THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

O R D E R

 

Pursuant to Part II, Article 73-a of the New Hampshire Constitution and Supreme Court Rule 51, the Supreme Court of New Hampshire approves, effective January 1, 2001, on a temporary basis a new Superior Court Rule 64-B as set forth in Appendix A. On or after January 1, 2002, the Advisory Committee on Rules shall undertake a review of the operation and effect of temporary Superior Court Rule 64-B. On or before June 30, 2002, the Advisory Committee on Rules shall report to the supreme court whether it recommends that temporary Superior Court Rule 64-B be made permanent, and, if so, whether any changes should be made.

November 30, 2000

ATTEST: Howard J. Zibel, Clerk

Supreme Court of New Hampshire

APPENDIX A

Amend the superior court rules by adding the following new Superior Court Rule 64-B, to read as follows:

64-B. It is within the discretion of the trial judge to permit jurors to ask written questions. If a trial judge decides to permit jurors to ask written questions at trial, the following procedure shall be utilized:

1. At the start of the trial, the judge will announce to the jury and counsel the decision to allow jurors to ask written questions of witnesses. At this time the judge will instruct the jurors on taking notes and, as to the scope of questioning, the procedure to be followed.

2. Trial will proceed in the normal fashion until questioning of the first witness has been completed by both counsel.

3. When questioning of the first witness is completed, the court will allow jurors to formulate any questions they may have, in writing. Jurors will be asked to put their seat number on the back of the question. The judge is the only person who will see the number.

4. The bailiff will collect the anonymous questions and deliver them to the judge.

5. At the bench, the judge and counsel will read the proposed questions. Counsel will be given the opportunity to make objections on the record to any proposed question after which the judge will decide if they are appropriate, based on the rules of evidence, and whether, under the circumstances of the case, the judge will exercise discretion to permit the questions.

6. Questions may be rephrased by the judge, or the judge may ask the question in a way mutually agreeable to the parties. The question should, however, attempt to obtain the information sought by the juror's original question.

7. After all the chosen questions are answered, each counsel will have an opportunity to re-examine the witness. The party who called the witness will proceed first. The judge should allow only questions which directly pertain to questions posed by the jurors. The judge may also impose a time limit. If the judge does plan to impose a time limit, counsel should be notified and given an opportunity to object to the length outside the hearing of the jury.

8. The judge shall instruct the jury substantially as follows:

A. INSTRUCTIONS TO THE JURY AT BEGINNING OF TRIAL

Ladies and gentlemen of the jury, I have decided to allow you to take a more active role in your mission as finders of fact. I will permit you to submit written questions to witnesses under the following arrangements.

After each witness has been examined by counsel, you will be allowed to formulate any questions you may have of the witness. Please remember that you are under no obligation to ask questions, and questions are to be directed only to the witness. The purpose of these questions is to clarify the evidence, not to explore your own legal theories or curiosities.

If you do have any questions, please write them down on a pad of paper. Do not put your name on the question, and do not discuss your questions with fellow jurors. The bailiff will collect the questions, and I will then consider whether they are permitted under our rules of evidence and are relevant to the subject matter of the witness' testimony. If I determine that the question or questions may be properly asked of the witness pursuant to the law, I will ask the question of the witness myself.

It is extremely important that you understand that the rejection of a question because it is not within the rules of evidence, or because it is not relevant to the witness' testimony, is no reflection upon you. Also, if a particular question cannot be asked, you must not speculate about what the answer might have been.

B. INSTRUCTIONS TO THE JURY WHEN DECISION WHETHER TO ASK QUESTIONS IS MADE

Ladies and gentlemen of the jury, I remind you of my earlier remarks regarding juror questions. Some questions cannot be asked in a court of law because of certain legal principles. For this reason there is the possibility that a question you have submitted has been deemed inappropriate by me and will not be asked. I alone have made this determination, and you should not be offended, or in any way prejudiced by my determination.

C. IN ITS DISCRETION, THE COURT MAY ADD ADDITIONAL INSTRUCTIONS.