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Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 13 - CHAPTER 276
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276.2 Deliberations: Secrecy

    276.2.1 Secrecy Of Deliberations: Jury Never Required To Explain Verdict To Anyone
    276.2.2 Deliberations: Admonition Against Disclosure of Jury Balloting
    276.2.3 Secrecy Of Deliberations: Videotaping Of Jury Deliberations

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 276

RATIONALE: Unless the jurors understand that their deliberations are secret and do not have to be explained there may be a chilling effect on free, open-minded discussion and interaction among the jurors.

POINTS AND AUTHORITIES: Private and secret juror deliberations are essential features of the federal constitutional right to trial by jury. (6th and 14th Amendments; see U.S. v. Brown (DC Cir. 1987) 823 F2d 591, 596.) "Juror privacy is a prerequisite of free debate, without which the decision making process would be crippled." (U.S. v. Symington (9th Cir. 1999) 195 F3d 1080, 1086 citing Note, Public Disclosures of Jury Deliberations, 98 Harv. L. Rev. 886, 889 (1983); see also U.S. v. Gonzalez-Balderas (5th Cir. 1994) 11 F3d 1218, 1222.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.8].

CAVEAT: If the defendant seeks to show juror misconduct it will have to be contended that the policy purposes of juror privacy are outweighed by the defendant's interest in a fair and impartial trial. (See FORECITE National™ 288.2 [Juror Statements Regarding Failure To Follow Instructions Should Not Be Excluded Under Domestic Rules Of Evidence]; see also FORECITE National™ 288.4 [Defendant Should Be Permitted To Prove Juror Agreement To Disregard An Instruction].)

See  Benchbook For U.S. District Court Judges [2.08.2 General Instructions To Jury At End Of Criminal Case: Outline Of Instructions]. 

See also Benchbook For U.S. District Court Judges [2.09 Verdict-Criminal].

See generally, FORECITE National™ 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

    After hearing my instructions, you will leave the courtroom together to make your decision. Your deliberations will be secret. You will never have to explain your verdict to anyone.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 1 [Standard Preliminary Instruction Before Trial] ¶ 13, p. 3 (1988); see also U.S. v. Gonzalez-Balderas (5th Cir. 1994) 11 F3d 1218, 1222.]

    Your deliberations will be secret. You will never have to explain your verdict to anyone.

[1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.09 [Outline Of The Trial] ¶7, p. 20 (2002); see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.24 at 35 [Duty To Deliberate - Verdict Form] p. 11 (1997); 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL SI11 [Character Evidence] (1997).]

 VOLUME 13 - CHAPTER 276

RATIONALE: If the jury reveals its numerical division in balloting, subsequent instructions to the jury may become coercive. Therefore, it may be appropriate to warn the jury in advance not to disclose their balloting.

POINTS AND AUTHORITIES: See FORECITE National™ 286.1.12 [Inquiry Into Numerical Division Of Jury May Coerce Verdict]; see also FORECITE National™ 287.5.9 [Polling Of Jury Should Stop Immediately When Any Juror Disagrees With The Verdict].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.8; 10.2].

See Benchbook For U.S. District Court Judges [2.08.1 General Instructions To Jury At End Of Criminal Case: Introductory Note].

See also Benchbook For U.S. District Court Judges [2.08.2 General Instructions To Jury At End Of Criminal Case: Outline Of Instructions].

See also generally, FORECITE National™ 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

    During any communication with me or my staff, whether written or oral, do not disclose to anyone how you are divided numerically in your balloting.  

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.47 [Admonition Against Disclosure Of Jury Balloting] (West, 6th Ed. 1996).]

    If it becomes necessary during your deliberations to communicate with me, you may send a note through the jury officer signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with me on anything concerning the case except by a signed writing, and I will communicate with any member of the jury on anything concerning the case only in writing, or orally here in open court. If you send out a question, I will consult with the parties as promptly as possible before answering it, which may take some time. You may continue with your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone--including me--how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged.

[1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.05 [Communication With The Court] (2002).]

    If it becomes necessary during your deliberations to communicate with me, you may send a note through the marshal [or bailiff], signed by your foreperson or by one or more members of the jury.* No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone—including me—how the jury stands, numerically or otherwise, on the question of the guilt of the defendant, until after you have reached a unanimous verdict or have been discharged.

* See FORECITE National™ 16.2.4.3 [Any Juror May Communicate With The Court At Any Time].

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 7.6 [Communication With Court] (2000).]

 VOLUME 13 - CHAPTER 276

PRACTICE NOTE: State ex rel. Rosenthal v. Poe (Tex. Crim. App. 2003) 98 SW3d 194 held that allowing jury deliberations in a murder trial to be videotaped for post-trial broadcast on public television violates a state law forbidding others from being with the jury while it is deliberating. Additionally, the court reasoned that "videotaping the jury deliberation with an unattended camera does introduce an ‘outside influence and pressure’ on the jury while it is deliberating." In further support of this point, the court quoted a passage from Estes v. Texas (65) 381 US 532 [85 SCt 1628; 14 LEd2d 543] in which the U.S. Supreme Court commented on the effect of televising courtroom proceedings: "[N]ot only will a juror’s eyes be fixed on the camera, but also his mind will be preoccupied with the telecasting rather than with the testimony." Finally, the court observed that jury deliberations should be private and confidential in order to promote freedom of debate and independence of thought.