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2.5 Record Of Instruction Proceedings

    2.5.1 Instruction Conference Should Be On The Record
    2.5.2 Oral Rendition Of Instructions Should Be On The Record
    2.5.3 Proceedings As To Supplemental Instruction Should Be On The Record
    2.5.4 Variance Between Reporter's Transcript And Written Instructions
    2.5.5 Error In Reporter's Transcript And No Written Instructions Available
    2.5.6 Sufficiency Of Record On Appeal To Present Instructional Error To Reviewing Court
    2.5.7 Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter
    2.5.8 Waiver Of Reporter
    2.5.9 Reporting By Electronic Recorder Rather Than Court Reporter
    2.5.10 Record Of Bench Conference
    2.5.11 Preservation Of Written Instructions Given To The Jury
    2.5.12 Insufficiency Of Transcript On Appeal As Reversible Error
    2.5.13 Record On Appeal: Constitutional Right

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PRACTICE NOTE: Unreported in chambers discussions are not normally part of the record on appeal. (See e.g., People v. Gzikowski (CA 1982) 32 C3d 580, 584, fn 2 [186 CR 339].) "A chambers discussion without a court reporter will not preserve an error for appeal. [Citation.]" (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide VI(G) (Oregon State Bar, 1998); see also U.S. v. Murphy (7th Cir. 1985) 768 F2d 1518, 1536 [trial judge may elect to have instruction conference in chambers without court reporter, if local rules so permit; at conclusion of conference, judge must make formal rulings on record and offer counsel an opportunity to make their objections known.].)

    Hence, instruction conferences should be reported or thoroughly memorialized on the record afterward. (See Dixon v. Oklahoma (10th Cir. 1990) 898 F2d 1443, 1447; Carson v. Nevada (NV 1981) 635 P2d 276, 278; Margolin, Preservation of the Record on Appeal, Vol. 21, No. 1, California Attorneys For Criminal Justice FORUM, pp. 68-69 [necessity of having a reporter present during any in-chambers discussion of jury instructions].)

    For example, in People v. Morris (CA 1991) 53 C3d 152, 210, fn 11 [279 CR 720], the court noted its "disapproval of unreported conferences on matters of substantial controversy in capital cases," and directed that proceedings in capital cases should be conducted on the record "to remove any conceivable doubt as to what took place and to preclude unnecessary disputes and delays in settling the record for further proceedings." (see also People v. Hawthorne (CA 1992) 4 C4th 43, 63 [14 CR2d 133] [the court "cannot urge too strongly that trial judges assiduously preserve a detailed account of all proceedings regardless of their perceived significance, particularly in capital cases, to minimize the need to reconstruct events"].)

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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PRACTICE NOTE: Even if the parties can stipulate that the oral rendition of instructions not be reported (see People v. Garrison (CA 1989) 47 C3d 746, 780-781 [254 CR 257]) such a stipulation is unlikely to be of benefit to the defendant given the reality that the judge may inadvertently misread the instructions. (See e.g., People v. Diaz (CA 1989) 208 CA3d at 345-47, Brauer dissent.)

    In U.S. v. Steward (9th Cir. 1994) 16 F3d 317, 320, the court reporter did not make a contemporaneous record of the jury instructions, but instead placed a copy of the trial judge's written instructions in the record and noted in the record that "the instructions were read to the jury and spread upon the record as follows...." The 9th Circuit, while apparently assuming that this was error, required a showing of prejudice. Because defense counsel had the opportunity to object if the judge materially varied from the written text when reading the instructions, yet did not do so, no prejudice was shown.

    This case illustrates the importance of both assuring that the instructions are contemporaneously reported and following the oral rendition of the instructions with a copy of the written instructions to assure that no prejudicial variation -- whether intentional or unintentional -- occurs. "Tedious as it may be, it pays to actually listen to the instructions as they are given—the judge may misspeak, thereby misstating the law or inadvertently omitting portions of an instruction." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[7].)

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

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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    See NCJIC 285.1.7 [Record Of Supplemental Instruction Proceedings And Instructions Given To The Jury].

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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PRACTICE NOTE: When there is a variance between the Reporter's Transcript and the written instructions, a case by case analysis has been used to determine which part of the record is more credible. (People v. Smith (CA 1983) 33 C3d 596, 599 [189 CR 862]; see also People v. Diaz (CA 1989) 208 CA3d 338, 347 [255 CR 91], dissenting opinion of Brauer, J; People v. Marshall (CA 1990) 50 C3d 907, 931, fn 3 [269 CR 269] [Supreme Court quoted the instructions as they appear on the written forms and recorded in the Clerk's Transcript and not the orally delivered instructions recorded in the Reporter's Transcript, where there is no substantial variation between the two].)

    In People v. McLain (CA 1988) 46 C3d 97, 111, fn 2 [249 CR 630] the court orally instructed the jury and then sent written instructions into the juryroom for use during deliberations. With regard to insignificant discrepancies between the oral and written instructions, the Supreme Court presumed "that the jurors were guided by the written version..." (Ibid.; see also People v. Majors (CA 1998) 18 C4th 385, 410 [75 CR2d 684] [error in oral instruction was harmless in light of correct written instruction given to the jury].)

    However, it is only through oral instruction that it "can be assured that each member of the jury has actually received all of the instructions." (People of the Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15; see also State v. Castoreno (KS 1994) 874 P2d 1173, 1180-81; State v. Norris (KS 1985) 699 P2d 585, 586; see also NCJIC 2.1.2 [Written Instructions In Lieu Of Oral Instructions As Reversible Error]; see also NCJIC 2.1.3 [Written Instructions As Improper Even If Oral Rendition Is Also Given]; NCJIC 2.1.4 [Accounting For Illiterate Jurors].) This is so because there is no assurance that all or any of the jurors actually read the written instructions. (Marquez, 963 F2d at 1314-15.) Accordingly, if there is a substantive difference between the oral and written instructions, the resolution should logically be made in favor of the oral rendition.

    When the court fails to orally instruct the jury upon an instruction which is included in the written instructions submitted to the jury during deliberations, it is not normally possible to determine if the jurors actually read their written copy and, therefore, the reviewing court should assume they did not. (People v. Murillo (CA 1996) 47 CA4th 1104, 1107 [55 CR2d 21].)

    The parties may stipulate that the oral rendition of instructions not be reported. (People v. Garrison (CA 1989) 47 C3d 746, 780-781 [254 CR 257].) However, such a stipulation is unlikely to be of benefit to the defendant given the reality that the judge may inadvertently misread the instructions. (E.g., People v. Diaz, 208 CA3d at 345-47, Brauer dissent.)

PRACTICE NOTE: "Tedious as it may be, it pays to actually listen to the instructions as they are given—the judge may misspeak, thereby misstating the law or inadvertently omitting portions of an instruction." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[7].)

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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PRACTICE NOTE: If there were no written instructions available, any alleged error in the oral record (Reporter's Transcript) may have to be remedied by "statement of the evidence" or "settled statement" if such a procedure is available. (See e.g., Federal Rules of Appellate Procedure (FRAP) 10(c); Calif. Rules of Court 7 and 36; see also People v. Coley (CA 1997) 52 CA4th 964, 972 [60 CR2d 870] [defendant has right and obligation to attempt to settle record to provide adequate record of error and prejudice]; Rasmussen v. Yentes (IA 1994) 522 NW2d 844, 845 [Iowa Rule of App. Proc. 10(c)]; Wood v. Wood (WY 1994) 865 P2d 616, 617 [Wyoming Rules of App. Proc. 3.03].)

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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PRACTICE NOTE: Among the items necessary to present an instruction issue on appeal are the following:

    (1)    Requested instructions; see NCJIC 2.1.9 [Preservation Of Written Instructions For The Record] see also NCJIC  4.3.3.4 [Duty To Make Record Of Instruction Discussions];

    (2)    Objections to instructions given; see NCJIC 2.5.1 [Instruction Conference Should Be On The Record];

    (3)    The trial judge’s ruling on the instructions;

    (4)    Complete instruction given by the trial judge including both the written form and the transcript of 
            the oral rendition;

    (5)    All parts of trial transcript and all exhibits necessary to show the error;

    (6)    On the record description of matters which will not be recorded by the reporter. (See NCJIC 2.5.7 [Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter].)

    See also NCJIC 1.2.9 [Instruction Preparation Helps To Preserve Issues For Appeal].

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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PRACTICE NOTE: Objections can cover both substantive matters, e.g., that the instruction represented a misstatement of the law or improperly shifted the burden of proof, and subjective ones, e.g., that the order of instructions or the judge’s intonation gave undue emphasis to certain instructions or conveyed the judge’s personal views. (See, e.g., Butler v. U.S. (CA DC 1951) 188 F2d 24, 25; People v. DeMartine (NY 1923) 199 NYS 426, 432 [defendant denied fair trial by judge’s charge to jury in which he vouched for the reliability and good faith of the prosecutor and certified that the testimony of the witnesses for the People was worthy of credence].)

    Counsel should always be alert to situations where a matter which may be important to an issue on appeal will not appear in the reporter’s transcript. For example, matters such as an outburst by non-participant in courtroom, reactions to evidence, demeanor of defendant, indicia of coercion as to deadlock instruction, etc., will not normally be apparent from simply reading from the written record. (See generally Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) p. 8-3; see also 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].) Therefore, it may be necessary to specify such matters on the record.

    This also holds true if the judge's intonation gives undue emphasis to certain instructions or conveys the judge's personal views. (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[7].) "Even in jurisdictions in which the judge is permitted to comment on the evidence, there may be limits to the scope and tenor of those comments." (Ibid.)

    If the intonations and gestures of a trial judge are erroneously detrimental to a defendant in a criminal case, it is the duty of counsel to record fully and accurately, at the time and on the record, although not in the hearing of the jury, what has transpired. (See Billeci v. United States (CA DC 1950) 184 F2d 394, 402.) "In such a situation it is as much [counsel's] duty to make the record as it is his duty to record his objections to the charge, as the rules require, before the jury leaves the room. If the representations then made by counsel are not accurate, the court may say so. But if there is a serious question as to whether the jury may have derived some unintended meaning or have been likely to infer erroneously from the gestures and intonations of the judge, it should emphatically instruct them so as to remove any possible erroneous impression from their minds." (Ibid.)

    See NCJIC 16.14.3.7 [Jury Not To Consider Gestures By The Judge].

    See NCJIC 24.3.1.3 [Reaction To The Evidence By The Judge, Attorneys, Parties, Or Court Personnel Must Not Be Considered].

RESEARCH NOTES:

See also Gestures, Facial Expressions, or Other Nonverbal Communication of Trial Judge in Criminal Case as Ground for Relief, 45 ALR5th 531.

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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PRACTICE NOTE: While the defendant in a felony trial has a statutory right to a court reporter (see California Court Reporter's Assn. v. Judicial Council (CA 1995) 39 CA4th 15, 18 [46 CR2d 44]), this right may be waived if a reporter is not requested. (See People v. Turner (CA 1998) 67 CA4th 1258 [79 CR2d 740].)

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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    2.5.9    Reporting By Electronic Recorder Rather Than Court Reporter

PRACTICE NOTE: See People v. Turner (CA 1998) 67 CA4th 1258, 1266 [79 CR2d 740] [use of electronic reporting rather than certified court reporter does not violate defendant's due process rights].

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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    See generally, NCJIC 2.5 [Record Of Instruction Proceedings].

Annotation, Failure or Refusal of State Judge to Have Record Made of Bench Conference With Counsel in Criminal Proceeding, 31 ALR 5th 704.

See generally, Manual On Recurring Problems In Criminal Trials [5a. Bench Conferences: General Principles].

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 8th Circuit Model Jury Instructions - Criminal 2.11.

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    See NCJIC 2.1.9 [Preservation Of Written Instructions For The Record].

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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PRACTICE NOTE: Where the transcript of the proceedings below is insufficient the insufficiency may require reversal even without a showing of prejudice from the omissions in the transcript if the defendant is represented by new counsel on appeal. (See U.S. v. Huggins (4th Cir. 1999) 191 F3d 532; 536-38 see also In re Steven B. (CA 1979) 25 C3d 1, 6 [157 CR 510] [stenographic notes for half of juvenile jurisdictional hearing destroyed]; People v. Apalatequi (CA 1978) 82 CA3d 970, 973 [147 CR 473] [reporter's notes of arguments of counsel lost]; but see split in authority discussed in Huggins.)

See generally, A Manual On Jury Trial Procedures [4.2.1 A. Record On Instructions: Criminal Cases].

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    2.5.13    Record On Appeal: Constitutional Right