Vanderbilt Law Review


Kristen DeBarba

First Page



A defendant sits in the witness stand undergoing examination by his attorney. He is accused of armed robbery, among other criminal acts. During the course of the defendant's testimony, a juror blurts out that he has a question. The judge tells the juror to write his question down and advises the juror that he will be able to ask his question upon completion of the attorneys' examinations. When the juror's question is finally asked, the judge indicates to the defendant's attorney that the attorney should address the matter raised by the juror on reexamination. During the reexamination, the attorney turns to the jury box and directly addresses the individual juror, inquiring whether the juror's question had been sufficiently answered. At this point, several other jurors, feeling released from their silence, also begin questioning the witness. The judge or attorneys occasionally rephrase the questions, but often the witness answers the jurors directly. Neither party objects to the jurors'questions at the time of trial.

The members of the jury in the trial discussed above appear to have acted as inquisitors. Instead of listening passively to the presentation of evidence from the opposing parties, they pose their own questions to the defendant. In an inquisitorial system of justice, used in many civil law countries, judges or juries have the primary responsibility for gathering and evaluating evidence. These fact finders actively seek evidence, such that the parties become mere objects of inquiry rather than the directors of the trial. In contrast to the inquisitorial system, the United States' adversarial system assigns the primary responsibility for the development and presentation of evidence to the parties themselves. In the adversarial system, an impartial fact finder decides a case based on the conflicting evidence presented by opposing parties. The depiction above, however, describes not a trial governed by the inquisitorial system of justice, but rather a recent trial in the Eastern District of New York.

Commentators and courts are currently questioning the efficacy of our jury system. Some view the system as too rigid and unreliable a truth-finding body. These critics suggest altering aspects of the jury system, and most recommend alterations that encourage a more active and involved jury. One such proposed alteration would permit the jury to pose questions to witnesses during trial. Many jurisdictions are either considering or are currently experimenting with the use of juror questioning.