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25.4 Jury View Of The Scene

    25.4.1 Checklist Of Procedures Relating To Jury View
    25.4.2 Jury Should Be Instructed As To Whether Or Not The View Of The Scene Is Evidence
    25.4.3 Jury View: Unavoidable View Of Scene
    25.4.4 Factors In Determining Whether To Allow Jury View
    25.4.5 Jury View: Cautionary Instruction Regarding Changed Conditions
    25.4.6 Jury Should Be Admonished Against Talking During Jury View
    25.4.7 Jury To Remain Together And With The Judge Or Court Officer During Jury View
    25.4.8 Timing Of Jury View
    25.4.9 Transportation For Jury View
    25.4.10 Presence Of Judge At Jury View
    25.4.11 Presence Of Accused At Jury View
    25.4.12 Presence of Counsel At Jury View
    25.4.13 Comments By Counsel During Jury View
    25.4.14 Presence Of Press And Public At Jury View
    25.4.15 Importance Of Jury View In Identification Case
    25.4.16 Jury View: Record Of Proceedings

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PRACTICE NOTE: The following procedures relate to jury views:

    1.  The view is usually taken after opening statements but before start of the evidence, although there is no rule that would prevent a view being taken at any time before closing argument.

    2.  Prior to the view, the jury should be instructed not to discuss the case, or the view, or ask questions during the course of the view.

    3.  The jury should be taken to the view site on a bus provided by the court and supervised by court officers. Private vehicles should not be used to travel to the view site. This would increase the risk of extraneous juror contacts about the case and present complicated questions of responsibility should there be any motor vehicle accident during these travels.

    4.  Generally, the trial judge must attend the view. If anything is to be said at the view site to point out things to be viewed, the statements should be by the judge or a designated court officer.

    5.  Counsel for the parties should attend views. They should travel by separate vehicles and should not to communicate with the jury at the view site.

    6.  The press or other interested members of the public may wish to attend a view. If there is concern about such attendance, the court has limited control options depending on the location of the view site. Court officers would have to be alert to keep jurors separate from others, avoid opportunities for contacts with jurors, and limit other acts that could be prejudicial or interfere with the view.

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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RATIONALE: Without explicit instruction, the jury may not understand whether or not the jury view itself is to be considered as evidence or simply as illustrative of the evidence presented in the courtroom.

POINTS AND AUTHORITIES: Some jurisdictions consider the jury’s view of the scene as independent evidence. (See e.g., Witkin, California Evidence, 3d Ed. 1986, § 847d.) Other jurisdictions do not allow the jury to consider the view of the scene itself as evidence but do allow it for the purpose of assisting the jury in understanding evidence previously introduced. (See e.g., Parks v. Howard (GA 1990) 398 SE2d 308, 310; Gossett v. State (GA 1990) 388 SE2d 804, 806 [a viewing of the scene of the crime is not regarded as evidence]; Cargill v. State (GA 1986) 340 SE2d 891, 905 [trial court did not abuse its discretion in allowing jury to view scene of murder where court instructed jury that sole purpose of view was to help them understand evidence and that what they might see at scene was not evidence]; State v. Plath (SC 1984) 313 SE2d 619, 625 [it is not a taking of testimony].)

    The District of Columbia Court of Appeals has held that jury views can qualify as evidence. In Barron v. United States (DC, 2003) 818 A2d 987 the court held that a trial court faced with a request from a deliberating jury to view a vehicle that had been used in a shooting but not introduced into evidence should have either rejected the request or reopened the case. Since the identity and location of the shooter inside the vehicle were disputed issues of material fact, the trial court’s position that the car was not evidence and that the request was "nothing more than a juror's request to visit the scene" was erroneous.

    However, regardless of which rule is observed, the jury should understand what evidentiary role of the jury view.

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

See also A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

    Matters which you observed while viewing the scene are  evidence just as if they were given here in court. You decide what weight, if any, to give to the evidence viewed at the scene just as you do with any evidence.

    You should consider what you see during this viewing as evidence in the case, but you are not to give it any greater or lesser weight than the evidence presented in court.

    The view of the scene is only for the purpose of assisting you in understanding the evidence.

[See generally Gossett v. State (GA 1990) 388 SE2d 804, 806.]

    What you see during the jury view is not evidence in the case and must not be considered as evidence.  The view of the scene is only for the purpose of assisting you in understanding the evidence.

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RATIONALE: In some situations, such as where the crime took place in the public part of a small community, it may be unavoidable for the jurors to pass by the scene of the crime. In such situations, a special cautionary instruction may be warranted.

POINTS AND AUTHORITIES: Ordinarily, unauthorized viewing of the crime scene by a juror is misconduct.  (See e.g., People v. Sutter (CA 1982) 134 CA3d 806, 819 [184 CR 829].) In certain cases, however, it may not be possible for jurors to avoid passing by the scene of the crime during the trial. In such a case, the admonition regarding not visiting the scene should be modified or supplemented. 

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

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

    You are not to independently view or investigate [or rely on prior observations regarding] the scene referred to by the evidence in this case. However, in some cases, it may be unavoidable for you to [pass by the scene] [recall your past observations of the scene]. If this is the case, you must be especially vigilant not to investigate or look for anything related to the case. Anything you do see is not evidence and must not be considered for any purpose.

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    25.4.4    Factors In Determining Whether To Allow Jury View

PRACTICE NOTE: Factors to balance in deciding to grant or deny a request for a jury view of the scene include the following:

    1.  Changes in surrounding physical appearance of premises since the event in issue.

    2.  The potential value of a view in aiding the jury to understand and appreciate the significance of evidence that may be presented in the courtroom.

    3.  The time, delay and expense of a view.

    4.  Territorial limitations.

    5.  Available alternatives to provide such information to the jury on the record.

    6.  The risk of exposure of the jury to irrelevant and prejudicial information and influence.

    7.  Relevance of the view to issues in the trial.

    8.  Supervision and conduct of the jury.

(See U.S. v. Crochiere (1st Cir. 1997) 129 F3d 233, 236 [in determining whether to permit jury view of crime scene, court may consider such factors as orderliness of trial, whether jury would be confused or misled, whether it would be time-consuming or logistically difficult, and whether cross-examination had been permitted regarding details of scene]; State v. Oden (CT 1996) 684 A2d 1195, 1197 [in deciding motion to allow jury to view scene of crime, court should consider whether viewing scene is necessary or important so that jury may clearly understand issues and properly apply evidence]; see also Cissell, Federal Criminal Trials (Lexis, 5th ed. 1996) § 16-7, p. 418.)

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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RATIONALE: One of the potential problems with a jury view is that the conditions may have changed since the crime. If this is so the crime scene is extraneous and inaccurate evidence which may prejudicially mislead the jury.

POINTS AND AUTHORITIES: "Although discretionary, the power to authorize a view of the scene should be invoked only after the court is satisfied that the present conditions at the site are the same as those that existed on the date of the underlying incident, and that such a personal inspection is fair to both parties and reasonably necessary to do justice." [Internal quotation marks omitted.] (State v. Cintron (CT 1995) 665 A2d 95, 99; see also People v. Keltie (CA 1983) 148 CA3d 773, 782-83 [196 CR 243] [if conditions are different request for jury view may be denied]; People v. King (MI 1995) 534 NW2d 534, 538 [trial court gave cautionary instruction regarding changed conditions].)

    If a jury view is allowed, notwithstanding changed conditions, an instruction warning the jury about the possibility of changed conditions and cautioning it in this regard may be appropriate.

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

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

    Your consideration of the view of the scene should be cautious. Conditions may have changed since the time of the events in this case. Thus, the scene as it will appear to you during the view may be different than it was at the time of the events to which the witnesses have testified.

    Anything you saw during your view of the scene is not evidence.  Such observations are solely for the purpose of helping you understand and evaluate the evidence presented here in court.

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RATIONALE: Because the jury view is held outside of the courtroom, the jury may not understand that the admonition not to talk or discuss the case is applicable during the jury view.

POINTS AND AUTHORITIES: See McDowell v. Schuette (MO 1980) 610 SW2d 29, 39; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 5.17 [Jury- View Of Scene] (West, 5th ed. 2000).)

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

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

SAMPLE INSTRUCTION # 1:

    As in the courtroom, during the jury view you must not direct questions to any of the participants or discuss any matters relating to the case among yourselves.  If you have a question it should be given to me by a written note.

    During the view of the scene, do not discuss anything you see or any issue in the case. You must not discuss these matters among yourselves until you begin your deliberations.

    During the view of the scene you must refrain from conversations concerning the case and not permit others to converse with you concerning it.

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RATIONALE: Due to the less formal nature of a jury view of the scene, there may be a danger that the jurors will separate from the group and either discuss the case, or have a different view of the scene than the remainder of the jury. Accordingly, it is important to assure that the jury remain together as a group and under the control of the judge or court officer so that discussion among the jurors can be prevented and so that all jurors will see the same thing at the scene.

POINTS AND AUTHORITIES: Just as the jury must all be present together with the judge and counsel during trial proceedings, so too should they remain together during a jury view. (Cf. Burke v. U.S. (DC MA 1965) 247 FSupp 418, 419 [jury, judge, witnesses and attorneys all transported together to and from the jury view].)

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

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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PRACTICE NOTE: "The view is usually taken after opening statements but before start of the evidence, although there is no rule that would prevent a view being taken at any time before closing argument." (Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-4 [View] (Lexis, 1999).)

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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PRACTICE NOTE: Prudent procedure entails taking the jury to the view site in a bus provided by the court and supervised by court officers. Use of private vehicles for travel to the view site would increase the risk of extraneous juror contacts about the case and present complicated questions of responsibility should there be an accident during these travels. 

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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PRACTICE NOTE: Generally, the trial judge should attend the view. If any statements are to be said at the view site, the statements should be made by the judge or a designated court officer.  (See Wharton’s Criminal Procedure (West, 13th Ed. 1989) § 4, pp. 8-9.) 

Annotation, Necessity For Presence Of Judge At View By Jury In Criminal Case, 47 ALR2d 1227.

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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PRACTICE NOTE: The courts have consistently held that Due Process (5th and 14th Amendments) and Confrontation (6th Amendment) principles guarantee a criminal defendant's right to be present "at every stage of his trial where his absence might frustrate the fairness of the proceedings."  (U.S. v. Faretta (1975) 422 US 806, 820 [95 SCt 2525; 45 LEd2d 562]; U.S. v. Gagnon (1985) 470 US 522, 526-27 [105 SCt 1482; 84 LEd2d 486]; Illinois v. Allen (1970) 397 US 337, 338 [90 SCt 1057; 25 LEd2d 353]; Snyder v. Massachusetts (1934) 291 US 97, 105-06 [54 SCt 330; 78 LEd 674]; Sturgis v. Goldsmith (9th Cir. 1986) 796 F2d 1103, 1108; U.S. v. Frazin (9th Cir. 1986) 780 F2d 1461, 1469; Badger v. Cardwell (9th Cir. 1978) 587 F2d 968, 970; Bustamante v. Eyman (9th Cir. 1972) 456 F2d 269, 273.)

    However, personal presence at a jury view is guaranteed by the federal constitution only to the extent that it is necessary to assure the fairness of the hearing. (Snyder v. Massachusetts (1934) 291 US 97 106-07 [54 SCt 330; 78 LEd 674]; see also Chance v. State (GA 1923) 119 SE 303, 305 and Hunter v. Commonwealth (VA 1996) 477 SE2d 1, 2.)

CAVEAT: Whether Defendant Should Be Present At Jury View. In some cases, defense counsel may wish to consider waiving the right of the defendant to be present at a jury view to avoid the potential for prejudice. The defendant’s presence at the scene may make it easier for the jury to place the defendant there where the crime was committed.

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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PRACTICE NOTE: The defendant has a Federal Constitutional right to presence of counsel at all critical stages of the proceedings. Normally, a jury view would qualify and counsel should be present. (See e.g., Arnold v. Evatt (4th Cir. 1997) 113 F3d 1352, 1361.)

    When counsel is absent from a critical stage of the trial the defendant's 6th Amendment right to counsel is also violated. (Mempa v. Rhay (1967) 389 US 128, 134 [88 SCt 254; 19 LEd2d 336].).

    "In a long line of constitutional cases ... stemming back to the [Supreme] Court’s landmark opinion in Powell v. Alabama (1932) 287 US 45 [53 SCt 55; 77 LEd 158], it has been firmly established that a person’s 6th and 14th Amendment right to counsel attaches only at or after the time the adversary judicial proceedings have been initiated against him." (Kirby v. Illinois (1972) 406 US 682, 688 [92 SCt 1877; 32 LEd2d 411].)

    Once the adversary process has begun, the 6th Amendment guarantees the accused the assistance of counsel not only at trial, but at any "critical" stage of the prosecution, including pretrial proceedings. (U.S. v. Wade (1967) 388 US 218 [87 SCt 1926; 18 LEd2d 1149].) A critical stage is a point in the criminal process at which the accused requires "aid in coping with legal problems or assistance in meeting his adversary confrontations." (U.S. v. Ash (1973) 413 US 300, 313 [93 SCt 2568; 37 LEd2d 619].)

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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PRACTICE NOTE: Where attorneys desire that the jury notice certain things at the view site, they should not take it upon themselves to point these out but should work through the court. If any statements are to be said at the view site, the statements should be made by the judge or a designated court officer.

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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PRACTICE NOTE: Arguably, the federal constitutional right to public trial would apply to jury view proceedings. (See NCJIC 2.8 [Right To Public Trial].) Accordingly, unless good cause to preclude the attendance of the press or public exists, they may not be excluded from a jury view. If the public is in attendance, court officers should be alert to keep jurors separate from the public, avoid opportunities for contacts with jurors, and limit other acts that could be prejudicial or interfere with the view. (See State v. Davis (NC 1987) 356 SE2d 607, 611-12 [trial court kept press quiet and away from jury during jury view].)

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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PRACTICE NOTE: A jury view may be particularly useful where identification is a key issue. "For example, prosecution witnesses invariably claim the lighting was good at the scene and that their view of the culprit was unobstructed. On the formal view, counsel will have the opportunity to point out to the jury the nature and source of the lighting as well as the actual vantage point from which the witnesses allegedly made their identifications. The jurors can be requested to position themselves in just such vantage points. Often, a witness’ statement of what was seen from a certain position is contrary to the actual physical layout." (Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 5-11, p. 257.)

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].

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PRACTICE NOTE: Because much of what occurs during a jury view is nontestimonial, it will be necessary to "state-for-the-record" any matters counsel wishes to memorialize on the record. (See NCJIC 2.5.7 [Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter].)

    Additionally, it may be appropriate to request the presence of a reporter during the jury view in case statements are made.

See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].

See also generally, NCJIC 305.10.5 [Jury View Of The Scene].