KRE) 614(c) provides that a trial court may permit a juror to ask a question of a trial witness by submitting the question to the judge.
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Kentucky Rule of Evidence (KRE) 614(c) provides that a trial court may permit a juror to ask a question of a trial witness by submitting the question to the judge. The judge will then decide in his or her discretion whether to submit the question to the witness. Under KRE 614(d), any objections to a juror question “may” (and obviously should) be made outside the hearing of the jury. Professor Lawson’s Kentucky evidence treatise refers to the practice of permitting juror questions as being “deeply rooted” in Kentucky common law. See Lawson, Kentucky Evidence Law Handbook § 3.25 at p. 269 (5th ed. 2013) (citing Slaughter v. Com., 744 S.W.2d 407 (Ky. 1987) (providing that jurors should be permitted to pose questions that are “pertinent and competent”)).
Other than KRE 614, Lawson’s observation of the practice, and the Slaughter case, there was not much in the way of modern case law or authority in Kentucky to instruct trial judges and litigators on any particular procedural or substantive considerations for allowing juror questions, until the Kentucky Supreme Court issued its opinion in Fraser v. Miller, 427 S.W.3d 182 (Ky. 2014). In that medical malpractice case, a juror sought to ask a question during the plaintiff’s case-in-chief relating to a causation issue. The problem was that the question was presented the day after the plaintiff’s expert witness testified, when the witness had already returned to another state. The plaintiff sought to depose the departed witness by telephone and then offer his testimony on rebuttal. The trial court ruled that the plaintiff could not present the additional testimony to address the juror’s question on rebuttal, primarily because it did not constitute proper rebuttal testimony.
The Supreme Court, in an opinion by Justice Cunningham, discussed CR 43.02 relating to the order of proof at trial, and noted that a trial court has discretion to regulate the order of presentation of proof at trial. The Court held that the trial court properly denied the plaintiff’s request to have the expert address the juror’s question on rebuttal since the issue arose on plaintiff’s case-in-chief and was not true rebuttal. The Court also stated that the causation issue raised by the juror’s question was “not a critical issue” that was pertinent to the expert’s testimony. Finally, the holding offered this guideline for juror questions to be asked at trial: the trial judge should advise the jury at the beginning of the trial that any juror questions for a witness must be posed while the witness is still on the stand.
Thus, the opinion suggests that trial judges and lawyers should carefully scrutinize a juror’s question, not just to see it is ” pertinent and competent” (to borrow the phrase from Slaughter), but also to make sure it is timely.
David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.