7^th CIRCUIT FEDERAL INSTRUCTIONS 1999
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Selection Of Foreperson--General Verdict

        7.01     Selection Of Foreperson--General Verdict
        7.02     Selection Of Foreperson--General Verdict As To Offense Charged--General Verdict As To Lesser Included Offense
        7.03     Separate Consideration Of Charges Single Defendant Multiple Counts
        7.04     Separate Consideration Of Charges Multiple Defendants Multiple Counts
        7.05     Communication With Court
        7.06     Disagreement Among Jurors
        7.07     Return Of Jury after Polling

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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Chapter 277: Deliberations: Foreperson

Chapter 287: Verdict

Upon retiring to the jury room, select one of your number as your foreperson. The foreperson will preside over your deliberations and will be your representative here in court.

Forms of verdict have been prepared for you.

[Forms of verdict read.]

(Take these forms to the jury room, and when you have reached unanimous agreement on the verdict, your foreperson will fill in, date, and sign the appropriate form.)

Use the paragraph which conforms to the local rule.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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Chapter 277: Deliberations: Foreperson

Chapter 287: Verdict

Upon retiring to the jury room, select one of your number as your foreperson. The foreperson will preside over your deliberations and be your representative here in court.

Forms of verdict have been prepared for you. One form is for recording your verdict that the defendant is guilty or not guilty of the crime of _____ charge in the indictment. The other form, in the event you should need it, is for recording your verdict that the defendant is guilty or not guilty of the lesser offense of _____.

[Forms of verdict read.]

If you find the defendant not guilty of the crime of ____ charged in the indictment (or if you cannot unanimously agree that the defendant is guilty of that crime), then you must proceed to determine whether the defendant is guilty or not guilty of the lesser offense of _____.

(Take these forms to the jury room, and when you have reached unanimous agreement on the verdict, your foreperson will fill in, date, and sign the appropriate form.)

OR

(Take these forms to the jury room, and when you have reached unanimous agreement on the verdict, your foreperson will fill in and date the appropriate form, and each of you will sign it.)

Use the paragraph which conforms to the local rule.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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276.7 Deliberation: Multiple Defendants

Each count of the indictment charges the defendant with having committed a separate offense.

Each count and the evidence relating to it should be considered separately, and a separate verdict should be returned as to each count. Your verdict of guilty or not guilty of an offense charged in one count should not control your decision as to any other count.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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Chapter 274 Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)

276.7 Deliberation: Multiple Defendants

Each count of the indictment charges each defendant named in that count with having committed a separate offense.

You must give separate consideration both to each count and to each defendant. You must consider each count and the evidence relating to it separate and apart from every other count.

You should return a separate verdict as to each defendant and as to each count. Your verdict of guilty or not guilty of an offense charged in one count should not control your decision as to that defendant under any other count.

There are some instances where the last line of this instruction requires modification. For example, the RICO statute requires that the government prove at least two acts which are separately indictable offenses of federal or state statutes. See United States v. Morris, 532 F.2d 436 (5th Cir.1976). Since that statute requires proof of two predicate offenses, the jury’s verdict on the RICO count may be controlled by its verdict on other counts which charge the predicate offenses.

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Chapter 283: Communication With Jury

I do not anticipate that you will need to communicate with me. If you do, however, the only proper way is in writing, signed by the foreperson, or if he or she is unwilling to do so, by some other juror, and given to the marshal.

This instruction encourages the jury to communicate with the court only by way of a writing. This will aid the trial judge in fulfilling his responsibility to maintain an accurate record of the proceedings and will guard against allegations of error. "The court should require a record to be kept of all communications received from a juror or the jury after the jury has been sworn, and he or she should not communicate with a juror or the jury on any aspect of the case itself (as distinguished from matters relating to physical comforts and the like), except after notice to all parties and reasonable opportunity for them to be present." ABA Standards for Criminal Justice, Trial by Jury Standards, Standard 15-4.1(b) (3d ed. 1996).

Counsel for both the defendant and the government should be given the opportunity to be heard before the trial judge responds to the jury’s inquiry about any matter concerning the case. Communication in the defendant’s absence is improper even though the judge merely declines to answer the jury’s question, and in United States v. Widgery, 778 F.2d 325, 327 (7th Cir.1985):

To answer a note without consulting counsel may spoil a perfectly good trial for several reasons – not only because it denies the defendant a procedural right but also because consultation may help the court to cure a general problem in the deliberations before it is too late.

778 F.2d at 327. See also United States v. Clavey, 565 F.2d 111, 118-20 (7^th Cir.1977), cert. denied, 439 U.S. 954 (1978). This rule, of course, does not prohibit ex parte communications which only involve housekeeping matters such as lunch arrangements and the like. ABA Standards, supra, and accompanying commentary.

In general, communications between the court and the jury or any member thereof in the absence of either the defendant or his counsel are improper. See United States v. Rodriguez, 67 F.3d 1312, 1316 (7th Cir.1995), cert. denied, 517 U.S. 1174 (1996) ("discussions between court and counsel regarding jury inquiries must take place on the record in the defendant’s presence"); Rogers v. United States, 422 U.S. 35 (1975); Shields v. United States, 273 U.S. 583 (1927); FRCRP 43 (guaranteeing the defendant’s right to be present "at every stage of the trial"); 3 C. Wright, Federal Practice and Procedure § 724 (1969). See also United States v. Smith, 31 F.3d 469, 471 (7th Cir. 1994); United States v. U.S. Gypsum Co., 438 U.S. 422, 459-62 (1978).

If the court does find it necessary to communicate with the jury in the absence of the defendant or counsel, the court’s response should also be in writing and preserved in the record. Moreover, the court should inform counsel for the parties of the jury’s request and the court’s response at the earliest reasonable time and afford counsel the opportunity to argue in favor of a supplemental response. See DeGrave v. United States, 820 F.2d 870, 872 (7th Cir.1987) ("We note that the court’s practice of permitting ex parte communications with the jury presents problems."); United States v. Dellinger, 472 F.2d 340, 37-80 (7th Cir.1972), cert. denied, 410 U.S. 970 (1973).

It may also be appropriate to instruct the jurors that, if any communication is made, it should not indicate the jury’s numerical division.

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Chapter 286: Deadlock

The verdict must represent the considered judgment of each juror. Your verdict, whether it be guilty or not guilty, must be unanimous.

You should make every reasonable effort to reach a verdict. In doing so, you should consult with one another, express your own views, and listen to the opinions of your fellow jurors. Discuss your differences with an open mind. Do not hesitate to re-examine your own views and change your opinion if you come to believe it is wrong. But you should not surrender your honest beliefs about the weight or effect of evidence solely because of the opinions of your fellow jurors or for the purpose of returning a unanimous verdict.

The twelve of you should give fair and equal consideration to all the evidence and deliberate with the goal of reaching an agreement which is consistent with the individual judgment of each juror.

You are impartial judges of the facts. Your sole interest is to determine whether the government has proved its case beyond a reasonable doubt.

In United States v. Silvern, 484 F.2d 879 (7th Cir.1973) (en banc), the Seventh Circuit, in the exercise of its supervisory powers, established a particular procedure for giving a supplemental instruction in the event of an apparent deadlock. First, the court required that a particular instruction, taken verbatim from Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 97-98 (1961), be given. That instruction has previously been endorsed by the ABA Project on Standards for Criminal Justice as "illustrative" of an instruction consistent with its standards. See ABA Standards, Trial by Jury 5.4, comment (approved Draft, 1968). See also United States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert. denied, 396 U.S. 1017 (1970). The Seventh Circuit held that variants of or supplements to the form instruction were unacceptable: "If in any jury trial . . . a supplemental instruction relating to a deadlock is given other than in the above form, a resulting conviction will be reversed and remanded for a new trial." 484 F.2d at 883. Second, the court required that for the supplemental instruction to be proper, the district court must have first instructed the jury on the subject before it began its deliberations: "If a supplemental instruction is deemed necessary and provided that the [form] instruction has been given prior to the time the jury has retired, it may be repeated." Id. The procedure established in Silvern governs both civil and criminal cases. Id. At 882.

The above instruction rearranges the structure and modifies the wording of the instruction required by Silvern. The Committee is of the opinion that the modifications remove what seem to be inherent inconsistencies in the Silvern instruction and better explain to the jurors what is expected of them. At the same time, the instruction is consistent with the ABA standard on the subject which has been adopted by the Seventh Circuit. The court in Silvern recognized that the form instruction mandated there was not "‘graven in stone,’" id. at 883 n. 7 (quoting United States v. Thomas, 146 U.S. App. D.C. 101, 449 F.2d 1177, 1188 (1971) (en banc), and left open the possibility of "further change in the future." Id.) The citation to Thomas is significant because there the D.C. Circuit noted "it may be that in due course some modification will emerge as appropriate, either by virtue of general reconsideration or the need for adoption to local conditions. But we think if there is to be any change in wording, it should be one that is carefully considered on a broad basis by a broadly representative body . . . that can make a wide-ranging inquiry as to the necessity for and possible consequences of modification."

As the court in Silvern recognized, the primary purpose of a required form instruction is not that it is the only acceptable means of instructing the jury in conformity with the ABA standards, but that it eliminates variants which create uncertainty and generate appeals. The Committee, although recommending changes in the language of the deadlock instruction, does not recommend abolition of the requirement that a particular form of instruction be used. The Committee therefore recommends approval of the above instruction in place of the Silvern instruction as the only acceptable deadlock charge for use in criminal cases.

As required by Silvern, this instruction may be given as a supplemental charge upon apparent deadlock only if it was also included as part of the general charge given prior to the time the jury initially retired for deliberations. However, there is no requirement that the instruction be repeated automatically whenever it appears that a jury is deadlocked. It is within the trial court’s discretion to determine whether repetition of the instruction would help the jury reach a verdict and, hence, whether the instruction should be given. United States v. Medansky, 486 F.2d 807, 813 n. 6 (7th Cir. 1973), cert. denied, 415 U.S. 989 (1974). The instruction may be repeated orally by the trial judge even though the jury already has the charge in its copy of the written instructions. See United States v. Gabriel, 597 F.2d 95, 100 (7th Cir.), cert. denied, 100 S.Ct. 120 (1979).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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287.5 Jury Poll

A poll of the jury indicates that you may not have reached a unanimous verdict. For this reason I am asking you to return to the jury room for further consideration of your verdict. [then read Instruction 7.06 -- "Disagreement Among Jurors."]

The above instruction is used only in situations where a jury poll has indicated the lack of a unanimous verdict. This is to be distinguished from the situation where the jury has reported it is unable to agree, and from the situation where the trial judge has called the jury to the courtroom to inquire whether they will be able to render a unanimous verdict. The instruction recognizes that the poll has indicated that the verdict is not unanimous and incorporates the instruction recommended by the Committee to be given in place of the "Allen" or "Silvern" charges.