THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 1 - CHAPTER 2
Go to Volume 1 Table of Contents - Go to Chapter 2 Table of Contents

2.7 Presence Of Counsel

    2.7.1 Presence Of Counsel During Instruction Proceedings
    2.7.2 Presence Of Counsel During Supplemental Instructions

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 1 - CHAPTER 2

PRACTICE NOTE: Instruction of the jury in the absence of defendant and his counsel violates the federal constitutional rights under the 6th and 14th Amendments to assistance of counsel and due process. (See People v. Hawthorne (92) 4 C4th 43, 67-71 [14 CR2d 133]; see also State v. DeLuzio (NJ 1993) 643 A2d 609, 620; Sweet et al. v. Clare-Mar Camp, Inc. (OH 1987) 526 NE2d 74, 77-78.)

    See also NCJIC 2.7.2 [Presence Of Counsel During Supplemental Instructions].

    See also NCJIC 25.4.12 [Presence Of Counsel At Jury View].

    See also NCJIC 284.1.5 [Readback: Should Be Conducted In Open Court And In The Presence Of Counsel And Defendant].

    See also NCJIC 284.1.6 [Can Presence Of Defendant And Counsel At Readback Be Waived By Capital Defendant?].

    See also NCJIC 285.1.3 [Counsel's Presence During Jury Inquiry: Strategic Considerations].

    See also NCJIC 285.1.4 [Supplemental Instructions: Presence Of Counsel].

    See also NCJIC 287.5.4 [Jury Poll: Presence Of Counsel And Defendant].

BRIEFING AVAILABLE: Click here. [Brief Bank # B-571].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 1 - CHAPTER 2

PRACTICE NOTE: Supplemental instruction of the jury after deliberations have begun is a "critical stage of the proceedings" at which the defendant is entitled to the right to counsel and it is error to reinstruct the jury without giving notice to the defendant's attorney. (People v. Rubalcava (CA 1988) 200 CA3d 295, 299-300 [246 CR 75]; see also U.S. v. Rosales-Rodriguez (9th Cir. 2002) 289 F3d 1106 [delivery of supplemental instruction to a jury is a "critical stage" of the prosecution, at which the defendant’s right to be present applies]; People v. Dagnino (CA 1978) 80 CA3d 981, 986-88 [146 CR 129]; Anderson v. State (DE 1997) 695 A2d 1135, 1139; BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[8].)

    This rule is based on the precept that a defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant's case. (People v. Jennings (CA 1991) 53 C3d 334, 385 [279 CR 780]; Edlin v. State (MS 1988) 523 So2d 42.)

    Failure to notify counsel regarding supplemental instructions may be considered prejudicial if counsel could have taken some action on the defendant's behalf to amplify, clarify or modify the supplemental instruction. (See e.g., People v. Dagnino (78) 80 CA3d 981, 988 [146 CR 129]; see also Rice v. U.S. (8th Cir. 1966) 356 F2d 709, 716-17 [presumption of prejudice must be rebutted]; Yarsunas v. Boros (1966) 223 A2d 696, 697 [instruction in absence of defense counsel requires new trial "regardless of prejudice"].)

    See also NCJIC 2.6.3 [Presence Of Defendant: Supplemental Instructions].