(a) Juror Questionnaires.
(1) The clerk of the superior court for each county shall maintain a list of jurors presently serving, together with electronic copies of their completed Questionnaires. The clerk's office may maintain a paper copy which may be available upon request for inspection by attorneys, non-attorney representatives and parties representing themselves.
(2) The clerk's office shall permit attorneys, non-attorney representatives and parties representing themselves who have jury cases scheduled for trial during the term to have an electronic copy of the questionnaires which have been completed by the jurors presently serving. None of these persons shall reveal any information contained in the questionnaires to any person except as may be necessary in connection with the prosecution or defense of the case or cases for which access was granted.
(3) Violation of this rule may be treated as contempt of court.
(b) Voir Dire. Voir dire of the jury at the start of trial is governed by RSA 500-A:12-a.
(c) Juror Notetaking. It is within the court's discretion to permit jurors to take notes on evidence. If notetaking is allowed, after the opening statements the court will supply each juror with a pen and notebook to be kept in the juror's possession in the court and jury rooms, and to be collected and held by the bailiff during any recess in which the jurors may leave the courthouse and during arguments and charge. After verdict, the court will immediately destroy or order the destruction of all notes.
(d) Juror Questioning of Witnesses at Trial. In any civil case, it is within the discretion of the trial court to permit jurors to ask written questions. If the trial court 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 at the 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.
9. If the court decides to ask questions during trial, the following instruction will be given before the jury retires to deliberate:
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 has not been asked. I alone have made this determination, and you should not be offended, or in any way prejudiced by my determination.
(e) Communication with Jurors.
(1) Before and during trial no attorney, non-attorney representative, party or witness shall knowingly communicate directly or indirectly, with any member of the venire from which the jury will be selected, or with any juror.
(2) For 30 days after discharge of the jury venire on which a juror has served, no attorney, non- attorney representative or party shall himself or herself or through anyone acting for him or her directly or indirectly interview, examine or question any juror or member of a juror's family with respect to the trial, verdict or deliberations. At no time shall an attorney, non-attorney representative or party, or any person acting for any of them directly or indirectly ask questions of or make comments to a juror that are calculated merely to harass or embarrass the juror or to influence the juror's actions in future jury service. Upon application of any person the court may issue appropriate protective orders or impose sanctions as justice may require.
(f) Juror Questions During Deliberations. After a case has been submitted to a jury, and the jury has retired for deliberations, counsel, non-attorney representatives and self-represented parties shall not leave the courthouse without permission of the court. If counsel or non-attorney representatives are absent from the courthouse, with or without permission, when a jury requests additional instructions, such absence shall constitute a waiver of the right to be present during instructions given in response to the request.
(g) Loss of a juror. If any juror or jurors become disabled, or otherwise unavailable, during the course of a trial, the trial will continue with the jurors who remain, unless prior to the selection of the jury, a party notifies the court that the party objects to such procedure.
Adopted May 22, 2013, eff. October 1, 2013; amended November 10, 2015, eff. January 1, 2016.
2015: The 2015 amendment rewrote (a).
Rule 38 starts with juror questionnaires. The clerk keeps a list of jurors and electronic copies of their completed questionnaires. Attorneys, non-attorney representatives, and self-represented parties with a jury case on the trial term can get an electronic copy of those questionnaires, but they cannot share what's in them beyond what the case requires. Breaking that promise can be treated as contempt of court. Voir dire itself runs under RSA 500-A:12-a rather than under this rule.
The rule then turns to what happens once trial starts. Notetaking by jurors is left to the court's discretion; if allowed, jurors get a pen and notebook that the bailiff collects during recesses and arguments, and the court destroys all notes once the verdict comes in. Jurors may also be permitted to submit written questions for witnesses after each side finishes questioning that witness. The rule lays out the mechanics step by step: jurors write questions anonymously with a seat number the judge alone sees, counsel argue objections at the bench, the judge decides which questions to ask and may rephrase them, and each side gets a chance to re-examine the witness afterward. The rule even supplies model instructions a judge can read to the jury explaining the process.
Finally, the rule restricts contact with jurors before, during, and after trial, bars harassing or influence-seeking contact at any time, and gives the court power to issue protective orders or sanctions. It also addresses what happens if a juror becomes unavailable mid-trial: the case proceeds with the remaining jurors unless a party objected to that approach before jury selection began.