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2.1 Instruction Delivery: Written/Oral/Recorded

    2.1.1 Trend Toward Providing Jury With Written Instructions
    2.1.2 Written Instructions In Lieu Of Oral Instructions As Reversible Error
    2.1.3 Written Instructions As Improper Even If Oral Rendition Is Also Given
    2.1.4 Accounting For Illiterate Jurors
    2.1.5 Impropriety Of Piecemeal Written Instructions
    2.1.6 Whether To Submit A Single Set Of Instructions Or One Set For Each Juror
    2.1.7 Having Jurors Read Along With Written Version Of Instructions During Oral Rendition
    2.1.8 Jurors Should Not Be Advised Of Availability Of Written Instructions Until End Of Court’s Oral Delivery
    2.1.9 Preservation Of Written Instructions For The Record
    2.1.10 Supplemental Instructions Should Not Be Delivered By Written Notes
    2.1.11 Written Instructions Given To Jury Should Not Discourage Inquiry

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PRACTICE NOTE: "There is a growing trend to generate a set of written instructions for the jury to take into the juryroom, a practice generally held to be within the court’s discretion. [Citations.] [¶] However, in some states, written instructions for the jury are mandatory. [Citations.] Courts have on occasion made available to the jury tape recordings of the instructions, usually in response to an inquiry from the jury as to a specific point. [Citation.] [¶] The theory behind providing taped or written instructions is that juror comprehension will be improved and the proceedings will be expedited. However, opponents of the practice point out that there is a potential conflict with the defendant's right to be present. [Citations.]" (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) §131.101[2][a]; see also American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) Standard 15-4.4 ["A written copy or audio version of the instructions should be given to the jury when it retires to deliberate"].)

    In California, the judge must instruct the jury as to the availability of the written instructions and supply those instructions should the jury request them. (Penal Code § 1093(f); People v. Cooley (CA 1993) 14 CA4th 1394, 1397-1400 [18 CR2d 346]; People v. Blakley (CA 1992) 6 CA4th 1019 [8 CR2d 219].) However, People v. Samayoa (CA 1997) 15 C4th 795, 845 [64 CR2d 400] concluded that the submission of written instructions to the jury (although generally beneficial and to be encouraged) is not required by the state or federal constitution.

Annotation, Failure To Comply With Statute, Constitutional Provision, Or Court Rule Providing For Giving Instructions To Jury In Writing As Prejudicial Or Reversible Error, 115 ALR 1332.

Annotation, Construction Of Statutes Or Rules Making Mandatory The Use Of Pattern Or Uniform Approved Jury Instructions, 49 ALR 3d 128.

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].

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    See NCJIC 296.2.2.6 [Written Instructions To The Jury As Reversible Error].

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].

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PRACTICE NOTE: Critics of the practice of giving jurors written instructions express fears that illiterate or semi-literate jurors will be at a disadvantage during deliberations. They also say that giving copies of the instructions to the jury flies in the face of the requirement that jurors consider the instructions as a whole—the procedure virtually invites them to give undue emphasis to one over the others. (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[2][a].) For instance, in U.S. v. Shilleci (5th Cir. 1977) 545 F2d 519, 526, the court said, "While not error in and of itself, the practice [of submitting written instructions to the jury] is conducive to dissection of the charge by the jury and overemphasis of isolated parts rather than consideration of the charge as a whole. . . .[T]he jury was never instructed to consider the charge as an integrated whole and the likelihood of undue concentration on a specific paragraph or sentence was, in all probability, greatly enhanced." (But see U.S. v. Perez (5th Cir. 1981) 648 F2d 219, 222 [none of the circumstances creating a risk of prejudice present in Shilleci were present, and thus practice, although disfavored, does not amount to error].)

    Such an analysis was used in Commonwealth v. Oleynik (PA 1990) 568 A2d 1238, 1241, to hold that the potential prejudice to a defendant from written instructions given to the jury outweighs any benefit such instructions might provide. The inherent dangers were described as follows:

    "Where a jury is permitted to take with them written instructions during their deliberations, a question may arise as to the appropriate application of the written instruction when resolving an issue in the cause. In such a case, it is highly probable the jury would resort to its interpretation of the written instructions in reaching its verdict. Where the jury is required to rely upon the oral instructions, it is more likely that the jury would seek further instructions from the judge to resolve the question. When an issue is resolved by further instructions from the court, that procedure insures that misconceptions are not permitted to infect the deliberative process. On the other hand, when a jury is left to its own devices to interpret a written instruction, the possibility of a misconception is significantly enhanced. Moreover, the submission of written instructions would tend to encourage the jury to ignore the court's general instruction and focus upon the written instructions supplied to them. This undue emphasis on portions of the charge has the potential of undermining the integrity of the deliberative process." (Oleynik, 568 A2d at 1241); see also Commonwealth v. Karaffa (PA 1998) 709 A2d 887, 890 ["[T]he use of written jury instructions is intrinsically prejudicial...it is reversible error for a trial court to send written instructions to a jury during its deliberations"]; Commonwealth v. Byrd (PA 1991) 598 A2d 1011, 1014.)

RESEARCH NOTES:

Annotation, Propriety and Prejudicial Effect of Sending Written Instructions With Retiring Jury in Criminal Case, 91 ALR3d 382.

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].

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PRACTICE NOTE: Because illiterate individuals may be on any given jury, the judge should either voir dire as to the literacy of the jurors or assure that any matters dependent upon reading or writing (e.g., written instructions, written judge-jury communication) not inadvertently exclude jurors who cannot read or write. (See generally BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) §131.101[2][a].)

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].

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PRACTICE NOTE: Piecemeal transmission of written instructions is improper because it may overly emphasize those submitted to the jury in writing. Such a practice has been condemned as improper. (See State v. Pokini (HI 1974) 526 P2d 94, 107 ["transmitting piecemeal some instructions to the exclusion of others was unprecedented and highly prejudicial"]; see also State v. Estrada (HI 1987) 738 P2d 812, 828, [condemning "piecemeal" transmission of selected instructions].)

    If written instructions are furnished in response to juror inquiry after deliberations have begun, an objection should be lodged as to the sending of an isolated instruction that leaves a crucial matter uncovered. For instance, Payne v. State (FL 1981) 395 So2d 284, 284, held that it was reversible error to send the jury the standard instructions on premeditation over defense objection without sending the entire set of instructions. (See also People v. Brooks (NY 1987) 519 NE2d 293, 294 [providing jury with incomplete or abbreviated written instructions is improper].)

Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 3.13, p. 3-12.)

BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[2][a].

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].

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PRACTICE NOTE: If only a single set of instructions is given to the jury this may be construed as an invitation to read the instructions aloud in the juryroom. Such a reading may not be complete or accurate. On the other hand, if each juror has a set of instructions then the jurors will have complete access to the instructions but there will be no assurance that every juror individually reads and understands the instructions. (See People of Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15.)

    See also NCJIC 2.5.4 [Variance Between Reporter's Transcript And Written Instructions].

See generally UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide IV(L) (Oregon State Bar, 1998 ) [recognizing that courts do it each way].

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].

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RATIONALE: If the jurors are able to read along with the judge's oral instructions they may better comprehend the instructions.

POINTS AND AUTHORITIES: It has been suggested that the unavailability of written instructions to the jury "greatly lowers the probability that they will remember and use them...." (Sales & Alfini, Making Jury Instructions Understandable (1982) p. 18.)

    Moreover, comprehension is increased if the jurors are permitted to follow the written instructions during the oral rendition and if they are encouraged to read the instructions several times on their own during deliberations. "...[W]e have found that the best memory and comprehension is gotten when jurors are allowed to follow a written version of the judge’s instructions while he/she is reading them and to make check marks next to the sections that are not readily understood upon the first reading. After this initial presentation, and during the deliberations, jurors should be encouraged to read the instructions over several times on their own and to make especially sure that they understand the troublesome portions." (Id. at p. 20.)

    But see NCJIC 2.1.8 [Jurors Should Not Be Advised Of Availability Of Written Instructions Until End Of Court’s Oral Delivery].

FEDERALIZATION: To federalize this request, click here [Constitutional Macro 7.2].

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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PRACTICE NOTE: If at the outset of the instructions the jury is told that written instructions will be available, there is a danger that the jury will not listen as closely to the oral instructions with the knowledge that they will have the written instructions to refer to later. This danger is particularly significant since the jurors' reference to the written instructions without hearing the oral instructions may be inherently prejudicial. (See NCJIC 2.1.2 [Written Instructions In Lieu Of Oral Instructions As Reversible Error].) Accordingly, reference to the availability of the written instructions should be made at the end rather than the beginning of the instructions. (See generally, CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.76, comment [Furnishing The Jury With A Copy Of Instructions] ¶ 4, pg. 167 (Bar Association of the District of Columbia, 4th ed. 1993).)

    But see NCJIC 2.1.7 [Having Jurors Read Along With Written Version Of Instructions During Oral Rendition].

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].

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PRACTICE NOTE: An exact copy of the written instructions which were provided to the jury should be preserved with the case file for purposes of the appeal. (See e.g., Calif. Rules of Court, Rule 33(a)(1)(h) and (i) [normal record includes all written instructions given and all written communication between judge and jury]; see also e.g., CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA Inst. 2.76, comment [Furnishing The Jury With A Copy Of Instructions] p. 167 (Bar Association of the District of Columbia, 4th ed. 1993) ["the court should preserve, with the case file, a copy of all instructions furnished to the jury until the time for filing a notice of appeal has elapsed"].) It does not suffice for the court reporter to transcribe the oral instructions for the record. (People v. Williams (CA 1994) 30 CA4th 1758, 1764-65 [37 CR2d 128].)

    See NCJIC 285.1.1 [Supplemental Instruction In Response To Jury Inquiry: Instruction Should Be Given Orally Rather Than By Written Response To Jury Inquiry].

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 1 - CHAPTER 2

PRACTICE NOTE: The reasoning in NCJIC 2.1.3 [Written Instructions As Improper Even If Oral Rendition Is Also Given] and NCJIC 2.1.5 [Impropriety Of Piecemeal Written Instructions] suggests that any instructional response to the jury's inquiries during deliberation must not merely be submitted in writing. (See also Rogers v. U.S. (1975) 422 US 35, 39 [95 SCt 2091; 45 LEd2d 1].)

    However, actual practice is often to the contrary. (See e.g., 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.05 [Communication With The Court] comment (2002) [1st Circuit permits a written response, so long as the lawyers are shown the jury's note and are given the opportunity to comment on the judge’s proposed response]; WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.67 [Questions By Jury Addressed To Court] (West, 2nd ed. 1994) [bailiff delivers the written question to the judge who then prepares a written response]; see U.S. v. Parent (1st Cir. 1992) 954 F2d 23, 27 [written supplemental instructions not "per se error" but judge must be extremely careful to avoid the possibility of prejudicial emphasis].)

    In sum, in light of the potential problems associated with written instruction sent to the jury without oral rendition, this practice should be challenged. Moreover, even if a written response is provided, an open court oral rendition should also be made to assure the supplemental instructions are fully and fairly applied by the jury. (See NCJIC 285.1.1 [Supplemental Instruction In Response To Jury Inquiry: Instruction Should Be Given Orally Rather Than By Written Response To Jury Inquiry].)

    In the event that supplemental written instructions are given to the jury, a separate admonishment should be given to assure that the supplemental instructions are accurately disseminated to all jurors (e.g., whether they are to be read by the foreperson and/or distributed in writing for each juror.) (Cf. State v. Norris (KS 1985) 699 P2d 585, 588-89 [prejudice from submission of written instructions only is exacerbated by failure to instruct that instructions must be read before commencing deliberations].) Additionally, the jury should be instructed not to give undue weight to the supplemental instructions and to treat them as part of the total charge. (See e.g., U.S. v. Sutherland (5th Cir. 1970) 428 F2d 1152, 1157-58; U.S. v. Piatt (8th Cir. 1982) 679 F2d 1228, 1231; U.S. v. Parr (11th Cir. 1983) 716 F2d 796, 809; Davis v. U.S. (DC App. 1986) 510 A2d 1051, 1053.)

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].

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RATIONALE: When the jury is given the written instructions it may assume that this precludes the jury from asking for further clarification of the instructions.

POINTS AND AUTHORITIES: The jury should have the right to ask questions about the jury instructions even if it has received a written copy of them. (See generally NCJIC 285.3.2 [Duty To Eliminate Juror Confusion]; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.76 [Furnishing The Jury With A Copy Of The Instructions] (Bar Association of the District of Columbia, 4th ed. 1993).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1].

See also A Manual On Jury Trial Procedures [4.1.1 Submission Of Instructions: Rules Governing Jury Instructions].

See also A Manual On Jury Trial Procedures [4.1.2 Manner Of Submission of Instructions Practical Suggestions].

See also A Manual On Jury Trial Procedures [4.3.3 C. Preliminary Charge And Final Instructions: Providing Copies Of Instructions To Jury].