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276.4 Replaying Recordings During Deliberations

    276.4.1 Replaying Of Recordings During Deliberations: Cautionary Concerns
    276.4.2 Recordings In Juryroom: No Undue Emphasis
    276.4.3 Recordings: Replaying Should Be Done In Open Court
    276.4.4 Video Recording: Consideration Of Facial Expressions, Etc. In Understanding What Was Said
    276.4.5 View That Playback Of Recorded Evidence Should Not Be Permitted In The Juryroom During Deliberations

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RATIONALE: In order to ensure that tape recorded evidence is played properly, impartially and completely, and to ensure that unadmitted evidence is not played in error, it may be appropriate to require that the playback be done by the bailiff or another person designated for this purpose by the court.

POINTS AND AUTHORITIES: When the jury has received a recording and seeks to have it replayed, it is necessary to assure that the jury does so properly and completely. (See e.g., NCJIC 284.2.2 [Readback Of Testimony: Necessity Of Cautionary Instruction To Avoid Undue Emphasis].)

    Accordingly, the jury should be instructed in such a way as to avoid any playing of recorded evidence without assurances that it is done so properly and completely. (See e.g., OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, OJI 405.64 [Cassette Tapes] (Anderson, 1997).)

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

CAVEAT: There may be an issue as to whether the jury should be permitted to have and listen to recorded matters in the juryroom at all. The playback of recorded evidence is similar to a readback of testimony, and, therefore, it may be appropriate to only permit such a playback in open court and in the presence of the parties and the judge. (See NCJIC 284.1.5 [Readback: Presence Of Counsel And Defendant].) Furthermore, even if the playback is not done in open court, counsel should carefully consider whether the presence of counsel (and the defendant) may be necessary to assure that no prejudice results from the playback of the recording even if done by the bailiff or court representative. (See NCJIC 284.1.5 [Readback: Should Be Conducted In Open Court And In The Presence Of Counsel And Defendant].)

    There is the additional problem of allowing a stranger into the jury deliberation room to play the recording (see NCJIC 276.4.5 [View That Playback Of Recorded Evidence Should Not Be Permitted In The Juryroom During Deliberations]) and, if nothing else, further admonition should be given regarding any potential adverse impact that the presence of this person could have upon the jury. (See NCJIC 276.3.2 [Interpreter In Juryroom].)

    See also NCJIC 284.1.16 [Readback: Replaying Of Video Or Audio Tapes].

    See also NCJIC 25.9.6.4 [Replaying Of Video Tape As Prejudicial].

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

    During your deliberations you will have, as exhibits, [a recording] [recordings] which [was] [were] introduced into evidence. If at any point you wish to hear [this recording] [any or all of these recordings] [it] [they] must be played by, and under the control of, the bailiff.  Please send me a written note if you wish to hear a recording.

[Cf. OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, OJI 405.64 [Cassette Tapes] (Anderson, 1997).]

SAMPLE INSTRUCTION # 2:

    During deliberations you may listen to any recording admitted into evidence.  However, you must not play the recording yourself.  The bailiff or other person designated by the court must play the recording for you under my direction.

    If any juror* or jurors desire to have a recording played during deliberations the juror or jurors should send me a note requesting that the recording or recordings be played.

* See NCJIC 16.2.4.3 [Any Juror May Communicate With The Court At Any Time].

[Source: NCJIC.]

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RATIONALE: Allowing jurors to play recordings again in the juryroom has much the same prejudicial effect as submitting depositions or other exhibits to the jury during deliberations. There is a danger that some statements will be unfairly given undue emphasis, and that other testimony will be omitted altogether.

POINTS AND AUTHORITIES: Whenever particular exhibits are taken into the juryroom there is a danger of undue emphasis. (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 25.2.9 [Avoiding Undue Influence By Waiting To Give Jurors Exhibits Until They Request Them].) This danger would seem to be especially acute with respect to electronic recordings.

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

CAVEAT: The practice of allowing the jury to play recordings on their own should be carefully considered in light of the potential that undue emphasis may be given to a particular portion of the evidence and/or the concern that the jury may inadvertently only listen to a portion of the tape while failing to listen to other important portions. (See NCJIC 276.4.5 [View That Playback Of Recorded Evidence Should Not Be Permitted In The Juryroom During Deliberations].)

    See also NCJIC 25.2.5 [Potential Prejudice When Written Statement Offered As Exhibit Favors One Side].

Annotation, Permitting Documents Or Tape Recordings Containing Confessions Of Guilt Or Incriminating Admissions To Be Taken Into Juryroom In Criminal Case, 37 ALR3d 238.

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].

    [I am providing you with the recordings and a player. You are not required to play the tapes, in part or in whole. You may rely, instead, on your recollections of these recordings as you heard them at trial. If you do decide to listen to [[or watch]] a tape recording and wish to have the transcript corresponding to that recording, ask the Marshal in writing and the transcript will be given to you. You may choose to listen to [[or watch]] the cassette without the transcript.

[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.17 [Recordings/Transcripts Of Recordings], ¶ 4 (1999).]

    You are not to place any undue emphasis on the recording simply because it has been given to you in the juryroom. Nor are you required to listen to the tape. You may instead rely on your own recollection of the recordings as you heard them at trial.

[Source: NCJIC.]

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    See NCJIC 276.4.5 [View That Playback Of Recorded Evidence Should Not Be Permitted In The Juryroom During Deliberations].

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    See NCJIC 25.9.6.2 [Video Recording: Consideration Of Facial Expressions, Etc. In Understanding What Was Said].

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PRACTICE NOTE: The playback of recorded evidence is similar to a readback of testimony. (See e.g., Bustamante v. Eyman (9th Cir. 1972) 456 F2d 269, 271 [attorney's waiver of client's presence when tape recording was replayed to jury required reversal and remand].) There is a danger of undue influence when the jury is allowed to have access to taped witness statements during deliberations. (See e.g., Young v. State (FL 1994) 645 So2d 965.) Therefore, it may be appropriate to only permit such a playback in open court and in the presence of the parties and the judge. (Ibid.; Warner v. State (WY 1995) 897 P.2d 472 [poor audibility may require repeated playbacks]; Munoz v. State (WY 1993) 849 P2d 1299, 1301; Pino v. State (WY 1993) 849 P2d 716, 718-19; See NCJIC 284.1.5 [Readback: Should Be Conducted In Open Court And In The Presence Of Counsel And Defendant].) Hence, it may be appropriate to require replay in open court. 

    Furthermore, even if the playback is not done in open court, counsel should carefully consider whether the presence of counsel (and the defendant) may be necessary to assure that no prejudice results from the playback of the recording even if done by the bailiff or court representative.

CAVEAT: There is the additional problem of allowing a stranger into the jury deliberation room to play the recording. (See NCJIC 276.3.3 [Materials In Juryroom: Jury Not To Refer To Dictionary Or Other Outside Sources].) If nothing else, further admonition should be given regarding any potential adverse impact that the presence of this person could have upon the jury. (See NCJIC 276.3.3 [Materials In Juryroom: Jury Not To Refer To Dictionary Or Other Outside Sources].)

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