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25.2 Exhibits

    25.2.1 Cautionary Instruction: Exhibits
    25.2.2 Cautionary Procedures and Instructions Regarding Exhibits Marked But Not Admitted Into Evidence
    25.2.3 Jury Not to Discuss Exhibits Prior to Deliberation
    25.2.4 Jury Should Not Give Undue Weight To Reproduced Exhibits, Written Statements Or Transcripts Admitted As Exhibits
    25.2.5 Potential Prejudice When Written Statement Offered As Exhibit Favors One Side
    25.2.6 Consideration Of Whether Exhibits Are The Same Objects And In The Same Condition As When Originally Seized
    25.2.7 Jury Not To Speculate About "Masked-Off" Portions Of Photos
    25.2.8 Availability Of Exhibits During Deliberations
    25.2.9 Avoiding Undue Influence By Waiting To Give Jurors Exhibits Until They Request Them
    25.2.10 Exhibits Admitted For Limited Purpose -- Repeating Limiting Instruction When Exhibits Given To Jury
    25.2.11 Jury Request For Evidence Not Admitted At Trial
    25.2.12 Jurors Request For Exhibits Which, For Practical Reasons, Cannot Be Sent Into The Juryroom
    25.2.13 Submission To Jury Of Exhibits Not Admitted As Reversible Error
    25.2.14 Prosecution Misconduct: Premature Display Of Physical Evidence

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RATIONALE: Because exhibits are tangible, there may be a tendency for the jury to give the exhibits greater weight than the oral testimony, especially during deliberations. Therefore, a cautionary instruction may be appropriate.

POINTS AND AUTHORITIES: During deliberations jurors may ask to inspect exhibits that have been offered into evidence. Exhibits, as opposed to the oral testimony, are tangible items and could have an undue impact upon the jurors, especially in the juryroom during deliberations. (See e.g., NCJIC 25.2.4 [Jury Should Not Give Undue Weight To Reproduced Exhibits, Written Statements Or Transcripts Admitted As Exhibits]; see also NCJIC 285.2.3 [Admonition That Supplemental Instructions Have No Greater Weight Than Original Instructions]; see also NCJIC 276.4 [Replaying Recordings During Deliberations].)

    Therefore, when exhibits are offered into evidence an instruction informing jurors of their duty not to give them more weight than any other evidence is may be appropriate. (See e.g., O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 20.04 [Exhibits During Deliberations] (West, 5th ed. 2000) ["When exhibits are sent to the juryroom during deliberations, specific limiting instructions may be required"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.7; 7.1; 7.3].

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

    Certain exhibits have been introduced in evidence. Some of them you have already seen and examined. They are part of the evidence [and will be taken by you to the juryroom where you will have an opportunity to see and examine them to your entire satisfaction] [but will not go into the juryroom unless you so request]. Do not give them any greater weight and consideration than they are entitled to in view of all the testimony and all the other evidence in the case.

    The evidence which you are to consider will consist of both oral testimony and exhibits. In deciding how much weight, if any, to give an exhibit, you should consider its contents and see how it relates to the other evidence in the case. The fact that an exhibit may be given to you for examination does not mean that it is entitled to more weight than oral testimony.

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RATIONALE: The jury may be aware of and/or have observed exhibits which were marked for identification but not admitted into evidence. Because there may be a natural tendency for the jury to speculate about and/or consider such exhibits, a cautionary instruction may be appropriate.

POINTS AND AUTHORITIES: It is established that the jury must only consider evidence which has been formally admitted. (See NCJIC 300.31.1 [Jury Consideration Of Extraneous Evidence].) Until exhibits are admitted into evidence they are extraneous evidence which the jury should not be permitted to view or consider. (See e.g., U.S. v. Green (4th Cir. 1987) 834 F2d 86 [documents which had not been admitted into evidence inadvertently sent to the juryroom during deliberations]; see also U.S. v. Berry (7th Cir. 1996) 92 F3d 597, 600 [transcript of tape recording sent into deliberations]; U.S. v. Noushfar (9th Cir. 1996) 78 F3d 1442, 1444-45 [jury given tapes not admitted into evidence].)  Accordingly, it may be appropriate to instruct the jury that such exhibits are not evidence and must not be viewed or considered.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

CAVEAT: If the court deems it advisable and can do so without giving undue emphasis, it can enumerate which exhibits were received and which were not. However, this procedure could lead to improper comment on the evidence.

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

    You may only consider exhibits actually admitted into evidence.  Exhibits which were marked, but not admitted, are not evidence and must not be considered for any purpose.

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RATIONALE: There may be a natural tendency for the jury to discuss exhibits which they are shown during trial.

POINTS AND AUTHORITIES: See NCJIC 16.2.1 [No Premature Formation Of Opinion].

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.6].

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RATIONALE: When certain exhibits are reproduced for consideration during deliberations, there is a danger that the jury will give those exhibits undue emphasis or weight.

POINTS AND AUTHORITIES: In order for a defendant to receive a fair trial as required by the Constitution, it is important that the jury give careful consideration to all of the evidence and not be overly persuaded by the documentary or tangible evidence. When exhibits are reproduced for consideration during deliberation, the possibility exists that jurors may give undue weight to the exhibits simply on the basis of their having been copied and distributed. Therefore, a cautionary instruction informing the jury not give undue consideration to such exhibits may be required. (See e.g., State v. Wood (CT 1988) 545 A2d 1026, 1030; see also State v. Bunkley (CT 1987) 522 A2d 795, 811; State v. Avila (CT 1974) 353 A2d 776, 780.)

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

See also A Manual On Jury Trial Procedures [5.1G. Jury Questions During Deliberation: Transcript Constituting Exhibit At Trial].

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RATIONALE: A cautionary instruction may be required before permitting the jury to take written exhibits into the juryroom because the written statement may be given more emphasis than the oral testimony.

POINTS AND AUTHORITIES: "Where...the testimony bearing on one side of a controversy is in the form of a deposition or other written statement, and the testimony on the other [is based] entirely on parol evidence given in the court, it is obvious that to permit a jury to take the written portion of the testimony to the juryroom, compelling them to rely upon their memories for the testimony on the other side, gives one side of the controversy an undue advantage, and it would seem plain that such exhibits should not be permitted to be taken to the juryroom." (Payne v. State (WI 1929) 227 NW 258, 263; see also State v. Freetime (LA 1974) 303 So2d 487, 488 [sending of defendant’s written confession into the juryroom risked undue prejudice]; People v. Carr (IL 1977) 368 NE2d 128, 131-32 [witness testimony given to the jury without instruction prejudiced defendant by reemphasizing testimony and giving the jurors an opportunity to hear the states witness twice]; see also Ascherman v. State (IN 1991) 580 NE2d 294 [police statements made by witness]; Thomas v. State (IN 1972) 289 NE2d 508 [allowing jury to take written statements of state's witness into juryroom was abuse of discretion]; State v. Gracia (LA 1988) 527 So2d 488 [conviction was reversed for allowing the viewing of the contents of defendant’s prior statements during deliberation]; State v. Hailes (LA 1986) 501 So2d 788 [danger of prejudice present when jury reviewed contents of an unsigned transcript of a taped oral statement]; Commonwealth v. Terry (PA 1983) 462 A2d 676, 679 [written version of defendant’s confession in juryroom was prejudicial to defendant].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 7.1].

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

See 9th Circuit Model Jury Instructions - Criminal 2.6.

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RATIONALE: When an issue is raised as to the authenticity or integrity of an exhibit (e.g., a chain of custody issue is raised), the jury must understand that it is not bound to consider the exhibit even though it is sent into the juryroom.

POINTS AND AUTHORITIES: In cases where an issue has been raised as to the identity or condition of the exhibits, an instruction may be appropriate to make it clear to the jury that they are not bound to accept the exhibit as presented to them in court. (See e.g., NCJIC 25.2.4 [Jury Should Not Give Undue Weight To Reproduced Exhibits, Written Statements Or Transcripts Admitted As Exhibits]; NCJIC 89.5.12 [Drunk Driving: Chain Of Custody Challenge To Blood Alcohol Test]; see also NCJIC 96.3.3.4 [Possession Of Drugs Or Alcohol In Jail Or Prison/Bringing Drugs or Alcohol Into Jail Or Prison: Chain of Custody As Defense Theory].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

SAMPLE INSTRUCTION # 1:

    In deciding what weight, if any, to give an exhibit, consider whether the exhibit is the same object and in the same condition as when originally [seized] [obtained] by the police.

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    25.2.7    Jury Not To Speculate About "Masked-Off" Portions Of Photos

RATIONALE: Without a cautionary instruction the jurors may improperly infer that the defendant had previously been arrested from the fact that portions of a photograph were "masked-off."

POINTS AND AUTHORITIES: The blocking or masking out of portions of photographs may lead to juror speculation resulting in prejudice to defendant. Therefore, when masked photographs are shown to the jury, an instruction informing them not to speculate about the kind of information that might be concealed may be appropriate. (See e.g., Straughn v. State (MD 1983) 465 A2d 1166, 1170.)

    See also NCJIC 25.15 [Evidence That Suggests Defendant Was Previously Arrested Or Convicted].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 5.1; 7.3].

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

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RATIONALE: Without instruction the jury may not understand its right to examine the exhibits in the juryroom.

POINTS AND AUTHORITIES: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 57 [Available Of Exhibits During Deliberation] instructions and commentary (1988).

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

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

    During the trial several items were received into evidence as exhibits. These exhibits will be sent into the juryroom with you when you begin to deliberate. Examine the exhibits if you think it would help you in your deliberations.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 57 [Available Of Exhibits During Deliberation], Alternative A (1988).]

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    25.2.9    Avoiding Undue Influence By Waiting To Give Jurors Exhibits Until They Request Them

RATIONALE: To avoid undue influence from the exhibits it may be appropriate to not send the exhibits into the juryroom until they are requested.

POINTS AND AUTHORITIES: O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 20.04 [Exhibits During Deliberation] (West, 5th ed. 2000).

    See also  NCJIC 276.3.1 [Materials Into Juryroom: Miscellaneous Issues].

    See also  NCJIC 284.2.2 [Readback Of Testimony: Necessity Of Cautionary Instruction To Avoid Undue Emphasis].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.7].

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

SAMPLE INSTRUCTION:

    You will not have the exhibits admitted into evidence at the start of your deliberations. However, any juror may ask to see any exhibit at any time. The juror or jurors who wish to see an individual exhibit or exhibits may so request by giving a note to the bailiff.

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    25.2.10    Exhibits Admitted For Limited Purpose -- Repeating Limiting Instruction When Exhibits Given To Jury

    See  NCJIC 26.1.4 [Exhibits Admitted For Limited Purpose -- Repeating Limiting Instruction When Exhibits Given To Jury].

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

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    See  NCJIC 276.3.5 [Jurors Request For Exhibits Which, For Practical Reasons, Cannot Be Sent Into The Juryroom].

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    See NCJIC 276.3.6 [Jury's Request For Visual Aid Chart, Etc. Used During Argument Or Testimony But Not Admitted Into Evidence].

    See also NCJIC 276.3.4 [Jury's Request For Exhibits Or Materials Not Admitted Into Evidence].

    See also NCJIC 276.3.5 [Jurors Request For Exhibits Which, For Practical Reasons, Cannot Be Sent Into The Juryroom].

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

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APPELLATE PRACTICE NOTE: Inadvertent submission to the jury of evidence not admitted at trial is serious error which may require reversal. (See e.g., U.S. v. Green (4th Cir. 1987) 834 F2d 86 [documents which had not been admitted into evidence inadvertently sent to the juryroom during deliberations]; see also U.S. v. Berry (7th Cir. 1996) 92 F3d 597, 600 [transcript of tape recording sent into deliberations]; U.S. v. Noushfar (9th Cir. 1996) 78 F3d 1442, 1444-45 [jury given tapes not admitted into evidence]; People v. Hogan (CA 1982) 31 C3d 815, 846 [183 CR 817].)

TRIAL PRACTICE NOTE: Counsel should always check the exhibits before they are sent into the juryroom to assure that inadmissible exhibits are not inadvertently sent to the jury.

    See also NCJIC 276.3.1 [Materials Into Juryroom: Miscellaneous Issues].

See Hollander & Bergman, Everytrial Criminal Defense Resource Book 2:9, pp. 2-13, 2-14 (West, 1999).

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

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