Responding to the Jury’s "Inconvenient Request" To Rehear Testimony 
Part II – Special Instructions

by Thomas Lundy

As discussed in "Part I – Issues and Procedures" (see Champion March 2008, pp. 58-60), there are a number of different options available in responding to a juror request to rehear testimony. However, regardless of how the juror request is answered, special instructions are likely to be necessary. This article will discuss examples of instructions which may be appropriate. In evaluating such instructions it is important to bear in mind that the precise words to be used by a judge when responding to a jury during deliberations can "be . . . decisive." (Frantz v. Hazey (9th Cir. 2008) 513 F.3rd 1002, 1020.)

A. Pretrial Instructions Regarding Readback Policy

The question of whether or not to inform the jurors before trial of their right to request a readback of testimony is an important one. Such an instruction may have a bearing on how well the jurors listen to the testimony and how extensively the jurors take notes. The sample instructions that follow reflect two different approaches to the question. One option is to inform the jurors that they will not be given written transcripts of the testimony without expressly stating that any transcript or readback request will be denied. [Footnote 1] Another approach is to more expressly (and accurately) inform the jurors that a readback of testimony may be requested but will not necessarily be granted.

At the end of the trial you must make your decision based on what you remember of the evidence. You will not have a written transcript of the testimony to review. You must pay close attention to the testimony as it is given.

[Model Criminal Jury Instructions - Third Circuit – 2006 [1.05 Note Taking by Jurors, Option 1, Paragraph 1].]

* Use the word "play" if electronic recording system is used and testimony will be "played" back rather than read back to the jury.

[8th Circuit Model Instructions 2006 [1.06 No Transcript Available [Note-taking], Paragraph. 1].]

You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for use in reaching your decision in this case.

[Pattern Criminal Jury Instructions – Federal Judicial Center 1988 [3 Note Taking by Jurors].]

At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript of the trial. I urge you to pay close attention to the testimony as it is given.

[9th Circuit Model Instructions 2000 [1.10 No Transcript Available to Jury.]*]

If, during deliberations, any of you have a question about any part of the testimony or desire information upon any point of law in the case, you may send out a note making this request.

[See Minnesota Jury Instruction Guides - Criminal, CRIMJIG § 3.08 [Jury May Return For Information] (West, 4th ed. 1999)].]

A deliberating jury’s request for readback or transcripts of certain testimony may reflect the jurors’ "intent to emphasize a specific portion of the trial. . . ." (U.S. v. Hernandez (9th Cir. 1994) 27 F.3d 1403, 1408-09.) Hence, to avoid undue emphasis the judge is well within his or her discretion to deny a requested readback for that reason. (See U.S. v. Nolan (9th Cir. 1983) 700 F.2d 479, 486; U.S. v. Escotto (2nd Cir. 1997) 121 F.3d 81, 84 [noting view that "unsupervised access to written transcripts poses and enhanced danger that jurors may unduly emphasize discrete sections of the trial testimony . . ."]; U.S. v. Rodgers (6th Cir. 1997) 109 F.3d 1138, 1145 [recognizing "the natural tendency of a deliberating jury to focus on the testimony it has requested"].) [Footnote 2]

Accordingly, when the jurors’ request to rehear testimony is granted a cautionary instruction addressing the issue of undue emphasis may be appropriate. (See e.g., U.S. v. Gengo (2nd Cir. 1986) 808 F.2d 1, 4 [jury instructed that legal sufficiency of the charges "must be assessed on the whole record"].) In fact, some courts have held that such an instruction "represents the minimum amount of protection a [trial court] should provide if it grants a deliberating jury’s request for testimony." (Rodgers, 109 F.3d at 1145; see also U.S. v. Lujan (9th Cir. 1991) 936 F.2d 406, 411-12 [district court must, inter alia, "admonish the jury to weigh all of the evidence and not to focus on any portion of the trial"].)

CAVEAT: As with most cautionary/limiting instructions, counsel’s failure to request the instructions may be considered a waiver for purposes of appeal. (See e.g., U.S. v. Rodgers (6th Cir. 1997) 109 F.3d 1138, 1145; U.S. v. Medina Casteneda (9th Cir. 2008) 511 F.3d 1246.)

Keep in mind that you should consider this testimony together with all the other evidence. Do not consider it by itself, out of context. Consider all the evidence together as a whole.

[6th Circuit Pattern Jury Instructions - Criminal 9.02 [Rereading of Testimony] ¶ 2 (2005 Edition).]

You must weigh all the evidence. You must not give undue credence to any single part of it.

[See U.S. v. Betancourt (6th Cir. 1988) 838 F.2d 168, 175.]

You must not focus only on the particular answers given by this particular witness. You must consider the testimony of all witnesses as a whole.

[See U.S. v. Epley (6th Cir. 1995) 52 F.3d 571, 578-79.]

You have been returned to the courtroom because you requested a readback of testimony. By allowing this testimony to be read to you I do not intend to emphasize it over any other part of the evidence received during this trial.

[See Ohio Jury Instructions, Volume 4 - Criminal, OJI 415.10 [Additional Instructions on Matters of Law] ¶ 2 (Anderson, 2000).]

Carefully consider the testimony which is being read back along with all the other evidence. Do not give the testimony undue emphasis simply because it has been read back to you.

[See Leach v. State (TN 1977) 552 S.W.2d 407, 408; cf. Tennessee Pattern Instructions - Criminal, T.P.I.-Crim 43.13 (West, 5th ed. 2000).]

D. Undue Emphasis: Keep In Context Of Witness’s Entire Testimony

In light of the danger that the jurors may consider their requested testimony out of its context, the jurors should receive both the direct and cross-examination of the requested testimony even if they only requested one or the other. (See e.g., State v. Muhammad (N.J. 2003) 820 A.2d 70, 82 [" . . . it is the jury’s function and obligation to determine the facts based on its recollection of all of the evidence, including both direct and cross-examination of all witnesses, and jurors should not place any extra emphasis on portions of testimony played back."].) It follows that the jurors should be instructed to consider their requested testimony in that context. (See U.S. v. Lujan, 936 F.2d at 411-12.)

I caution you that just because your request to hear the _________ <specific jury request e.g., "direct examination"> of witness __________<insert name of witness> has been granted, you must not put any undue emphasis on that portion of [his/her] testimony. You must consider the testimony that you have requested in context with the witness’s entire testimony. You may not isolate that testimony from the rest of _________’s <name of witness> testimony or from the testimony and evidence given by all the other witnesses.

[Cf., United States v. Tines (6th Cir. 1995) 70 F.3d 891, 897.]

Ladies and gentlemen, you requested the __________ <specific jury request e.g., "direct examination"> of witness __________<insert name of witness>. However, we’ve read all of [his/her] testimony because you must consider the testimony that you have requested in the context with the witness’s entire testimony. You may not isolate that testimony from the rest of _________’s <name of witness> testimony or from the testimony and evidence given by the other witnesses.

[Cf., United States v. Zukinta (6th Cir. 1994) 1994 U.S. App. LEXIS 31350.]

Ladies and gentlemen, you requested the __________ <specific jury request e.g., "direct examination"> of witness __________<insert name of witness>. However, we’ve read all of [his/her] testimony because you must consider all the testimony of witness ____________ <name of witness> together with all the other testimony, evidence and, of course, with the Court’s jury instructions.

[Cf., United States v. Zukinta (6th Cir. 1994) 1994 U.S. App. LEXIS 31350.]

E. Transcript Not Authoritative: Jurors’ Duty To Assess Credibility

When a transcript of testimony is readback or given to a deliberating jury there is a danger that jurors may consider the transcript to be more authoritative than the actual oral testimony. (See U.S. v. Hernandez (9th Cir. 1994) 27 F.3d 1403, 1408-09 [judge is required to instruct the jurors that the transcript is "not authoritative"]; see also U.S. v. Montgomery (9th Cir. 1998) 150 F.3d 983, 999-1000 [same].)

I want you to bear in mind that the testimony at trial is the evidence, not the transcripts. The transcript is not authoritative. If you remember something different from what appears in the transcripts, your collective recollection is controlling. In other words, the transcripts may not serve as a substitute for the collective memories of the jury or take the place of the assessment of the credibility of witnesses subject to the usual rules. Also, [as the court has previously instructed you,] you must weigh all of the evidence in the case and not focus on any one portion of the trial.

[See U.S. v. Montgomery (9th Cir. 1998) 150 F.3d 983, 999-1000.]

I want you to bear in mind that the testimony at trial is the evidence, not the transcripts. The transcript is not authoritative. The transcripts may not serve as a substitute for your own assessment of the credibility of witnesses subject to the considerations and factors upon which you have already been instructed [including the demeanor of the witness[es] when [they/he/she] testified].

[See U.S. v. Montgomery (9th Cir. 1998) 150 F.3d 983, 999-1000.]

F. Transcript Not Authoritative: Jurors’ Memories Should Prevail

California’s recent Judicial Council instruction, CALCRIM 104, paragraph 5, informs the jury that, "You must accept the court reporter’s note as accurate." However, the better approach – in light of the fact that "the testimony at trial is the evidence . . ." (Montgomery, 150 F.3d at 999) – is to instruct the jurors that their memories should prevail over the written transcript.

Moreover, as a practical matter there is no reasonable basis for assuming that a reporter’s shorthand transcription will be more accurate than the jurors’ notes or recollection. (See e.g., People v. Smith (CA 2005) 135 Cal.App.4th 914, 925 [assuming juror notes were "accurate"].) To the contrary, the judicial system acknowledges the fallibility of the court reporter’s record by providing standard procedures for correcting errors in the Reporter's Transcript. (See e.g., Calif. Rules of Court Rule 35.2 [Certifying The Trial Record For Accuracy].) And, case law has long recognized the obvious reality that court reporters inevitably will make mistakes. (See People v. Huggins (CA 2006) 38 Cal.4th 175, 191 ["punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed . . ."]; Little v. U.S. (10th Cir. 1934) 73 F.2d 861, 864 [recognizing the reality that the reporter may make "a mistake in the reading of . . . shorthand symbol[s] . . ."]; People v. Williams (CA 1994) 30 Cal.App.4th 1758, 1764-65 [court reporter’s transcription of oral instructions is not an adequate substitute for copies of the written instructions].) Therefore, the jurors should be free to rely on their own recollection of the testimony even if it conflicts with the reporter’s notes.

I want you to bear in mind that the testimony at trial is the evidence, not the transcripts. The transcript is not authoritative. If you remember something differently from what appears in the transcripts, your collective recollection is controlling. In other words, the transcripts may not serve as a substitute for the collective memories of the jury.

[U.S. v. Montgomery (9th Cir. 1998) 150 F.3d 983, 999-1000.]

G. Undue Emphasis: Consideration Of "Nonverbal Testimony" Such As Witness Demeanor, Gestures And In-Court Demonstrations

A cold transcript of testimony does not reflect important evidentiary matters such as the witness’s demeanor, gestures, in-court demonstrations, etc. (See generally, Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 34:5B; G. Fred Metos, "Making a Record for Appeal," The Champion (NACDL 5/99) p. 49 [discussing the importance from an appellate perspective of clarifying matters which will not appear in the reporter’s transcript].)

Hence, when the transcript is readback or given to deliberating jurors the instructions should assure that the jurors "picture back" to what the witnesses were like when they testified and to any "nonverbal testimony" such as gestures or demonstrations.

I want you to bear in mind that the testimony at trial is the evidence, not the transcripts. The transcript is not authoritative. The transcripts may not serve as a substitute for your own assessment of the credibility of witnesses. Therefore you should picture back to what the witnesses were like as they were testifying and consider any nonverbal testimony such as gestures or demonstrations by the witnesses during their testimony.

[Cf., U.S. v. Montgomery (9th Cir. 1998) 150 F.3d 983, 999-1000 and U.S. v. Johnson (2d Cir. 2006) 192 Fed. Appx. 43, 44-45.]

Footnote 1:  The rationale for this approach is stated in the "Committee Comment" to 9th Circuit Model 1.10: "The previous version of this instruction has been modified so as to delete the suggestion that read backs are either unavailable or highly inconvenient. The practice of discouraging read backs has been criticized in United States v. Damsky, 740 F.2d 134, 138 (2nd Cir.), cert. denied, 469 U.S. 918 (1984). See also Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 5.1.F (1998).")

Footnote 2:  The danger of undue emphasis is especially high when the jurors’ readback request is made "after the jury has reported its inability to reach a verdict." (Rodgers, 109 F.3d at 1143-44 [citing and quoting U.S. v. Padin (6th Cir. 1986) 787 F.2d 1071, 1076-77.)