COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Fitzpatrick 

Argued at Richmond, Virginia 

WESLEY SHAMEL WILLIAMS 

 OPINION BY 

v. Record No. 0874-96-2 JUDGE SAM W. COLEMAN III 

 APRIL 22, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Donald W. Lemons, Judge 

 Craig S. Cooley (Betty Layne DesPortes; 

Steven D. Benjamin and Associates, on 

briefs), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 In this appeal, we consider for the first time in Virginia 

whether a trial court may permit a juror in a criminal case to 

submit a question to be asked of a defense witness. The trial 

court received a juror's question in writing, read the question 

in open court in the presence of counsel, the jury, and the 

witnesses, and then permitted counsel to ask additional questions 

in order to clarify the uncertainty in the evidence described by 

the juror's question. The trial judge did not inform counsel of 

the content or nature of the question before reading it. We hold 

that the trial court did not abuse its discretion by the 

procedure it adopted for receiving and handling the juror's 

question. Accordingly, we affirm the defendant's convictions. 

 Wesley Shamel Williams appeals his convictions for first 

degree murder, use of a firearm in the commission of a felony, 
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and possession of a firearm by a convicted felon. At trial the 

sole factual dispute was whether the defendant or another man 

shot the victim. 

 During cross-examination of the defendant's first witness, a 

juror indicated to the judge that he wanted to have the witness' 

testimony clarified as to the positions of the defendant, the 

victim, and another man when the victim was shot. The judge 

directed the juror to submit the question in writing. After the 

Commonwealth's attorney completed her cross-examination, the 

judge asked the juror whether his question had been answered. 

The juror replied that he was still confused. 

 At a side bar conference, during which the judge did not 

inform counsel of the content of the juror's question, defense 

counsel objected, stating, "I think this is dangerous for the 

jury to start beginning with lots of questions." The judge 

ruled: 

 I am going to be limiting, to allow the jury 

to tell the Court that they are confused 

about something. I'm not going to let jurors 

question witnesses, but I am going to let 

them tell me if they want a question 

answered. It's going to be limited. Your 

objection is noted for the record. 

The judge then read the question aloud in open court: 

 This written question was a statement from 

one of the jurors, which I will read to you. 

 When the Commonwealth was questioning Otis 

about the positions of and directions that 

 . . . [they] were facing, the directions in 

which each were facing was unclear. I would 

like to have these facts clarified if I 

might. Thank you. Does that prompt any 

further questions for you Ms. Cardwell [the 
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Commonwealth's attorney]? 

The trial judge did not direct the question to the witness. 

Rather, he permitted the Commonwealth's attorney to further 

cross-examine the witness about the positions of the people 

during the shooting. After the Commonwealth's attorney's 

questioning, the judge stated, "We're not going to have this 

process go on like that. I'm sorry. Go ahead." Defense counsel 

then conducted redirect examination of the witness. 

 "[T]he conduct of a trial is committed to the sound 

discretion of the trial court." Justus v. Commonwealth, 222 Va. 

667, 676, 283 S.E.2d 905, 910 (1981), cert. denied, 455 U.S. 983 

(1982); Cunningham v. Commonwealth, 2 Va. App. 358, 365, 344 

S.E.2d 389, 393 (1986). Juror questioning of witnesses is an 

issue of first impression in Virginia.1 The issue of interactive 

juries or questioning by jurors has been considered in many 

jurisdictions. The majority of courts that have considered the 

issue have held that the trial court may, in the exercise of its 

sound discretion, permit juror questioning, but the court should 

take precautions to avoid the potential for abuse or prejudice. 

 The federal circuit courts have uniformly held that the 

propriety of juror questioning is a matter committed to the sound 

discretion of the trial judge. See, e.g., United States v. Bush, 

 

 1 In Federal Dep. Ins. Corp. v. Mapp's Ex'r, 184 Va. 970, 

983, 37 S.E.2d 23, 28-29 (1946), the Virginia Supreme Court 

refused to rule on a plaintiff's assignment of error to a juror's 

questioning of a witness because the trial court's ruling on the 

issue was not adverse to the plaintiff. 
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47 F.3d 511 (2d Cir. 1995); United States v. Cassiere, 4 F.3d 

1006 (1st Cir. 1993); United States v. Lewin, 900 F.2d 145 (8th 

Cir. 1990); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 

512, 515 (4th Cir. 1985); United States v. Callahan, 588 F.2d 

1078 (5th Cir.), cert. denied, 444 U.S. 826 (1979). However, 

while recognizing the trial court's discretion, many federal 

courts discourage the practice due to the potential for prejudice 

or abuse. Some courts express concern that jurors, by taking an 

active role in the adversarial process, will become inquisitors, 

thereby compromising their neutrality. See United States v. 

Thompson, 76 F.3d 442, 448 (2d Cir. 1996); Bush, 47 F.3d at 515 

("It is difficult for jurors to be both active participants in 

the adversarial process, embroiled in the questioning of 

witnesses, and detached observers, passing on the credibility of 

witnesses and the plausibility of the facts presented."). Also, 

juror neutrality will often appear to be compromised because the 

questions posed are often in the form of commentary on the 

evidence. See Bush, 47 F.3d at 515. 

 Jurors, who are unfamiliar with the rules of evidence, are 

more likely to ask objectionable or prejudicial questions, see

DeBenedetto, 754 F.2d at 516, which places counsel in the 

difficult position of possibly alienating the jury by objecting 

or suffering the prejudice by remaining silent. See Bush, 47 

F.3d at 515. Other courts have expressed concern that juror 

questioning may encourage premature jury deliberation and that 
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the impact of one juror's questions may unduly impact another 

juror's independent thought process. DeBenedetto, 754 F.2d at 

516. 

 A majority of state appellate courts also hold that juror 

questioning lies within the trial judge's sound discretion. See

3 John H. Wigmore, Evidence § 784a (Chadbourn rev. 1970); 98 

C.J.S. Witnesses § 351 (1957 & Supp. 1996). But see Morrison v. 

State, 845 S.W.2d 882 (Tex. Crim. App. 1992) (holding that juror 

questioning is improper in a criminal case); State v. Zima, 468 

N.W.2d 377 (Neb. 1991) (same). Several jurisdictions encourage 

juror questioning in order for jurors, as the fact finders, to 

obtain a fair understanding of the facts. See Stamp v. 

Commonwealth, 253 S.W. 242 (Ky. 1923). "[A] juror may, and often 

does, ask a very pertinent and helpful question in furtherance of 

the investigation." State v. Howard, 360 S.E.2d 790, 794 (N.C. 

1987) (citation omitted). "Because the jury is the finder of 

fact, it should be permitted to ask questions which may assist in 

reaching its ultimate decision in the case." State v. Hays, 883 

P.2d 1093, 1099 (Kan. 1994). 

 In Virginia, an accused has the fundamental right to trial 

by a fair and impartial jury. See Gray v. Commonwealth, 226 Va. 

591, 592-93, 311 S.E.2d 409, 409 (1984). The function of a jury 

is to assure a fair and equitable resolution of all factual 

issues. Colgrove v. Battin, 413 U.S. 149, 157 (1973). The jury 

serves as the final arbiter of the facts, "charged with weighing 
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the evidence, judging the credibility of the witnesses, and 

reaching a verdict" in the case. Edmonson v. Leesville Concrete 

Co., 500 U.S. 614, 625 (1991); see also DeBenedetto, 754 F.2d at 

516 ("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."). A jury's factual 

findings will not be disturbed on appeal unless plainly wrong or 

unsupported by the evidence. See id.; Traverso v. Commonwealth, 

6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 

 We hold that the trial court, in the exercise of its sound 

discretion, may permit jurors to submit written questions to be 

asked of a witness. The trial court's discretion will not be 

reversed on appeal absent some prejudice caused by the 

questioning or the procedure adopted for receiving and submitting 

the questions. We do not discourage trial judges from exercising 

their discretion to permit juror questioning, provided they adopt 

procedures that assure control over the process and avoid the 

pitfalls that have potential for prejudice. 

 In this case, the trial judge did not abuse his discretion. 

 Although the record is unclear whether the trial judge 

consulted with counsel before disclosing the content of the 

question in open court, a practice which we deem to be desirable, 

see Bush, 47 F.3d at 516, it was apparent that the juror's 

question merely sought clarification from the witness about the 

location of people at the murder scene. See State v. Barrett, 
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297 S.E.2d 794, 796 (S.C. 1982), cert. denied, 460 U.S. 1045 

(1983) ("[A] juror has no more right to ask an immaterial, 

incompetent or irrelevant question than has counsel."). The 

judge did not err by permitting counsel to ask questions in order 

to clarify those facts relevant to the juror's question. See

Bush, 47 F.3d at 516. 

 The trial judge took the precaution of requiring the juror 

to submit the question in writing. See Howard, 360 S.E.2d at 795 

(requiring juror questions to be in writing and given to the 

judge); Bush, 47 F.3d at 516 (recommending that the judge ask the 

question). The process did not interrupt the examination of the 

witness. See Hays, 883 P.2d at 1102 (expressing concern about 

juror questions interrupting the order of evidence presentation 

by counsel). Also, the judge held a side bar conference, which 

gave counsel the opportunity to object to the question or 

procedure outside the jury's presence without alienating them. 

See Barrett, 297 S.E.2d at 796 ("The trial judge should 

meticulously endeavor to make it unnecessary for offended counsel 

to interpose an objection to a juror's question in his 

presence."). 

 Finally, the defendant contends that the trial court's 

statement, "[w]e're not going to have this process go on like 

that," constituted a refusal to allow other jurors to ask 

questions and restricted defense counsel's redirect. From our 

reading of the record, we do not interpret the judge's comment to 
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be a ruling that prohibited further questions from the jury or 

from defense counsel. Moreover, if defense counsel considered 

the statement to be an erroneous ruling on the right of counsel 

or jurors to ask questions, she failed to object at trial and 

cannot be heard to complain on appeal. See Rule 5A:18. 

 In summary, we hold that whether to allow juror questions is 

a matter left to the sound discretion of the trial court. Trial 

courts which permit juror questions should adopt procedural 

safeguards to avoid prejudice to the parties. In this case, the 

trial court did not err in allowing a juror question. 

Accordingly, we affirm the defendant's convictions. 

Affirmed.