MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part II(C) 1    Jury-Related Problems: Challenges For Cause

CAVEAT: See Publication Preface and Caveats. 

NCJIC Materials Related To This Issue:

10.1.2 Jury Selection: Right Of Defendant To Be Present At All Phases Of Jury Selection Including Bench Or Sidebar Discussions

10.1.5 Concealment On Voir Dire

If a prospective juror imparts information on voir dire that indicates an inability to be impartial or to be free from fear, that individual should be excused for cause. If this is not done, a party may have to exercise a peremptory challenge, which should not have to be exercised.

United States v. Nell, 526 F.2d 1223 (5th Cir. 1976)
United States v. Taylor, 554 F.2d 200 (5th Cir. 1977)
United States v. Daly, 716 F.2d 1499 (9th Cir. 1983)

The excusing of a prospective juror for cause must be based on a trial court's finding of actual or implied bias.

Government of Virgin Islands v. Felix, 569 F.2d 1274 (3d Cir. 1978)

The better practice is for the trial court to permit counsel to present their challenges for cause in writing or, if oral, outside the hearing of the prospective jurors. The prospective jurors should not be able to overhear the challenges for cause.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part II(C) 2    Jury-Related Problems: Peremptory Challenges

CAVEAT: See Publication Preface and Caveats. 

NCJIC Materials Related To This Issue:

10.1.2 Jury Selection: Right Of Defendant To Be Present At All Phases Of Jury Selection Including Bench Or Sidebar Discussions

10.1.5 Concealment On Voir Dire

17.4.3 If The Court Orders Juror Anonymity, Cautionary Procedures And Instruction May Be Necessary

Counsel may, in the court's discretion, be required to exercise their peremptory challenges simultaneously rather than alternately.

Pointer v. United States, 151 U.S. 396 (1894)
Carbo v. United States, 314 F.2d 718 (9th Cir. 1963)
United States v. Sarris, 632 F.2d 1341 (5th Cir. 1980)
United States v. Roe, 670 F.2d 956 (11th Cir. 1982)

When there are multiple defendants, the court may in its discretion award additional challenges to the defendants.

United States v. Harris, 542 F.2d 1283 (7th Cir. 1976)

The award of additional peremptories to the defendants is permissible, not mandatory.

United States v. McClendon, 782 F.2d 785 (9th Cir. 1986)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part II(C) 3    Jury-Related Problems: Separation Of Jury

CAVEAT: See Publication Preface and Caveats. 

NCJIC Materials Related To This Issue:

17.5 Sequestering Jury: Cautionary Instruction

It is within the discretion of the trial court to permit deliberating jurors to separate overnight.

United States v. Arciniega, 574 F.2d 931 (7th Cir. 1978)
United States v. Carter, 602 F.2d 799 (7th Cir. 1979)
Powell v. Spalding, 679 F.2d 163 (9th Cir. 1982)

It is essential to a fair trial--civil or criminal--that a jury be cautioned as to permissible conduct and conversations outside the jury room. Such an admonition is particularly needed before jurors separate at night, when they will converse with friends and relatives. It is fundamental that the jurors be cautioned from the beginning of a trial and generally throughout to keep their considerations confidential and to avoid wrongful and often subtle suggestions offered by outsiders.

United States v. WiIIiams, 635 F.2d 744 (8th Cir. 1980)

If the court permits jurors to separate overnight, it should interrogate jurors the next day to be sure that each has abided by the court's instructions to refrain from talking to anyone about the case and from reading or hearing anything about the case.

United States v. Piancone, 506 F.2d 748 (3d Cir. 1974)

The decision to sequester a jury is within the trial court's discretion.

United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (court can sequester jury even over defense objection)

The trial court may sequester the jury during trial if some event occurs that causes the court to want to avoid the risk that the jury might become exposed to some prejudicial influence if not sequestered.

United States v. Robinson, 503 F.2d 208 (7th Cir. 1974)

Sequestration is, however, the most burdensome of tools for ensuring a fair trial. It should be ordered only if no other means is available or effective.

Mastrian v. McManus, 554 F.2d 813 (8th Cir. 1977)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part II(C) 4    Jury-Related Problems: Simultaneous Use Of Two Juries

CAVEAT: See Publication Preface and Caveats. 

NCJIC Materials Related To This Issue:

16.9.1 Juror Questions To Witnesses: Procedural Issues

300.28 Severance Of Codefendants

When certain testimony is admissible against one codefendant but not against the other, the two codefendants may be tried simultaneously before two different ,juries. Only the jury trying the codefendant against whom the testimony is admissible will hear that testimony.

United States v. Hayes, 676 F.2d 1359 (11th Cir. 1982)
United States v. Hanigan, 681 F.2d 1127 (9th Cir. 1982)
United States v. Lewis, 716 F.2d 16 (D.C. Cir. 1983)
Smith v. De Robertis, 758 F.2d 1151 (7th Cir. 1985)

If multiple juries are used, the trial judge should carefully explain to them their functions and instruct them particularly not to talk about the case to anyone in the other jury.

United States v. Hayes, 676 F.2d 1359 (11th Cir. 1982)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

17.4 Juror Anonymity

The court may withhold jurors' names and addresses and other personal information if necessary to protect the jurors' safety and to guard against jury tampering.

United States v. Scarfo, 850 F.2d 1015 (3d Cir. 1988)
United States v. Crockett, 979 F.2d 1204 (7th Cir. 1992)
United States v. Ross, 33 F.3d 1507 (11th Cir. 1994)
United States v. Wong 40 F.3d 1347 (2d Cir. 1994)
United States v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

288.3 Post-Verdict Communications With Jurors Should Not Be Prohibited Without A Showing Of Good Cause

A capital defendant is entitled to receive a list of the venire members and their addresses at least three days before trial commences unless the court finds by a preponderance of the evidence that providing the list "may jeopardize the life or safety of any person."

18 USC 3432 (2001)

In re Baltimore Sun Co., 841 F.2d 74 (4th Cir. 1988)
In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990)
United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) (court must articulate specific findings in the record as to compelling reasons for sealing jury voir dire transcript)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

Chapter 277: Deliberations: Foreperson

United States v. Burton, 737 F.2d 439 (5th Cir. 1984)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Chapter 282: Alternate Jurors

The decision to replace a juror with an alternate juror is committed to the discretion of the trial court.

United States v. Dominguez, 615 F.2d 1093 (5th Cir. 1980)
United States v. Simpson, 992 F.2d 1224 (D.C. Cir. 1993)

A sitting juror may be replaced with an alternate for reasonable cause.

United States v. Moten, 564 F.2d 620 (2d Cir. 1977)
United States v. Dischner, 974 F.2d 1502 (9th Cir. 1992)
United States v. Warren, 973 F.2d 1304 (6th Cir. 1992)

The trial court may replace a juror whenever it is convinced that a juror's ability to perform his or her duty is impaired.

United States v. Smith, 550 F.2d 277 (5th Cir. 1977) (juror napping throughout trial)
United States v. Armijo, 834 F.2d 132 (8th Cir. 1987) (juror involved in car accident)

A juror may be replaced because of illness, illness of a member of the jurors family, or family difficulties aggravated by jury service.

United States v. Brown, 571 F.2d 980 (6th Cir. 1978)
United States v. Alexander, 48 F.3d 1477 (9th Cir. 1995)

A juror may be replaced if he or she is intoxicated.

United States v. Jones, 534 F.2d 1344 (9th Cir. 1976)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

If during deliberations a juror should become temporarily incapacitated, it is permissible to suspend the deliberations for a short time in order to permit the possible recovery of the juror.

United States v. Hall, 536 F.2d 313 (l0th Cir. 1976)
Clemmons v. Sowders, 34 F.3d 352 (6th Cir. 1994) (permissible to postpone sentencing phase for a few weeks)

The Ninth Circuit has held that it is permissible to recess a trial for eleven days, after the presentation of evidence has concluded but before the commencement of closing arguments, because of the illness of one juror.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

Chapter 283: Communication With Jury

FRCRP 43(a) guarantees a defendant the right to be present "at every stage of the trial including ... the return of the verdict." Compliance with this rule requires that the trial court respond to an inquiry from the jury only in open court, after revealing its contents to counsel and giving counsel an opportunity to be heard on the matter.

Shields v. United States, 273 U.S. 583 (1927)
Rogers v. United States, 422 U.S. 35 (1975)
United States v. Diggs, 522 F.2d 1310 (D.C. Cir. 1975)
United States v. Taylor, 562 F.2d 1345 (2d Cir. 1977)
United States v. Rapp, 871 F.2d 957 (11th Cir. 1989)
United States v. Sylvester, 143 F.3d 923 (5th Cir. 1998)
United States v. McClellan, 165 F.3d 535 (7th Cir. 1999)

It is error for the trial court to communicate with the jury outside of the presence of the defendant.

Shields v. United States, 273 U.S. 583 (1927)
Rogers v. United States, 422 U.S. 35 (1975)
United States v. Nelson, 570 F.2d 258 (8th Cir. 1978)
United States v. Flaherty, 668 F.2d 566 (1st Cir. 1981) (actual communications are subject to the harmless error rule)
United States v. Smith, 31 F.3d 469 (7th Cir. 1994)
United States v. Throckmorton, 87 F.3d 1069 (9th Cir. 1996)
United States v. Sylvester, 143 F.3d 923 (5th Cir. 1998)
But see United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994) (defendant did not object to in camera ex parte interviews)

It is error for the trial court to confer with the foreperson of a jury outside of the presence of counsel and the defendant. In United States v. United States Gypsum Co., 438 U.S. 422, 460 (1978), the foreperson requested, and was accorded, a conference with the trial court in order to describe all of the difficulties that he was having with the deliberating jurors and to seek further guidance from the court.  The court held the following:

Any ex parte meeting or communication between the judge and the foreman of a deliberating jury is pregnant with possibilities for error. . . . First, it is difficult to contain, much less to anticipate, the direction the conversation will take at such a meeting. Unexpected questions or comments can generate unintended and misleading impressions of the judge's subjective personal views which have no place in his instruction to the jury--all the more so when counsel are not present to challenge the statements. Second, any occasion which leads to communications with the whole jury panel through one juror inevitably risks innocent misstatements of the law and misinterpretations despite the undisputed good faith of the participants. 

Only the trial Judge should respond to a jury inquiry. A magistrate judge may not respond to a jury inquiry.

United States v. De La Torre, 605 F.2d 154 (5th Cir. 1979)

The court clerk may not respond to a jury inquiry.

United States v. Patterson, 644 F.2d 890 (1st Cir. 1981)

The court should immediately notify counsel of any communication it receives from any juror.

United States v. Taylor, 562 F.2d 1345 (2d Cir. 1977)
United States v. Rapp, 871 F.2d 957 (11th Cir. 1989)
United States v. Maraj, 947 F.2d 520 (1st Cir. 1991)
United States v. Scisum, 32 F.3d 1479 (10th Cir. 1994)

The trial court enjoys broad discretion in responding to jury questions generally and especially in deciding whether to provide requested testimony either in written form or as read by the court reporter.

United States v. Boyd, 54 F.3d 868 (D.C. Cir. 1995)

The court should not answer questions from the jury informally in the form of a colloquy between the court and the foreperson but rather should respond in a formal way so that the defendant has adequate opportunity to evaluate the propriety of the proposed response or supplemental instruction and to formulate objections or suggest a different response.

United States v. Artus, 591 F.2d 526 (9th Cir. 1979)
United States v. Ronder, 639 F.2d 931 (2d Cir. 1981)

A trial court's ex parte questioning of a juror about impartiality does not violate the defendant's right of due process or confrontation because the defendant failed to object despite knowledge that the conference was occurring.

United States v. Olano, 62 F.3d 1180 (9th Cir. 1995)

In responding to a jury's request for clarification on a charge, the court's duty is simply to respond to the jury's apparent source of confusion fairly and accurately without creating prejudice, and the particular words chosen are left to the court's discretion.

United States v. Smith, 62 F.3d 641 (4th Cir. 1995)

Juror questions about the meaning of terms should be settled by the court after consulting with counsel.

United States v. Kupau, 781 F.2d 740 (9th Cir. 1986)

In its response to an inquiry, the trial court must be sure that it is not in effect making a finding of fact, since the jury may not enlist the court as a partner in the fact-finding process.

United States v. Walker, 575 F.2d 209 (9th Cir. 1978)    

When a jury makes explicit its difficulties with the court's instructions, the court is obligated to clear away those difficulties "with concrete accuracy." It should not simply repeat its earlier instructions.

Bollenbach v. United States, 326 U.S. 607 (1946)
United States v. Walker, 557 F.2d 741 (10th Cir. 1977)
United States v. Combs, 33 F.3d 667 (6th Cir. 1994)
United States v. McIver, 186 F.3d 1119 (9th Cir. 1999)

Armstrong v. Toler, 24 U.S. 258 (1826)
Richardson v. Marsh, 481 U.S. 200 (1987)
Weeks v. Angelone, 120 S. Ct. 727 (2000)

If the court gives an additional instruction, it should remind the jury of the prior instructions and advise the jury to consider the instructions as a whole.

United States v. L’Hoste, 609 F.2d 796 (5th Cir. 1980)

Written instructions should not be sent to the jury without notice to counsel and an opportunity to object.

Fillipon v. Albion Vein Slate Co., 250 U.S. 76 (1919)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

16.5.4 Duty To Report Juror Misconduct

16.7 Court's Duty To Inquire Into Juror Misconduct

281.1 Cross References To Jury Misconduct Issues And Instructions

The scope of an investigation into juror misconduct is within the court's discretion.

United States v. Fryar, 867 F.2d 850 (5th Cir. 1989)
United States v. Copeland, 51 F.3d 611 (6th Cir. 1995)

The court should, if possible, conceal the identity of the party that instigated the inquiry.

United States v. Doe, 513 F.2d 709 (1st Cir. 1975)

When faced with a claim of juror misconduct, the court must conduct an investigation to ascertain whether the alleged misconduct actually occurred. The court must then determine whether the alleged misconduct has so prejudiced the defendant that he or she cannot receive a fair trial.

United States v. Mirkin, 649 F.2d 78 (1st Cir. 1981)
United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981)
United States v. Estrada, 45 F.3d 1215 (8th Cir. 1995)

United States v. Powell, 512 F.2d 766 (8th Cir. 1975)
Wheel v. Robinson, 34 F.3d 60 (2d Cir. 1994)

In conducting the hearing, the trial court must be careful not to magnify the possible wrong.

United States v. Powell, 512 F.2d 766 (8th Cir. 1975)
United States v. Chiantese, 546 F.2d 135 (5th Cir. 1977)

The purpose of the hearing is to determine if even one juror is unduly biased or prejudiced so as to deny the defendant the right to an impartial panel.

United States v. Hendrix, 549 F.2d 1225 (9th Cir. 1977)

Counsel may not withhold knowledge of misconduct until after the jury starts deliberating and then have a motion for mistrial sustained.

United States v. Widgery, 636 F.2d 200 (8th Cir. 1980)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

16.2.3.4 Duty Not To Converse With Attorneys, Parties Or Witnesses

16.5 Duty To Report Exposure To Or Knowledge Of Extraneous Matters

Remmer v. United States, 350 U.S. 377 (1956)

Id. at 215. See also Rushen v. Spain, 464 U.S. 114 (1983)

United States v. Dutkel, 192 F.3d 893 (9th Cir. 1999)

The Sixth and Ninth Circuits have held that under Phillips the defendant has the burden of showing that prejudice has resulted from unauthorized juror contact.

Other circuits continue to hold that the government has the burden of proof in showing that the defendant was not prejudiced by any improper juror contact.

Stephens v. South Atlantic Canners, Inc., 848 F.2d 484 (4th Cir. 1988)
United States v. Cheek, 94 F.3d 136 (4th Cir. 1996)

United States v. DeLeon, 187 F.3d 60 (1st Cir. 1999)

If the trial court becomes aware that someone has made improper contact with a juror, the court should hold a Remmer hearing, with all interested parties permitted to participate, to determine the circumstances, the impact thereof on the juror, and whether the contact was prejudicial.

At the hearing, the court should determine whether the juror has discussed the incident with other jurors.

United States v. Butler, 822 F.2d 1191 (D.C. Cir. 1987)
United States v. Zelinka, 862 F.2d 92 (6th Cir. 1988)
United States v. Angiulo, 897 F.2d 1169 (1^st Cir. 1990)

The court should confer with counsel with respect to the procedure to be followed and the possible replacement of the juror. The court has the discretion to interrogate or not to interrogate all of the other jurors to ascertain whether any one of them has been tainted by the improper contact.

United States v. Brown, 571 F.2d 980 (6th Cir. 1978)
United States v. Adams, 799 F.2d 665 (11th Cir. 1986)
United States v. Butler, 822 F.2d 1191 (D.C. Cir. 1987)

Exposure of the jury during deliberations to transcripts that include portions of videotaped testimony deemed inadmissible at trial requires holding of Remmer hearing to allow defendant to inquire into jurors' states of mind.

United States v. Walker, 571 F.3d 423 (6th Cir. 1993)

If a juror engages in conversation with a witness during a recess, the preferable procedure is to substitute an alternate for that juror.

United States v. Bohr, 581 F.2d 1294 (8th Cir. 1978)

It is reversible error to have a deputy marshal and an FBI agent play a tape for the jury in the jury room after deliberations have begun. Jury proceedings must be free from the danger of improper influence by an interested party.

United States v. Freeman, 634 F.2d 1267 (10th Cir. 1980)
Contra United States v. Kupau, 781 F.2d 740 (9th Cir. 1986)
Lee v. Marshall, 42 F.3d 1296 (9th Cir. 1994)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

17.2 Shackling And Physical Restraint Of Defendant In Courtroom

If jurors inadvertently see the defendant in handcuffs, the court should give an instruction to the jury that no inferences are to be drawn from the fact that the defendant is in handcuffs.

Dupont v. Hall, 555 F.2d 15 (1st Cir. 1977)
United States v. Halliburton, 870 F.2d 557 (9th Cir. 1989)
But see United States v. Rutledge, 40 F.3d 879 (7th Cir. 1994) (no instruction required where defendant refused it)

It must be assumed that jurors would understand and follow a proper instruction that handcuffing of a person in custody for transportation to and from the courtroom is a reasonable precaution that in no way reflects on the presumption of innocence.

Wright v. Texas, 533 F.2d 185 (5th Cir. 1976)

If the court requires a defendant to wear physical restraints in the presence of the jury, the judge must impose no greater restraints than necessary and must take steps to minimize prejudice resulting from the presence of restraints.

Hameed v. Mann, 57 F.3d 217 (2d Cir. 1995)
See also Rhoden v. Rowland, 172 F.3d 633 (9th Cir. 1999)

As a matter of due process, shackling at the penalty phase of a capital trial is forbidden unless it serves an essential state interest and no lesser alternative will suffice.

Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995)

See Part IV(F) 4 [Shackling And Gagging Of Defendant].

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

16.8 Juror Notetaking

It is within the court's discretion to provide notebooks and pencils to jurors and to permit note taking.

United States v. Riebold, 557 F.2d 697 ( 10th Cir. 1977)
United States v. Anthony, 565 F.2d 533 (8th Cir. 1977)

If note taking is permitted, jurors should be instructed that their notes are only aids to memory and should not be given precedence over their own independent recollection of the facts, and that they must not allow their note taking to distract their attention from the proceedings.

United States v. Maclean, 578 F.2d 64 (3d Cir. 1978)
United States v. Oppon, 863 F.2d 141 (1st Cir. 1988)
United States v. Wild, 47 F.3d 669 (4th Cir. 1995)

A court may permit jurors to take notes for their personal use during trial, but forbid their use during deliberations.

Clemmons v. Sowders, 34 F.3d 352 (6th Cir. 1994)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

16.9 Questions To Witnesses By Jurors

Questioning of witnesses by jurors in open court is disapproved. If questioning by jurors is to be permitted, the questions should be submitted in writing. If the court finds the questions to be proper, the court may pose the questions in their original form or it may restate them.

United States v. Polowichak, 783 F2d 410 (4th Cir. 1986)
United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993)
United States v. Stierwalt, 16 F.3d 282 (8th Cir. 1994)
United States v. Bush, 47 F.3d 511 (2d Cir. 1995)
United States v. Feinberg, 89 F.3d 333 (7th Cir. 1996)
United States v. Hernandez, 176 F.3d 719 (3d Cir. 1999)

Courts may not exercise their discretion to allow questioning of witnesses by jurors without regard to balancing of potential benefits and disadvantages of juror questioning. The disfavored practice should be allowed only in "extraordinary or compelling circumstances.

United States v. Ajmal, 67 F.3d 12 (2d Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

Chapter 284: Readback Of Testimony

In general, the rereading of testimony is disfavored because of the emphasis it places on specific testimony.

United States v. Nolan, 700 F.2d 479 (9th Cir. 1983)
United States v. Binder, 769 F.2d 595 (9th Cir. 1985) (videotaped testimony)

When a jury requests the reading of certain testimony, it is error to deny that request without consulting counsel.

United States v. Birges, 723 F.2d 666 (9th Cir. 1984)
United States v. Holmes, 863 F.2d 4 (2d Cir. 1988)

The court should take into consideration the reasonableness of the request and the difficulty of complying with it.

United States v. Almonte, 594 F.2d 261 (1st Cir. 1979)

The court did not abuse its discretion in denying the jury's request to read back a portion of the transcripts, where two defendants might have benefitted and three might have been harmed.

United States v. Delgado, 56 F.3d 1357 (11th Cir. 1995)

The court may have the court reporter read to the jurors portions of the testimony of a witness. Any such request must be disclosed to counsel and their comments solicited before any testimony is read.

Government of Canal Zone v. Scott, 502 F.2d 566 (5th Cir. 1974)
United States v. King, 552 F.2d 833 (9th Cir. 1976)
United States v. Pimental, 645 F.2d 85 (1st Cir. 1981)
United States v. Zarintash, 736 F.2d 66 (3d Cir. 1984)

Notation that counsel was notified that testimony would be read back to jury did not constitute waiver of defendant's right to be present during readback.

A judge's absence from the courtroom during readback of testimony is not prejudicial or in error.

United States v. Grant, 52 F.3d 448 (2d Cir. 1995)

However, a judge's absence and unavailability during readback, which was granted by the judge's law clerk, coupled with the judge's failure to rule on whether a victim's direct examination should have been read back to the jury, violated due process.

Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995)

There are circumstances under which it is not an abuse of discretion to allow a jury to review a transcript during deliberation.

United States v. Lujan, 936 F.2d 406 (9th Cir. 1991)

If the jury is allowed to review a transcript, the court must take adequate precautions to ensure the jury does not unduly emphasize that testimony.

It is within the trial court's discretion to allow tapes of recorded conversations to be replayed at the request of a deliberating jury. Transcripts of the tapes may be used as listening aids.

United States v. Koska, 443 F.2d 1167 (2d Cir. 1971)
United States v. Turner, 528 F.2d 143 (9th Cir. 1975)
United States v. Williams, 548 F.2d 228 (8th Cir. 1977)
United States v. Dorn, 561 F.2d 1252 (7th Cir. 1977), overruled on other grounds by United States v. Read, 658 F.2d 1236 (7th Cir. 1981)
United States v. Zepeda-Santatia, 569 F.2d 1386 (5th Cir. 1978)
United States v. Scaife, 749 F.2d 338 (6th Cir. 1984) (provided tapes have been admitted as exhibits)

The defendant, his or her counsel, and the judge must be present when tapes are replayed.

United States v. Brown, 832 F.2d 128 (9th Cir. 1987)

When the trial court makes the discretionary decision to have a portion of a witness's testimony reread to the jury, the court should state on the record, before the rereading, exactly what portion of the testimony is to be reread.

United States v. Keskey, 863 F.2d 474 (7th Cir. 1988)

The trial court has discretion to permit the replaying of videotaped testimony. Videotaped testimony is unique, however. It serves as the functional equivalent of a live witness, and for that reason may be given undue emphasis by the jury if replayed. When replaying is allowed, the videotape must be played in its entirety, in open court, and with counsel present.

United States v. Sacco, 869 F.2d 499 (9th Cir. 1989)

Exposure of the jury during deliberations to transcripts that include portions of videotaped testimony deemed inadmissible at trial requires holding of a Remmer hearing to allow the defendant to inquire into the jurors’ states of mind.

United States v. Walker, 1 F.3d 423 (6th Cir. 1993)

See Part V(A) 3a [Admissibility: Tape Recordings Of Conversations: Tape Recordings May Be Admitted Into Evidence].

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

25.2 Exhibits

276.1 Deliberations: Miscellaneous Issues

It is within the discretion of the trial court to allow exhibits that have been admitted into evidence to be sent to the jury room.

United States v. Foster, 815 F.2d 1200 (8th Cir. 1987)

The trial court may in its discretion send all or part of the admitted exhibits to the jury room before or after the jurors have begun their deliberations.

United States v. De Hernandez, 745 F.2d 1305 (10th Cir. 1984)

A defendant is entitled to a new trial when extrinsic evidence is introduced into the jury room, unless there is no reasonable possibility that the jury's verdict was influenced by material that improperly came before it.

United States v. Ruggiero, 56 F.3d 647 (9th Cir. 1995)
United States v. Jobe, 101 F.3d 1046 (5th Cir. 1996)

In its discretion the court may permit properly authenticated transcripts of recorded conversations or witnesses’ testimony to be taken to the jury room.

United States v. Koska, 443 F.2d 1167 (2d Cir. 1971)
United States v. Rengifo, 789 F.2d 975 (1st Cir. 1986)
United States v. Ulerio, 859 F.2d 1144 (2d Cir. 1988) (English translations of conversations recorded in Spanish)
United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994)
United States v. Escotto, 121 F.3d 81 (2d Cir. 1997)

The court may permit drugs admitted as evidence in trial to be sent to the jury room.

United States v. de la Cruz-Paulino, 61 F.3d 986 (1st Cir. 1995)

It is error to send a dictionary to the jury room at the request of the jurors without consulting counsel. Questions or disputes as to the meaning of terms are to be settled by the court rather than by jurors' reference to a dictionary.

United States v. Kupau, 781 F.2d 740 (9th Cir. 1986)

Evidence that has been admitted only for illustrative purposes during trial is not to go into the jury room. Illustrative evidence is properly used as a testimonial aid for a witness or as an aid to counsel during final argument. It is not to be referred to by the jurors during deliberations.

United States v. Cox, 633 F.2d 871 (9th Cir. 1980)

If a transcript of a tape recording is to be used during deliberations, it should be admitted into evidence; appropriate instructions regarding the jury's use of a transcript should be given.

United States v. Berry, 64 F.3d 305 (7th Cir. 1995)

Transcripts of tape recordings used to assist the jury when tapes are played during trial may be sent to the jury room for the same purpose, absent any showing that the transcripts are inaccurate or that specific prejudice will result.

United States v. Brown, 872 F.2d 385 (11th Cir. 1989)

Exposure of the jury during deliberations to unredacted transcripts of videotaped testimony requires holding of a Remmer hearing to allow the defendant to inquire into the jurors' states of mind.

United States v. Walker, 1 F.3d 423 (6th Cir. 1993)

Allowing the jury to see a case agent's report containing a summary of his investigation and his opinion that the defendant was guilty was inherently prejudicial.

United States v. Harber, 53 F.3d 236 (9th Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

11.2.5 Prosecution By Grand Jury Indictment: Cautionary Instructions To Trial Jury

It is within the court's discretion to send a copy of the indictment to the jury, but the court should consider whether doing so may prejudice the defendant.

United States v. Wedelstedt, 589 F.2d 339 (8th Cir. 1978)

If a count has been dismissed or a particular count does not pertain to the defendant on trial, the indictment should be retyped to eliminate the count or counts for which the defendant is not being tried.

United States v. Gomez, 529 F.2d 412 (5th Cir. 1976)

If several defendants named in the indictment are not on trial or if parties change during the course of the trial, better practice is not to submit a copy of the indictment to the jury.

United States v. Maselli, 534 F.2d 1197 (6th Cir. 1976)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

Chapter 286: Deadlock

If the court is advised that the jury has become deadlocked, the court should not declare a mistrial until it has assured itself that the jury is hopelessly deadlocked. It is not sufficient that the jurors are currently deadlocked. The court must determine whether there is a probability that the jury can reach a verdict within a reasonable time or whether it is hopelessly deadlocked. It is best to poll the jurors individually as to whether they are hopelessly deadlocked. The questioning should be in open court. The court must not question the jury as to its vote or as to the split of the vote.

United States v. See, 505 F.2d 845 (9th Cir. 1974)

The court should question the foreperson individually and the other jurors either one by one or as a group.

Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978)

Regardless of what other specifics are included in an Allen charge, a district court must incorporate a specific reminder to jurors in both the minority and majority that they reconsider their positions in light of the other side's view. Failure to provide a sufficiently balanced charge is reversible error.

United States v. Burgos, 55 F.3d 933 (4th Cir. 1995)

An Allen charge is helpful, and not coercive, when it only expresses encouragement to jurors to reach a verdict if possible, to avoid the expense and delay of a new trial.

United States v. Melendez, 60 F.3d 41 (2d Cir. 1995)

Supplemental instruction that jurors should forget past conflict was not coercive, did not suggest a verdict was necessary or that jurors should surrender conscientious positions in light of the views of other jurors.

United States v. Knight, 58 F.3d 393 (8th Cir. 1995)

See Part VIII(D)4  [Declaring Mistrial Because Of Deadlocked Jury].

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

287.5 Jury Poll

FRCRP 31(d) provides as follows: "If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged."

Although the rule permits the discharge of the jury, it is preferable to direct the jury to retire for further deliberations, as that might obviate a retrial.

The verdict may not be accepted by the court if a poll of the jurors indicates a lack of unanimity. The court should direct the jury to retire for further deliberations or should dismiss the jury.

United States v. Brooks, 420 F.2d 1350 (D.C. Cir. 1969)
Sincox v. United States, 571 F.2d 876 (5th Cir. 1978)
United States v. Love, 597 F.2d 81 (6th Cir. 1979)
United States v. Morris, 612 F.2d 483 (10th Cir. 1979)
United States v. Chigbo, 38 F.3d 543 (11th Cir. 1994)

A juror's signature on the verdict form cannot substitute for an oral poll of the jury in open court.

United States v. Marinari, 32 F.3d 1209 (7th Cir. 1994)

If, at the polling, the response of a particular juror is equivocal, the verdict may not be received.

The Eleventh Circuit has held that once a single juror dissents from the verdict, it is per se error to continue polling.

United States v. Spitz, 696 F.2d 916 (11th Cir. 1983)
But see United States v. Chigbo, 38 F.3d 343 (11th Cir. 1994)

The court may not inquire as to the reason for a juror's dissent from the announced verdict.

United States v. Nelson, 692 F.2d 83 (9th Cir. 1982)

It is reversible error for the court to inquire of the jurors as to their numerical division at any time prior to verdict. This is true even if the court does not ask how the jury is divided.

Brasfield v. United States, 272 U.S. 448 (1926)
United States v. Noah, 594 F.2d 1303 (9th Cir. 1979)
Government of the Virgin Islands v. Romain, 600 F.2d 435 (3d Cir. 1979)

An unsolicited disclosure of the jury's numerical division is not, however, a ground for mistrial.

United States v. Diggs, 522 F.2d 1310 (D.C. Cir. 1975)
United States v. Warren, 594 F.2d 1046 (5th Cir. 1979)

It is error for the court to set any time limitations on the jury's deliberations or to suggest that the court is going to keep the jury deliberating until a verdict is reached.

United States v. Amaya, 509 F.2d 8 (5th Cir. 1975)

If a verdict is reached after further deliberations, the trial court has discretion to determine whether the initially dissenting member of the jury was coerced by the poll to capitulate to the views of the majority.

United States v. Brooks, 420 F.2d 1350 (D.C. Cir. 1969)
Amos v. United States, 496 F.2d 1269 (8th Cir. 1974)
United States v. Fiorilla, 850 F.2d 172 (3d Cir. 1988)

Even after a verdict is announced in court, jurors remain free to register their dissents until the verdict is accepted by the court.

United States v. Taylor, 507 F.2d 166 (5th Cir. 1975)

United States v. Marinari, 32 F.3d 1209 (7th Cir. 1994)

United States v. Marinari, 32 F.3d 1209 (7th Cir. 1994)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

287.5.7 Jury Poll: Duty Of Court To Interrogate Juror Whose Answer Is Ambiguous Or Ambivalent

287.5.8 Questionable Unanimity After Polling: Instruction Returning Jury To Juryroom

287.5.11 Jury Poll: Sealed Verdict Is Invalidated If Juror Dissents When Verdict Is Returned

If, through inadvertence, an incorrect verdict form is signed, that error may be corrected at once. Each juror must be polled as to the correct verdict.

United States v. Mears, 614 F.2d 1175 (8th Cir. 1980)

If a verdict is not in proper form or is for any reason unclear, the jury must be returned for further deliberations.

United States v. Thomas, 521 F.2d 76 (8th Cir. 1975)
United States v. Rastelli, 870 F.2d 822 (2d Cir. 1989)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

275.2 Partial Verdicts

The court may accept a partial verdict on one or more counts of an indictment.

United States v. Ross, 626 F.2d 77 (9th Cir. 1980)
United States v. Benedict, 95 F.3d 17 (8th Cir. 1996)

If accepted, a partial verdict is not subject to revision by the jury.

United States v. Di Lapi, 651 F.2d 140 (2d Cir. 1981)
United States v. Dakins, 872 F.2d 1061 (D.C. Cir. 1989)

A jury should be neither encouraged to nor discouraged from returning a partial verdict, but the jurors should be aware of their options.

United States v. DiLapi, 651 F.2d 140 (2d Cir. 1981)

In a codefendant case, FRCRP 31(b) permits the jury to return "a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed." 

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

297.6 Inconsistent Verdicts

The verdict of a jury need not be internally consistent. Consistency of the verdict on separate counts is not required.

United States v. Haynes, 554 F.2d 231 (5th Cir. 1977)
United States v. Lichtenstein, 610 F.2d 1272 (5th Cir. 1980)
United States v. Dakins, 872 F.2d 1061 (D.C. Cir. 1989)
United States v. Muthana, 60 F.3d 1217 (7th Cir. 1995)
United States v. Acosta, 67 F.3d 334 (1st Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

288.3 Post-Verdict Communications With Jurors Should Not Be Prohibited Without A Showing Of Good Cause

Federal courts do not look with favor on the interviewing of jurors after verdict.

Smith v. Cupp, 457 F.2d 1098 (9th Cir. 1972)
United States v. Riley, 544 F.2d 237 (5th Cir. 1976)
King v. United States, 576 F.2d 432 (2d Cir. 1978)
United States v. Eldred, 588 F.2d 746 (9th Cir. 1978)
United States v. Kepreos, 759 F.2d 961 (1st Cir. 1985)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

288.3 Post-Verdict Communications With Jurors Should Not Be Prohibited Without A Showing Of Good Cause

It is not an abuse of discretion for a trial court to deny a motion by counsel to interview jurors after verdict.

Parker v. Estelle, 558 F.2d 312 (5th Cir. 1977)
United States v. McNeal, 865 F.2d 1173 ( 10th Cir. 1989)

Post-trial interviews should be permitted only if there are reasonable grounds to believe that a specific, nonspeculative impropriety, has occured that could have prejudiced the defendant.

United States v. Sun Myung Moon, 718 F.2d 1210 (2d Cir. 1983)
United States v. Ianniello, 866 F.2d 540 (2d Cir. 1989)

The court has the power, and sometimes the duty, to order that all posttrial interviews of jurors occur under its supervision.

King v. United States, 576 F.2d 432 (2d Cir. 1978)
United States v. Moten, 582 F.2d 654 (2d Cir. 1978)

The First Circuit has prohibited all post-verdict interviews of jurors by counsel, litigants, or their agents except under the supervision of the district court and then only in such extraordinary situations as are deemed appropriate.

United States v. Kepreos, 759 F.2d 961 (1st Cir. 1985)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

288.3 Post-Verdict Communications With Jurors Should Not Be Prohibited Without A Showing Of Good Cause

Only under the most unusual circumstances is the court justified in directing jurors not to talk to representatives of the news media after verdict.

United States v. Sherman, 581 F.2d 1358 (9th Cir. 1978)

Restrictions of post-trial media interviews with jurors must reflect impending threat of jury harassment rather than generalized misgivings about the wisdom of such interviews.

United States v. Antar, 38 F.3d 1348 (3d Cir. 1994)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

288.2 Juror Statements Regarding Failure To Follow Instructions Should Not Be Excluded Under Domestic Rules Of Evidence

288.4 Defendant Should Be Permitted To Prove Juror Agreement To Disregard An Instruction

FRE 606(b) provides as follows:

[A] juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith ... nor may a juror's affidavit or evidence of any statement by the juror ... be received for these purposes.

Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914 (7th Cir. 1991)

United States v. Sjeklocha, 843 F.2d 485 (11th Cir. 1988)

United States v. Stansfield, 101 F.3d 909 (3d Cir. 1996)

United States v. Hockridge, 573 F.2d 752 (2d Cir. 1978)

Juror testimony is admissible only if it relates to extraneous influences on the deliberations.

United States v. Pimentel, 654 F.2d 538 (9th Cir. 1981)
United States v. Friedland, 660 F.2d 919 (3d Cir. 1981)
United States v. Schwartz, 787 F.2d 257 (7th Cir. 1986)

Extraneous influences include publicity received and discussed in the jury room, consideration of evidence not admitted in court, and contacts between jurors and third parties, including contacts between jurors and the trial judge outside the presence of the defendant and his or her counsel.

United States v. Campbell, 684 F.2d 141 (D.C. Cir. 1982)

The trial court should hold a post-trial hearing only when there is clear, strong, substantial, and incontrovertible evidence that specific, nonspeculative impropriety has occurred which could have prejudiced the trial of the defendant.

United States v. Sun Myung Moon, 718 F.2d 1210 (2d Cir. 1983)
United States v. Ianniello, 866 F.2d 540 (2d Cir. 1989)

The hearing should be conducted so as to minimize the intrusion on the jury’s deliberations, and fact-finding should be limited to a determination of the precise nature of the information proffered and the degree to which that information was actually discussed or considered.

United States v. Calbas, 821 F.2d 887 (2d Cir. 1987)

The practice of getting affidavits from jurors to impeach their verdicts should not be encouraged, as it is inherently intimidating.

United States v. Gutman, 725 F.2d 417 (7th Cir. 1984)