DeBenedetto by DeBenedetto v. Goodyear Tire & Rubber Co.

• Decision Date: 16 January 1985
• Docket Number: Nos. 83-1028,s. 83-1028
• Citation: 80 A.L.R.Fed. 879,754 F.2d 512
• Parties: , 17 Fed. R. Evid. Serv. 433 Melissa E. DeBENEDETTO, a minor by her Guardian ad Litem, Frances DeBENEDETTO, Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, Appellee. Deborah Samluk DRIER, Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, Appellee. (L), 83-1029.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 512

754 F.2d 512

80 A.L.R.Fed. 879, 17 Fed. R. Evid. Serv. 433

Melissa E. DeBENEDETTO, a minor by her Guardian ad Litem, Frances DeBENEDETTO, Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, Appellee.

Deborah Samluk DRIER, Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, Appellee.

Nos. 83-1028(L), 83-1029.

United States Court of Appeals Fourth Circuit.

Argued May 7, 1984.

Decided Jan. 16, 1985.

George E. Campsen, Jr., Charleston, S.C. (Fred Thompson, III, Charleston, S.C., on brief), for appellants.

Robert H. Hood, Charleston, S.C. (V. Claire Allen, Sincker Gibbs & Simons, Charleston, S.C., on brief), for appellee.

Before WINTER, Chief Judge, CHAPMAN, Circuit Judge, and MICHAEL, ^* District Judge.

MICHAEL, District Judge:

Deborah Samluck Drier and Melissa E. DeBenedetto (by her guardian ad Litem, Frances DeBenedetto) appeal from the jury verdict in favor of the defendant Goodyear Tire & Rubber Company (Goodyear) in these consolidated product liability cases. Appellants assert that the trial court committed three reversible errors in the conduct of the trial: (1) seating an eight-member jury, with seven of those jurors deliberating; (2) allowing the jurors to question witnesses during the trial; and (3) refusing to allow publication of certain interrogatories and answers by the defendant. Appellants further claim that they were deprived of a fair trial by the defendant's failure to produce a specified document during discovery and by statements made by defense counsel during closing argument. Despite the reservations stated herein about the practice of allowing questions by jurors, we find no reversible error.

I.

The jury for the trial of these consolidated cases was selected on October 4, 1982. The trial began on October 11, 1982, and ended on October 29, 1982. Prior to the jury selection, the trial judge fully explained to counsel and to the venire the procedure to be followed. Sixteen names were drawn from the jury venire. Each side was allowed four strikes, resulting in an eight-member jury, none of whom was designated as an alternate. The trial judge indicated that all eight jurors would deliberate if they were present at the close of the case. Neither counsel objected to this procedure.

On the second day of the trial, counsel for the defendant revealed a previously undisclosed conflict of interest involving one of the jurors. The trial judge did not excuse the juror on that day but, upon further consideration of the matter, excused the juror the following morning. Goodyear moved for a mistrial based on the number of jurors. The trial judge denied Goodyear's motion and the trial continued with a seven-member jury. All seven jurors deliberated and reached a verdict for Goodyear. Appellants DeBenedetto and Drier now assert that the departure from the standard jury size without the written agreement of counsel is error per se.

Fed.R.Civ.P. 48 allows the parties to stipulate to a jury of any number less than twelve. However, in 1978, the District of South Carolina adopted a local rule which states:

In all civil cases tried in the United States District Courts for the District of South Carolina, the issues may be submitted to juries of six (6) or twelve (12) jurors, at the discretion of the trial judge.

In Kuykendall v. Southern Railway Co., 652 F.2d 391, 392 (4th Cir.1981), this court held that departures from these authorized jury sizes are permitted only "by a written stipulation or one clearly recorded". There was no written stipulation regarding the jury size in this case. The issue, therefore, is whether there was a "clearly recorded" agreement to the departure from the local rule.

There is no question but that the trial judge clearly explained the intended procedure for the jury selection and deliberation. Counsel made no objection at that time; only after the eighth juror was excused did counsel for Goodyear protest. This objection reflects the understanding that all eight jurors would deliberate at the close of the case. At no time did counsel for DeBenedetto and Drier question the jury composition.

Appellants insist that their silence cannot be construed as a "clearly recorded" agreement on the jury size. However, the "clearly recorded" requirement must be viewed in light of the concerns expressed by the Kuykendall court. Those concerns were succinctly stated as follows:

If there is to be departure from established procedures, misunderstandings by lawyers to the possible disadvantage of their clients can be avoided only if the departure is by a written stipulation or one clearly recorded.

652 F.2d at 392. Unlike Kuykendall, where defense counsel understood that there were six jurors and two alternates rather than eight regular jurors, there is nothing in the record of this case to indicate--and counsel do not argue--that anyone assumed that the seventh and eighth jurors were alternates. Regardless of whether assent through silence will always satisfy Kuykendall, in this case there was no misunderstanding and, therefore, no prejudicial harm.

Appellants rely on United States v. Chatman, 584 F.2d 1358 (4th Cir.1978), and United States v. Virginia Erection Corp., 335 F.2d 868 (4th Cir.1964), as support for their contention of per se error. Those cases involve deliberation by an unauthorized person and are inapplicable to this case where all persons deliberating were authorized jurors.

II.

The second assignment of error is based on the trial court's decision allowing jurors to question witnesses. ¹ Appellants maintain that since the Federal Rules of Evidence do not explicitly permit this practice, it is error for a trial court to permit it.

First, as an important point in the ultimate decision on this issue, we note that appellants did not object during the trial either to the policy of allowing questions by jurors or to any specific juror question. Appellants indicate that they did not object because they did not want to risk alienating the jury. This argument has some merit with regard to objections to a specific question. However, counsel certainly must have had opportunities during a three-week trial to object and to put on the record--outside the presence of the jury--their objection to an individual question or to the entire practice of juror questioning. Where there is no objection in trial below, this court ordinarily does not consider the issue. Nevertheless, because of the way we view this matter, we address the merits of this issue.

The Federal Rules of Evidence neither explicitly allow nor disallow the practice of permitting jurors to question witnesses. The only guidance to be found is in Fed.R.Evid. 611(a) which instructs the court to "exercise reasonable control over the mode and order of interrogating witnesses...." Those courts considering the propriety of juror questions have concluded that it is a matter within the discretion of the trial judge. See, e.g., United States v. Callahan, 588 F.2d 1078 (5th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979); United States v. Witt, 215 F.2d 580 (2d Cir.), cert. denied, 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697 (1954). In Callahan, the court advised the jury, before opening statements, that it would permit jurors to submit in writing to the court any question a juror might wish to put to a witness, and, if not legally improper, the judge would put the question to the witness. Only one question from a juror was thus submitted; this question was "relatively innocuous and could have had no measurable impact on the outcome". 588 F.2d at 1086. In Witt, the opinion recites only that: "During the trial, some of the jurors, with the judge's consent, put questions to witnesses and received answers. We think that a matter within the judge's discretion like witness-questioning by the judge himself, ...." 215 F.2d at 584. The brevity of the treatment of the point in the Witt opinion may well indicate that the appellate court considered the questions to be of the same "relatively innocuous" character as the questions in Callahan.

While we agree that allowing juror questions is a matter within the discretion of the trial court, we do not agree that such questions are analogous to or even comparable to questioning of witnesses by the judge. Suffice it to say that the judge is not "an umpire or ... moderator at a town meeting," but he sits "to see that justice is done in the cases heard before him." United States v. Rosenberg, 195 F.2d 583, 594 (2d Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952), quoting Simon v. United States, 123 F.2d 80, 83 (4th Cir.), cert. denied, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941). One simply cannot compare the questioning by the trial judge--who is trained in the law and instructed to "see that justice is done"--with the questioning by members of the jury--who are untutored in the law, and instructed to sit as a neutral fact-finding body. Thus, we believe that juror questioning and questioning by the trial judge are clearly and properly distinguishable, although both forms of questioning are matters within the trial court's discretion.

Notwithstanding our belief that juror questioning is a matter within the trial court's discretion, we believe that the practice of juror questioning is fraught with dangers which can undermine the orderly progress of the trial to verdict. Our judicial system is founded upon the presence of a body constituted as a neutral factfinder to discern the truth from the positions presented by the adverse parties. The law of evidence has as its purpose the provision of a set of rules by which only relevant and admissible evidence is put before that neutral factfinder. Individuals not trained in the law cannot be expected to know and understand what is legally relevant, and perhaps more importantly, what is legally admissible.

Since jurors generally are not trained in the law, the potential...