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

 VOLUME 13 - CHAPTER 276
Go to Volume 13 Table of Contents  -  Go to Chapter 276 Table of Contents

276.3 Deliberations: Materials In Jury room

    276.3.1 Deliberations: Materials Into Juryroom--General Principles
    276.3.2 Interpreter In Jury room
    276.3.3 Deliberations: Materials In Juryroom--Jury Not To Refer To Dictionary Or Other Outside Sources
    276.3.4 Jury's Request For Exhibits Or Materials Not Admitted Into Evidence
    276.3.5 Jurors Request For Exhibits Which, For Practical Reasons, Cannot Be Sent Into The Juryroom
    276.3.6 Jury's Request For Visual Aid Chart, Etc. Used During Argument Or Testimony But Not Admitted Into Evidence
    276.3.7 Jury Use Of Materials Not Received In Evidence But Which May Be Helpful In Managing The Evidence
    276.3.8 Materials In Juryroom: Sanitizing Juryroom And Reviewing Materials Before Sending Them To Jury

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

 VOLUME 13 - CHAPTER 276

PRACTICE NOTE: The jurors may take the following into the juryroom during deliberations: all documents or papers, except depositions, which have been received in evidence; a copy of the indictment or the information; a bill of particulars; the written instructions of the trial judge; the forms or verdict approved by the trial judge; notes taken by the jurors of evidence presented during the trial; and such tangible things, received in evidence as exhibits. (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 483, p. 127.)

    But see NCJIC 25.2.8 [Availability Of Exhibits During Deliberations]; NCJIC 25.2.12 [Jurors Request For Exhibits Which, For Practical Reasons, Cannot Be Sent Into The Juryroom].

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 Other Sources].

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

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

 VOLUME 13 - CHAPTER 276

    See NCJIC 16.16.11 [Interpreter In Juryroom].

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

 VOLUME 13 - CHAPTER 276

    See NCJIC 16.6.2 [Improper Use Of Dictionary, Reference, Reading Or Research Materials].

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

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

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

 VOLUME 13 - CHAPTER 276

RATIONALE: When the jury requests materials not admitted into evidence a cautionary instruction may be necessary to assure that the jury understands that it may not consider such materials.

POINTS AND AUTHORITIES: Occasionally, the court will receive a request from the jury for documents or materials not admitted into evidence or sent to the jury during its deliberations. When the jury requests evidence not admitted at trial such as missing witnesses or missing evidence there are two concerns: (1) whether the evidentiary stage of the trial should be reopened to allow presentation of the missing evidence and (2) whether the jury will draw adverse inferences from the missing witnesses or evidence. Such requests for unadmitted physical or written materials must be denied unless all parties agree to allow the materials to go to the jury. Otherwise the record would be effectively reopened for introduction of new evidence. (Alexander, MAINE JURY INSTRUCTIONS MANUAL 8-4 (comment) [Instruction: Request For Material Not Before Jury] (Lexis, 1999).)

    However, if the jurors request suggests that it is contemplating matters which they cannot consider or matters which the court has directed them to disregard, both counsel and the trial court should be alert to the potential need for inquiry into possible juror misconduct. (See NCJIC 3.4 [Duty To Inquire Into Juror Misconduct].) The failure to request such inquiry on the part of defense counsel could waive the issue. (See e.g., State v. Cote (ME 1988) 540 A2d 470 [jury requested that defendant himself testify; defense counsel agreed to responding instruction that jury should attempt to reach a verdict on the basis of the evidence presented and that no more evidence would be presented]; see also NCJIC 4.1 [The Basic Rule: Instruction Issues Should Be Raised At Trial].)

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

    See also 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 24.3 [What Is Not Evidence].

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

See A Manual On Jury Trial Procedures [5.2 D. Communications With A Deliberating Jury: Extrinsic Evidence During Deliberations].

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

    In response to your request for ________________ (insert nonadmitted exhibits requested by the jury), I admonish you that those exhibits are not evidence in this case and you must not consider them for any purpose.

[Source: NCJIC.]

SAMPLE INSTRUCTION # 2:

    The exhibits you requested were not admitted into evidence.  Therefore, they cannot be sent into the juryroom and you must not consider those exhibits for any purpose or speculate about what they might show.

[Cf. Alexander, MAINE JURY INSTRUCTIONS MANUAL 8-4 (comment) [Instruction: Requested For Material Not Before Jury] (Lexis, 1999).]

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

 VOLUME 13 - CHAPTER 276

PRACTICE NOTE: There are situations where evidence is intentionally not allowed to go into the juryroom. For example, where both firearms and live shells are introduced into evidence, it is common practice for the court to allow either the firearm or the live shells to go to the jury but not both at the same time. (Alexander, MAINE JURY INSTRUCTIONS MANUAL 8-4 [Instruction: Requested For Material Not Before Jury] (Lexis, 1999).) In such cases the jurors should be advised that if they wish to see the evidence that has not been given to it, they need only ask and, for example, pass out the firearm in order to get the live shell. (Ibid.) A similar problem exists with respect to actual drug samples which, if submitted to the jury, may be "tested" by the jury and could raise disputes as to whether all evidence sent to the jury was returned to the court. (Alexander, MAINE JURY INSTRUCTIONS MANUAL 8-4, Comment [Instruction: Requested For Material Not Before Jury] (Lexis, 1999).) In such cases, however, it is unlikely that keeping the actual drugs from the jury will create prejudice, but counsel should be alert to situations where this may be an issue.

    See also NCJIC 284.1.9 [Jury's Request for Material Not Admitted Into Evidence].

    See also NCJIC 24.2 [What Is Evidence].

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

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

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

 VOLUME 13 - CHAPTER 276

PRACTICE NOTE: Generally, a deliberating jury must not be given materials which were not admitted into evidence. (See NCJIC 276.3.4 [Jury's Request For Exhibits Or Materials Not Admitted Into Evidence].) Presumably, this prohibition should also apply to visual aids or charts used during argument or testimony but not admitted into evidence. (See generally NCJIC 284.2.4 [Readback: Arguments Of Counsel]; see also NCJIC 25.3.2 [Jury Consideration Of Charts, Summaries, Etc. Which Were Not Admitted Into Evidence].)

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

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

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

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

 VOLUME 13 - CHAPTER 276

PRACTICE NOTE: Materials not admitted into in evidence that might be helpful in managing the evidence -- such as tape players, projectors, magnifying glasses, calculators, diagrams, charts and pleadings -- may be sent into the juryroom.  However, before doing so the judge must determine that their potential utility outweighs the risk that, even with cautionary instructions, their presence could be unfairly prejudicial or subject to misuse. (Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999) § 22.434, p. 164; see also Cissell, Federal Criminal Trials (Lexis, 5th ed. 1996) § 12-4 (f) [court has discretion to determine what materials will be permitted in the juryroom]; but see NCJIC 16.6.5 [Use Of Magnifying Glass During Deliberations: Limiting Instruction].)

See generally, NCJIC 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

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

 VOLUME 13 - CHAPTER 276

PRACTICE NOTE: Juror exposure to reference materials, newspapers, magazines and other extraneous materials may introduce information or opinion not presented during the trial. This violates the defendant’s right to confront, cross-examine or challenge all witnesses and evidence raised by the prosecution. (See NCJIC 16.5 [Duty To Report Exposure To Or Knowledge Of Extraneous Matters]; see also NCJIC 272.3.6 [Reference To Outside Sources During Summation/Closing Argument].) Such materials may also cause bias and/or misstate the law.

    Before the jurors retire to begin deliberations the juryroom should be "sanitized."  Also, all counsel should review anything that is sent into the room, to insure that nothing extraneous is inadvertently included. (Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999) § 22.44, pp. 164-5; see also Fox v. State (IN 1984) 457 NE2d 1088, 1092-93 [possibly prejudicial magazine found in juryroom].)

    Counsel may also wish to ask for the bailiff to make sure there are no extraneous items such as books, dictionaries or other similar items in the juryroom. (Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 2:9, p. 2-14.)

See generally, NCJIC 305.3.8 [Conduct And Duty Of The Jury: Deliberations].