A MANUAL OF JURY TRIAL PROCEDURES - 2004
Go to Federal Manuals Table of Contents - Go to Procedures Table of Contents

Chapter Five: Jury Deliberations

5.2     Jury Questions During Deliberation
            A. General Procedure for Considering Jury Questions
            B. Responding to Questions from the Jury about Jury Instructions
            C. Supplemental Jury Instructions
            D. Requests for Readbacks of Testimony
            E. Materials Sent to Jury Room   

The judge should then assemble the attorneys for the respective parties, either in person or by telephone on the record. The question should be read and comments should be elicited from the attorneys regarding an appropriate response. Criminal defendants have a Sixth Amendment right to attorney representation at a conference with the judge concerning a jury's question. United States v. Barragan-Devis, 133 F.3d 1287, 1289 (9th Cir. 1998). Criminal defendants also have the right to be present, unless the subject matter concerns solely questions of law. See also § 1.6.

Occasionally, a jury's note may reveal how it stands, numerically or otherwise, on a given issue despite the court's standard instruction to the contrary. See 9TH CIR. CRIM. JURY INSTR. 7.6 (2003). While it might not be an abuse of discretion under certain circumstances to withhold the existence or nature of the jury split from counsel, United States v. Henry, 325 F.3d 93, 106 (2nd Cir.), cert. denied, 124 S. Ct. 203 (2003), in general, "district courts should reveal the existence and the contents of any and all jury notes to both sides and allow counsel to suggest an appropriate response." Id. at 105.

Moreover, the court should be especially cautious when giving an Allen charge after learning of the jury's numerical split. See § 5.4.C(4); see also United States v. Ajiboye, 961 F.2d 892, 894 (9th Cir. 1992). An Allen charge should not be given if the court learns the identity of the holdout jurors. See United States v. Sae- Chua, 725 F.2d 530, 532 (1984).

The court may reread an instruction to the jury, or advise the jury to reread an instruction in the set provided in writing. See § 4.5.C. It may reject a party's request to repeat other instructions in conjunction with the jury's question. United States v. Collom, 614 F.2d 624, 631 (9th Cir. 1979), cert. denied, 446 U.S. 923 (1980); United States v. Bay, 820 F.2d 1511, 1514-15 (9th Cir. 1987).

"[I]f a supplemental jury instruction given in response to a jury's question introduces a new theory to the case, the parties should be given an opportunity to argue the new theory . . . to prevent unfair prejudice." United States v. Fontenot, 14 F.3d 1364, 1368 (9th Cir.), cert. denied, 513 U.S. 966 (1994). See also Hannah, 97 F.3d at 1269 (holding no prejudice where court permitted additional closing argument on supplemental instructions); United States v. Warren, 984 F.2d 325, 329-30 (9th Cir. 1993); Gaskins, 849 F.2d at 458 (finding prejudice where the court gave supplemental instructions but no additional time for argument to address the new theory).

1. In General

The court has discretion to read back portions of testimony to a jury. United States v. Binder, 769 F.2d 595, 600 (9th Cir. 1985). See also Jury Requests to Have Transcripts of Testimony Read Back or Furnished, BENCH COMMENT (Fed. Jud. Center, Washington D.C.), August 1991.

Although the court has broad discretion on readbacks, it "should balance the jurors' need to review the evidence before reaching their verdict against the difficulty involved in locating the testimony to be read back, the possibility of undue emphasis on a particular portion of testimony read out of context, and the possibility of undue delay in the trial." United States v. Criollo, 962 F.2d 241, 243 (2d Cir. 1992). See also United States v. Felix- Rodriguez, 22 F.3d 964, 966 (9th Cir. 1994) (weighing need for evidence against danger of undue influence and delay).

Furnishing prior testimony may place undue emphasis on that testimony. This is particularly true when the testimony repeated to the jury directly contradicts the defendant's testimony or that of other defense witnesses. United States v. Sacco, 869 F.2d 499, 501-02 (9th Cir. 1989).

2. Cautionary Instruction Regarding Readbacks

Jurors should be told to give full consideration to the entirety of the testimony when a specific witness's testimony is read back in part or in full. United States v. Sandoval, 990 F.2d 481, 486-87 (9th Cir.), cert. denied, 510 U.S. 878 (1993). See also United States v. Hernandez, 27 F.3d 1403, 1409 (9th Cir. 1994), cert. denied, 513 U.S. 1171 (1995) ("[T]he district court permitted undue emphasis when it failed to admonish the jury to weigh all the evidence . . ..").

A cautionary instruction can mitigate the danger of undue emphasis. See United States v. Portac, Inc., 869 F.2d 1288, 1295 (9th Cir. 1989) (finding no error from testimony read back where "trial court cautioned the jury about the danger of concentrating on the testimony of only one witness and instructed the jurors to reach their decision on the basis of all of the evidence."), cert. denied, 498 U.S. 845 (1990).

3. Blanket Refusal to Provide Readback Disapproved

The Ninth Circuit has found no error, absent a showing of prejudice, in the trial judge's admonishing the jury not to abuse the readback privilege. Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995) ("[T]he trial judge's statement, 'I want you to use [the readback privilege] if you need it but please don't utilize the reporter frivolously,' did not violate Turner's constitutional rights."), cert. denied, 522 U.S. 1153 (1998), overruled in part by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999).

However, one Court of Appeals has concluded that "the district court erred in announcing before jury deliberations began a prohibition against readbacks of testimony." Criollo, 962 F.2d at 244. See also United States v. Damsky, 740 F.2d 134, 138 (2d Cir.), cert. denied, 469 U.S. 918 (1984) (discouraging readbacks by urging jurors to "exhaust [their] collective memories" first "does not seem to be a particularly wise policy"). But see United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976) (per curiam) (although not subscribing to wisdom of policy of no readbacks, not abuse of discretion where court explained its rule as being an inducement to jurors to pay close attention).

"It is error . . . for the court to deny the jury's [readback] request without consulting counsel for their views . . .." However, absent a showing of prejudice, the error is harmless. United States v. Birges, 723 F.2d 666, 671 (9th Cir.), cert. denied, 469 U.S. 863 (1984).

4. A Defendant's Right to be Present at Readbacks

Defendant has the right to be present at readbacks when defendant's absence could undermine "the fairness of the proceedings." Fisher v. Roe, 263 F.3d 906, 915 (9th Cir. 2001). See also, Turner v. Marshall, 121 F.3d 1248 (9th Cir. 1997) (harmless error on facts presented), cert. denied, 522 U.S. 1153 (1998), Felix-Rodriguez, 22 F.3d at 967-68 (concluding absence was harmless); La Crosse v. Kernan, 244 F.3d 702, 707-08 (9th Cir. 2001) (noting that while the Supreme Court has not recognized readbacks as a critical stage of the trial, triggering the defendant's right to be present, the Ninth Circuit generally recognizes this right).

Generally, recordings played during trial should not be sent to the jury room without the defendant's personal consent or waiver. "[T]he period when the jurors listen to tapes is 'properly viewed as a stage of the trial at which the presence of the defendant is required.'" See United States v. Noushfar, 78 F.3d 1442, 1444 (9th Cir. 1996) (summarizing prior cases). However, any such error is reviewed for harmlessness. Id. at 1445.