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Supreme Court, Kings County, New York.

The PEOPLE of the State of New York, Plaintiff, v. Simeon AULDER, Defendant.

Decided: August 14, 2002

Legal Aid Society, Brooklyn (Nannette Kripke of counsel), for defendant. Charles J. Hynes, District Attorney, Brooklyn (Glenn Singer of counsel), for plaintiff.

Defendant is charged with Criminal Sale of a Controlled Substance in the Third Degree, as the result of a “buy and bust” operation.1  A jury trial was conducted before this court.2  During the prosecution's direct examination of their first witness, a juror raised her hand, as if in a classroom, in an effort to get the court's attention.   She then asked if she could pose a question to the witness.3  The court advised the juror that it would not entertain probative questions of witnesses from individual jurors prior to jury deliberations.4  This decision will explain the legal basis for that decision.

Under New York's Criminal Procedure Law there is no statutory provision permitting, or authorizing, the questioning of a witness by a member of a jury (see CPL §§ 260.30;  310.30).

New York's Pattern Jury Instructions for civil cases contains a general instruction for courts to give if a juror seeks to ask a question of a trial witness (PJI3d 1:104 [2001] ).5  The commentary cites People v. Knapper, 230 App.Div. 487, 492, 245 N.Y.S. 245 for the proposition that “[t]o what extent under the circumstances peculiar to the trial of each cause (sic) questions should be permitted by jurors is a matter that should be left to the discretion of the trial court.”   The commentary also notes that federal court judges have the discretion to permit, or deny, the questioning of a witness a by trial juror (citing United States v. Lewin, 900 F.2d 145;  United States v. Land, 877 F.2d 17, cert. denied 493 U.S. 894, 110 S.Ct. 243, 107 L.Ed.2d 194;  DeBenedetto by DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512;  United States v. Callahan, 588 F.2d 1078, cert. denied 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33;  United States v. Witt, 215 F.2d 580, cert. denied 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697).

In Knapper, 245 App.Div. 487, 245 N.Y.S. 245, the defendant appealed his conviction on the basis that the trial court improperly refused to permit jurors to ask questions of a prosecution witness.6  The Appellate Division, First Department, held that the decision to allow jurors to ask questions of a trial witness “is a matter that should be left to the discretion of the trial court” (Knapper, 245 App.Div. at 492, 245 N.Y.S. 245).

In People v. Riley, 92 A.D.2d 576, 459 N.Y.S.2d 332, the defendant appealed from a conviction in which the trial court had instructed an inquisitive jury that there was no procedure whereby a juror could ask a question during the course of a trial.   The Appellate Division, Second Department, citing Knapper, held that the court's statement was erroneous but not preserved for appeal.7

In People v. Wilds, 141 A.D.2d 395, 529 N.Y.S.2d 325, the defendant appealed the trial court's decision to permit jurors to spontaneously comment upon and pose questions to trial witnesses, without prior court approval.   The Appellate Division, First Department, citing Knapper, held that because the trial court permitted jurors to comment upon and ask questions to witnesses, without court approval or monitoring, the court had abused its discretion and had permitted the jurors to engage in premature deliberations.   The appellate court advised that “the better practice is for the Trial Court to instruct the jury, prior to the taking of testimony, to submit all inquiries, comments, or questions in writing, in order that the Trial Court can insure that the inquiry, comment, or question is in legally proper form, and not prejudicial” (Wilds, 141 A.D.2d at 397, 529 N.Y.S.2d 325).

In People v. Bacic, 202 A.D.2d 234, 608 N.Y.S.2d 452, lv. denied 83 N.Y.2d 1002, 616 N.Y.S.2d 483, 640 N.E.2d 151, defendant appealed a trial court's decision to permit jurors to submit written questions so the court could determine whether such questions should be posed to a trial witness.   The Appellate Division, First Department, citing Wilds and Knapper, held that it was “within the trial court's discretion to permit jurors to submit written questions of a witness, striking those it deemed improper and posing the rest to the witness” (Bacic, 202 A.D.2d at 235, 608 N.Y.S.2d 452).

Since the decision rests in the discretion of the trial court, it is my practice not to permit jurors to submit questions for trial witnesses.   Such practice would run the risk of turning jurors into advocates, possibly compromising their neutrality (United States v. Thompson, 76 F.3d 442, 448;  United States v. Bush, 47 F.3d 511, 515;  United States v. Johnson, 892 F.2d 707, 713 [Lay, C.J., concurring] ).   In my opinion, it would be difficult for jurors to be both active participants in the adversary process, embroiled in the questioning of witnesses, and at the same time detached observers, passing on the credibility of the witnesses and the plausibility of the facts presented (Johnson, 892 F.2d at 713).

“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” (Bush, 47 F.3d at 515).  At the very least, jury questioning of trial witnesses is a subliminal invitation to launch prematurely into evaluating the evidence (DeBenedetto, 754 F.2d at 517).

Furthermore, jury questioning also creates the risk that jurors will ask prejudicial or otherwise improper questions (Johnson, 892 F.2d at 713).  “Most jurors have no training in the law, and cannot be expected to know what is admissible under the rules of evidence.   Prejudicial lines of questioning vigorously pursued carry the added vice that a fellow juror's imprimatur will lend the questions and answers added cachet” (Bush, 47 F.3d at 515).

The case before the court is a routine “buy-and-bust” case.   It does not involve any “factual intricacies” (United States v. Ajmal, 67 F.3d 12, 14).  There appears to be no apparent need for any juror to question the prosecutor's witnesses, especially during the course of that witness' direct examination.

Accordingly, this court will not permit jurors to ask questions directly of witnesses during the course of the trial.


1.   Defendant is also charged with Criminal Possession of a Controlled Substance in the Seventh Degree.

2.   The trial resulted in a hung jury.

3.   Upon inquiring of the juror, without hearing the actual question, the court determined that the question was of a substantive nature, with respect to the case on trial.

4.   No objection was made by either party to this court's decision not to entertain questions from the jury.

5.   “If any of you has a question to ask a witness or the court, please write the question on a paper, and the court officer will deliver the question to me.   For legal reasons, I must decide whether and how the question may be asked, and what procedure to follow.”

6.   The jury also proposed asking the defense attorney a question while the attorney was explaining a diagram to the jury.   The question asked called for an answer that the attorney was not competent to give.   The juror's proposed question was later addressed by a trial witness.

7.   The court notes that the defendant in the pending matter did not preserve this issue for appeal (see People v. Silvagnoli, 251 A.D.2d 76, 77, 674 N.Y.S.2d 21, lv. denied 92 N.Y.2d 882, 678 N.Y.S.2d 29, 700 N.E.2d 567).


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