Responding to the Jury’s "Inconvenient Request" To Rehear Testimony
Part I – Issues And Procedures

by Thomas Lundy

I. Responding to the Jury’s Inconvenient Request to Rehear Testimony – Part I

Once the witnesses have testified, the arguments have been presented, the jury instructions have been given and the jury has been sent out to deliberate it is only natural for the judge and attorneys to turn their attention to duties in other cases. At this stage, the last thing anyone wants is to sit in court and listen to a lengthy readback of testimony to the jurors. As a result it has become commonplace to fulfill juror requests to rehear the testimony by means that do not require the judge, counsel and defendant to be present. (See U.S. v. Grant (2nd Cir. 1995) 52 F.3d 448, 449-50.) This means that the jury’s request is usually answered by sending the reporter or the reporter’s transcript into the jury room.

However, these short cut procedures undermine the fairness and reliability of the trial in violation of the defendant’s fundamental constitutional rights.

This two-part series of articles will address this topic as follows: Part I - Issues And Procedures, Part II [in next issue] - Special Instructions.

Generally, the decision of whether to grant a request for readback need not be granted absolutely and is within the discretion of the court. (See e.g., People v. Smith (NY 1996) 637 N.Y.S.2d 279, 282; see also Robison v. State (TX 1994) 888 S.W.2d 473, 480-81 [the broad discretion afforded the trial court in responding to readback notes is also recognized by other state courts]; People v. Carr (IL 1977) 368 N.E.2d 128, 133; U.S. v. Akitoye (1st Cir. 1991) 923 F.2d 221, 226.) The court may, in its discretion, grant the readback request, modify the request to either limit or expand the amount of testimony readback, or, in certain appropriate circumstances, and for reasons stated on the record, deny the readback. (See e.g., Alexander, MAINE JURY INSTRUCTIONS MANUAL 8-2 [Readback of Evidence] (Lexis, 1999).) For example, in State v. Herbert (ME 1983) 455 A2d 925, 930-31 the following factors were set forth as relevant to the course of termination of a readback request: "(1) the length of the trial; (2) the complexity of the issues; (3) the number of witnesses; (4) the amount of testimony requested to be readback; (5) the amount of other testimony that in fairness to all parties should be readback with the requested readback; (6) the importance of the requested testimony; (7) the inconvenience and loss of time to the court that may result." 

Similarly, another court identified the following factors as relevant: 

"The length of the requested readback is clearly a factor which must be considered. How recently the testimony was previously readback to the jury is another factor the court must take into account. The specificity of the readback request, the number of times the testimony has already been readback, and the amount of time the jury has had to digest and discuss the readback also appear to be relevant considerations. Finally, of course, the court must consider the positions of counsel prior to responding to any jury note." 

(People v. Smith (NY 1996) 637 NYS2d 279, 283.) 

Hence, it has been held that the trial court may refuse a request for a readback for reasons such as the following: that the trial had been brief so that the testimony was fresh in the minds of the jurors; there existed the risk of confusion and boredom if rereading was permitted; the requested testimony was too "scattered"; the testimony should not be taken out of the context; "culling the testimony would, in effect, make the court a finder of fact." (See U.S. v. Aubin (1st Cir. 1992) 961 F2d 980, 983.) 

However, it should not be "within the trial court’s discretion to announce a wholesale prohibition on readbacks. . . ." (U.S. v. Escotto (2nd Cir,. 1997) 121 F.3d 81, 84.) Moreover, in some jurisdictions a readback may be required by statute (see e.g., State v. Myers (KS 1994) 872 P.2d 236, 237) or as an inherent right of the jury. (See e.g., People v. Butler (CA 1975) 47 Cal.App.3d 273, 283; State v. Redford (KS 1988) 750 P.2d 1013, 1020; Willard v. State (WI 1928) 217 N.W. 651, 653.) Additionally, where a readback is denied over defense objection,the defendant’s federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) may be implicated. (See generally JuryInstruction.com, FORECITE National™ 283.9 [Informing The Jury Of The Right To Request A Readback Of Testimony].) 

Hence, "[w]here a close judgment call is required, a justice should err on the side of responding favorably to a reasonable jury request... The convenience of the court should not be pursued at the cost of keeping the jurors confused." (State v. Herbert (ME 1983) 455 A.2d 925, 931; see also U.S. v. Escotto (2nd Cir. 1997) 121 F.3d 81, 83 [there is a clear preference for readbacks of testimony whenever they are requested by deliberating jury]; State v. Sutkus (ME 1935) 182 A 15, 16 [same]; State v. Richardson (NJ 1986) 506 A.2d 43, 47 ["the decision of whether to grant a jury’s request for a readback of testimony rests within the sound discretion of the trial judge. However, such a request should be freely granted absent some unusual circumstance"]; State v. Sciarra (RI 1982) 448 A.2d 1215, 1220 ["trial justice should have at least inquired of the jury whether or not they wanted (a readback of the testimony)"].) 

Furthermore, even if the court finds that the jurors’ request would be too time consuming, the court should offer the jurors the option of narrowing their request. (See State v. Giglio (ME 1982) 441 A.2d 303, 310; see also JuryInstruction.com, FORECITE National™ 284.1.3 [Blanket Preclusion Of Readback Improper].) 

B. How Should The Requested Testimony Be Delivered? 

Once it is decided to grant a deliberating jury’s request to rehear the testimony, it must be decided how to fulfill that request. There are several options including: 

1) Readback of the testimony by the reporter in open court in the presence of the judge, counsel and the defendant;

2) Readback in the jury room by the reporter typically in the absence of the judge, counsel and defendant;

3) Sending trial transcripts into the jury room. 

While there are cases approving all of these options, the better practice is Option 1, readback in open court with everyone present. A readback is a critical stage of the proceedings rather than a "sterile event." (State v. Brown (2003) 827 A.2d 346, 351; see also People v. Frye (1998) 18 Cal.4th 894, 1007 [violation of the jury’s statutory right to rehear testimony "implicates a defendant’s right to a fair trial. . . ."].) 

Although a readback introduces no new matter into the trial, we have no doubt that it is a part of the trial. . . . The readback is obviously critical to the jurors’ deliberations. It is furnishing them with information they need to decide the case. That the procedure is conducted accurately and fairly is critical to the parties, including the defendant. 

(State v. Brown, 827 A.2d at 352.) 

"No harm may come of it, it is true but on the other hand, a mistake in the reading of a shorthand symbol which defense counsel would instantly detect, an unconscious or deliberate emphasis or lack of it, an innocent attempt to explain the meaning of a word or a phrase, and many other events which might readily occur, would result in irremediable prejudice to defendant." (Little v. U.S. (10th Cir. 1934) 73 Fed.2d 861, 864.) 

Even when the evidence requested by the jury is a tape recording which can be mechanistically replayed, the proceeding is still considered an important part of the trial "because it involves the crucial jury function of reviewing the evidence" (U.S. v. Kupau (9th Cir. 1986) 781 F.2d 74, 743.) [Footnote 1] Hence, a private reading in the jury room also violates the defendant’s Sixth Amendment constitutional rights to representation of counsel, confrontation, presence of the judge, and to a public trial. 

Furthermore, the private readback procedure may also impact the defendant’s appellate rights. [Footnote 2] 

In sum, counsel should assure that the readback process is no less rigorous and reliable than the process during which the testimony was originally given. This goal cannot be met unless an open-court readback is held. [Footnote 3] 

C. Reporter vs. Transcript In Jury Room 

If, not withstanding the discussion in Section B above, an open-court readback is not held, then the inquiry must turn to the differences between (1) sending the reporter into the jury room or (2) sending in the reporter’s transcript. 

According to one federal court "[i]t is . . . commonplace to send transcripts into the jury room rather than conduct lengthy reading. [Footnote omitted.]" (U.S. v. Grant (2nd Cir. 1995) 52 F.3d 448, 449-50.) However, while the Grant court and others [Footnote 4] have seen no material difference between sending the jury written transcripts of trial testimony and providing for in-court readbacks, other cases have recognized that supplying transcripts of trial testimony creates a "risk of undue emphasis on selected passages. . . ." (U.S. v. Escotto (2nd Cir. 1997) 121 F.3d 81, 84-85; see also U.S. v. Hernandez (9th Cir. 1994) 27 F.3d 1403, 1408 ["To avoid [the] possibility of undue emphasis, the preferred method of rehearing testimony is in open court, under the supervision of the court, with the defendant and attorneys present"].) 

Moreover, when the transcripts are simply sent into the jury room there is no way to know how the jurors used the transcripts. For example, there it will not be known: 

1) Whether the jurors read the transcripts aloud or silently to themselves?

2) If they were read silently did all jurors do so?

3) If some jurors read the transcripts silently on an individual basis, what did the other jurors do while the jurors read?

4) If the other jurors deliberated, did the reading juror attempt to listen to and/or participate in those deliberations?

5) Which transcripts, if any, were read?

6) What portions of the transcripts were read (e.g., only direct or portion thereof; only cross or portion thereof; entire transcript)?

7) Did the juror who read the transcripts aloud – if this was done – place any undue emphasis on certain portions of the transcript?

8) Were certain portions of the transcript read more than once so as to give them undue influence?

9) Did the juror who read the transcripts aloud do so fully and correctly? 

On the other hand, when testimony is read back by the reporter at least all the jurors hear the same thing and individual jurors are less likely to take pieces of testimony out of context. 

D. Sending Recordings Into The Jury Room 

For the same reasons discussed in Sections B and C above, when the jury requests a replay of an electronic recording admitted into evidence the replay should take place in open court with the judge, attorneys and defendant present. (See also FORECITE National™ 276.4 [Replaying Recordings During Deliberations] and 25.2.9 [Avoiding Undue Influence By Waiting To Give Jurors Exhibits Until They Request Them].) 

Even when the evidence requested by the jury is a tape recording which can be mechanistically replayed, the proceeding is still considered an important part of the trial "because it involves the crucial jury function of reviewing the evidence" (U.S. v. Kupau (9th Cir. 1986) 781 F.2d 740, 743.) [Footnote 5] Thus, for the reasons set forth in Sections B and C, above, the recording should not simply be sent into the jury room when requested by the jurors. There is a danger of undue influence when the jury is allowed to have access to taped witness statements during deliberations. (See e.g., Young v. State (FL 1994) 645 So.2d 965; Warner v. State (WY 1995) 897 P.2d 472 [poor audibility may require repeated playbacks]; Munoz v. State (WY 1993) 849 P.2d 1299, 1301; Pino v. State (WY 1993) 849 P.2d 716, 718-19.) 

Furthermore, there is a danger that the person plays the recording – if not a juror -- may intentionally or unintentionally influence the jurors by his or her actions, statements or expressions during the playback. (Cf. United States v. Kupau (9th Cir. 1986) 781 F.2d 740, 742 [jurors instructed that person playing the tape must "operate the machine solely as a mechanic and be treated as a non-entity . . ."].) 

Finally, replaying a recording in open court is necessary to provide a record of the proceeding. (See footnote 2, above; see also United States v. Kupau, 781 F.2d at 743 [error to permit the replay without a reporter present to make a record].) 

E. Jurors Should Be Given Contextual Testimony 

One of the major dangers stemming from a jury’s revisiting of the testimony during deliberations is that the revisited testimony will be taken out of context. (Cf., U.S. v. Montgomery (9th Cir. 1998) 150 F.3d 983, 999-1000 [jury admonished to "not focus on any one portion of the trial]; U.S. v. Lujan (1991) 936 F.2d 406, 411-12 [same].) 

Accordingly, even if the jury’s request is limited to a specific portion of the testimony it may be necessary to also provide them with "opposing or contrary testimony." (See People v. Balkey (Co 2002) 53 P.3d 788, 793 [citing 3 ABA Standards for Criminal Justice, Standard 15-5.2]; cf., U.S. v. Hernandez (9th Cir. 1994) 27 F.3d 1403, 1408 [government contended that danger of undue emphasis was reduced because jury was provided with "both direct and cross-examination testimony."].)

F. Redaction And Correction 

Regardless of which of the above options is used – open-court readback, jury room readback or sending transcripts into the jury room – the issues of redaction and correction will need to be addressed. 

For example, the transcripts which are read or given tot he jurors should not include matters such as bench conferences, questions or answers which were stricken, non-testimonial discussions about legal issues, etc. 

Additionally, counsel and the defendant should review the transcript for inaccuracies or omissions. Since the transcript will likely trump what was actually said in court any error or omission in the transcript will necessarily change the testimony to something that was never said in court. Thus, it has been recognized that a necessary precaution is to "provide[] counsel an opportunity to note inaccuracies in the transcript. . . ." (U.S. v. Hernandez (9th Cir. 1994) 27 F.3d 1403, 1408; see also U.S. v. Richard (9th Cir. 2007) 504 F.3d 1109, 1115.) 

Part II in the next issue: Cautionary Instructions When Transcripts Are Read Back Or Given To Deliberating Jurors. 

FOOTNOTES:

Footnote 1:  Even though Kupau analyzed the issue under Fed. Rule of Criminal Proc. 43, the reasoning also applies to the constitutional bases for the right to presence.

Footnote 2:  See Fisher v. Roe (9th Cir. 2001) 263 F.3d 906, overruled on other grounds by Payton v. Woodford (9th Cir. 2003) 346 F.3d 1204. Where there is no record of the actual readback proceeding, in other words only the reporter and jury were present, the record will not shed any light on what testimony was read back to the jury during deliberations and whether the court reporter unduly emphasized any particular testimony either by failing to read cross-examination or through improper voice inflections. Under these circumstances, the record leaves the reviewing court in a state of "virtual equipoise" as to the prejudicial effect of the error and, therefore, the error requires relief on federal habeas. (Fisher v. Roe (9th Cir. 2001) 263 F.3d 906, ______; see also O’Neal v. McAninch (1995) 513 U.S. 432, 435.)

Footnote 3:  The following cases have concluded that a readback of testimony should be conducted in open court with all parties and counsel present: State v. Brown (App. Div. 2003) 827 A.2d 346, 351-52; Commonwealth v. Peterman (1968 Pa.) 244 A.2d 723, 726; State v. Antwine (1980 Kan.) 607 P.2d 519, 529; State v. Gammill (1978 Kan.) 585 P.2d 1074, 1078; Kokas v. Commonwealth (1922 Kan.) 237 S.W. 1090, 1092; Jackson v. Commonwealth (1870) 60 Va. (19 Gratt) 656, cited at 50 ALR 2d 203];United States v. Richard (9th Cir. 2007) 504 F.3d 1109, 1121 [expressing the court’s "strong preference for readbacks taking place in open court . . ."]; United States v. Sacco (9th Cir. 1989) 869 F.2d 499, 502, " . . . the preferred method of rehearing testimony is in open court, under the supervision of the court, with the defendant and attorneys present"]; Florida Pattern Instructions, Inst 4.4 READ-BACK OF TESTIMONY ["NOTE ON USE Any read-back of testimony should take place in open court. Transcripts or tapes of testimony should not be sent back to the jury room. Comment This instruction was adopted in 2007 [SC05-1091"].

Footnote 4:  See e.g., U.S. v. Escotto (2nd Cir. 1997) 121 F.3d 81, 84-85; U.S. v. Montgomery (9th Cir. 1998) 150 F.3d 983, 1000; 793; United States v. Bertoli (3d Cir. 1994 40 F.3d 1384, 1400; United States v. Zarintash (3d Cir. 1984) 736 F.2d 66, 70); People v. Balkey (Co. 2002) 53 P.3d 788.)

Footnote 5:  Even though Kupau analyzed the issue under Fed. Rule of Criminal Proc. 43, the reasoning also applies to the constitutional bases for requiring such proceedings to be held in open court]; see also Bustamante v. Eyman (9th Cir. 1972) 456 F.2d 269, 271 [attorney’s waiver of client’s presence when tape recording was replayed to jury required reversal and remand].