least 1825, and in England since the 18th Century

This comment in Part II will identify and discuss the concerns and issues surrounding the current practice of allowing jurors to question witnesses in criminal trials. Part III considers what "judicial discretion" means and its relation to the process of juror questioning. Part IV will examine the current practice of each of the Federal Circuits and a representative sampling of state courts. Part V advocates a blanket rule banning the practice of juror questioning in criminal trials and, as an alternative, encourages the implementation of a new Rule of Federal Evidence or Criminal Procedure to safeguard against the perils inherent in the practice of allowing jurors to question witnesses in criminal trials. Finally, Part VI concludes the comment.