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    283.1 Communication With Jury: Duty Of Court To Supervise Jury Deliberations
    283.2 Communication Between Jury And Trial Judge: Procedure
    283.3 Communication From Jury: Propriety Of Withholding From Parties And/Or From The Public Record
    283.4 Communication Between Court Personnel And Jury
    283.5 Any Juror May Communicate With The Court At Any Time
    283.6 Communication With Jury: Communication Should Be In Writing But May Be From Individual Juror Rather Than Jury As A Whole
    283.7 Jury Inquiry During Deliberation: Suspension Of Deliberations
    283.8 Alternate Jurors Should Not Be Present For Proceedings In Response To Juror Inquiries During Deliberations
    283.9 Informing The Jury Of The Right To Request A Readback Of Testimony
    283.10 Jury's Right To Request Exhibits
    283.11 Jury Request For Witnesses Or Evidence Not Presented At Trial
    283.12 Explanatory Instruction As To Jury's Right To Written Instructions, Exhibits, Readback Of Testimony, Etc.
    283.13 Juror Inquiry Form
    283.14 Communication With Jury: Federal Circuit Model Instructions And Notes

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PRACTICE NOTE: See People v. Bayes (NY 1991) 584 NE2d 643, 645; [577 NYS2d 585] [defendant was deprived of fair trial where town court judge allowed attorneys to answer questions posed by jury concerning court's instructions; court's surrender of its nondelegable judicial responsibility to supervise jury deliberation deprived defendant of his fundamental right to trial by jury].)

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Communications between the trial judge and jurors after they have begun deliberations, except in open court, are improper. It is also improper for the judge to enter the juryroom, or to communicate with the jurors through another person.  (Wharton’s Criminal Procedure (13th Ed. 1989) § 489.)

    This rule against ex parte contacts is based on concerns of orderly trial procedure and also protects the impartiality of the jurors. Ex parte communications may violate a defendant's rights under the 5th and 6th Amendments, as well as rights provided by statutes authorizing the defendant's presence at all stages of the trial. (See Rogers v. U.S. (1975) 422 US 35, 39 [95 SCt 2091; 45 LEd2d 1]; United States v. Bustamante (6th Cir. 1986) 805 F2d 201.)

    Accordingly, all jury inquiries should be submitted in writing, marked as court exhibit, and read into the record in the presence of defendant and counsel before the jury is recalled to the courtroom. Counsel should then be given an opportunity to be heard on what would constitute an appropriate responsive instruction. The jury should then be brought in, the note should be read again, and the response given.  (SEe Rogers v. U.S. (1975) 422 US 35, 39 [95 SCt 2091; 45 LEd2d 1];  Fillippon v. Vein Slate (1919) 250 US 76, 81; U.S. v. Tillem (2nd Cir. 1990) 906 F2d 814, 827; People v. Lozario (NY 1993) 81 NY2d 801, 803; People v. O’Rama (NY 1991) 78 NY2d 270, 277 [it is the preferred procedure to obtain juror questions in writing, mark the written inquiry as an exhibit and read it into the record. Counsel should then be afforded an opportunity to respond with any response to the question provided to the jury in open court]; United States v. Bustamante (6th Cir. 1986) 805 F2d 201, 203 ["[I]t [i]s error for the trial judge to respond to the jury's question other than in open court and in the presence of counsel for both sides"].)

    In sum, a response to juror inquiry should include procedures such as the following:

    "(1)  The jury's question should be submitted in writing,

    (2)  The question should be marked as a court exhibit and read into the record,

    (3)  Counsel should be afforded an opportunity to suggest appropriate responses, and

    (4)  Once the jurors are recalled, the question, if substantive, should be read into the record in their presence." (U.S. v. Ulloa (2nd Cir. 1989) 882 F2d 41, 45.)

    See also NCJIC 2.1.10 [Supplemental Instructions Should Not Be Delivered By Written Notes].

    See also NCJIC 283.7 [Jury Inquiry During Deliberation: Suspension Of Deliberations].

    See also NCJIC 297.2.9 [Prejudice On Appeal: Erroneous Or Incomplete Instructions In Response To Jury Inquiry].

STRATEGY NOTE WHERE COURT HAS COMMUNICATED WITH JUROR, EX PARTE: If the judge has improperly communicated with a juror or the entire jury counsel should demand a mistrial.  (Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) pp. 39:2.) If the mistrial motion is denied, include in the record as much detail as possible explaining how the judge's behavior has prejudiced the defendant.  (Ibid.; see also United States v. Cowan (5th Cir. 1987) 819 F2d 89, 93 [ex parte communications between judge and jurors impermissible due to absence of defense counsel pressure to return verdict that night, and apparent confusion of the jurors].) 

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

Annotation, Communication Between Court Officials Or Attendants And Jurors In Criminal Trial As Ground For Mistrial Or Reversal--Post-Parker Cases, 35 ALR4th 890.

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See also A Manual On Jury Trial Procedures [5.2 B. Communications With A Deliberating Jury: Ex Parte Communications].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See Graham v. State (MD 1992) 601 A2d 131, 139 [there may be occasions when at least a part of a communication from a jury may properly be withheld from the parties and/or from the public record]; see also United States v. Ronder (2d Cir.1981) 639 F2d 931, 934 ["On occasion the personal nature of a note or the risk of exacerbating tensions among jurors may make it appropriate to forgo reading the text of the note to the entire jury; in that event it may be appropriate to disclose the note to counsel in camera or even to make some redaction"]; United States v. Robinson (2d Cir.1977) 560 F2d 507, 516-17 [note from jury that provided no new information except name of holdout juror properly withheld from counsel and sealed in the record].)

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

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RATIONALE: A cautionary instruction may be appropriate to limit improper juror communications with court personnel.

POINTS AND AUTHORITIES: Improper communications between the court personnel such as the clerk or bailiff and jurors may be prejudicial. (See e.g., Agnew v. Leibach (7th Cir. 2001) 250 F3d 1123 [defendant’s rights to a fair trial before an impartial jury (5th, 6th and 14th Amendments) denied if the bailiff who attended the jury during the first day or two of the trial testifies on behalf of the prosecution; prejudice is presumed].)  Hence, the trial court should "remind their bailiffs of the importance of their role as guardians of the integrity of the jury’s deliberative process and ... caution them to limit their communications with jurors to the bear essentials and to make no statement that a juror might construe as relating to the merits of the case, the interpretation of legal rules, or the nature of the deliberative process. The need for such caution is particularly acute when...the jury is sequestered and will be under the bailiffs’ care and supervision for an extended time." (People v. Hedgecock (CA 1990) 51 C3d 395, 420 [272 CR 803]; see also Wharton’s Criminal Procedure (13th Ed. 1989) § 491, pp. 201-208.) 

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

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

    I admonish you not to attempt to discuss anything about the case with our court officers and staff.  They are not permitted to communicate with you about the case.

[See Alexander, MAINE JURY INSTRUCTIONS MANUAL 6-64 [Instruction 63-Communications Between Court And Jury] (Lexis, 1999).]

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RATIONALE: The instructions should not preclude an individual juror from independently communicating with the judge. In times of juror conflict it may not be feasible or reliable to rely solely on communications submitted through the foreperson.

POINTS AND AUTHORITIES: Some standard instructions inform the jury that questions or messages from a juror to the judge should be sent to the judge "through your foreperson." (See e.g., 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.01 [Deliberation And Verdict - Introduction] (1991).) Others give the impression that the communication must come from the jury as a whole. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.43 [Jury Deliberations] (West, 6th Ed. 1996) .)

    However, each individual juror should be able to send a note to the judge.  For example, if some jurors are engaging in misconduct the court may never learn about it unless individual jurors can send out notes.  Additionally, it is not uncommon for conflicts between or among the jurors to become heated and even coercive. (See NCJIC 278.5 [Duty To Deliberate: Impropriety of Juror-On-Juror Coercion].) In such a situation, if the foreperson is among the group opposed to the juror who wishes to communicate with the judge, an instruction requiring communication to occur through the foreperson may preclude the juror from bringing serious and potentially prejudicial matters to the attention of the judge.

    Accordingly, the instructions should make it clear to the jurors that any individual juror may bring a matter to the judge’s attention at any time by giving a note or verbally communicating with the bailiff or court officer who is attending the jury.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5; 7.12].

STRATEGY NOTE: Counsel will have to evaluate the risk that a "hold-out" juror may be dismissed if, in response to a juror complaint, the majority accuses the juror of nullification (voting to acquit notwithstanding the instructions). (See NCJIC 278.7 [Dismissal Of Juror For Failure To Deliberate]; see also NCJIC 280.6 [Dismissal Of Nullifying Juror].) On the other hand, if a hold out juror is coerced it may be advantageous to have him or her come forward. (See NCJIC 278.5 [Duty To Deliberate: Impropriety of Juror-On-Juror Coercion].)

CAVEAT: While it may not be common, it is certainly possible that occasionally an illiterate juror will be on the jury. Accordingly, the juror should be informed that communication with the judge is not limited to written notes. (See NCJIC 283.6 [Communication With The Jury: Communication Should Be In Writing But May Be From Individual Juror Rather Than Jury As A Whole].)

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

    It is not necessary that any jury communication be from the jury as a whole or be sent through the jury foreperson. Any juror may submit an inquiry to the court at any time by submitting a note to the bailiff or otherwise indicating to the bailiff that communication with the court is necessary.

[Source: NCJIC.]

    Any individual juror may bring any matter to my attention by giving a note to the bailiff or court officer who is attending the jury. It is not necessary that the communication be made through the jury foreperson.

[Source: NCJIC.]

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RATIONALE: Requiring jurors to communicate in writing assures a record of the communication and more easily permits an individual juror to contact the judge throughout the trial and especially during deliberations.

POINTS AND AUTHORITIES: The jury should be encouraged to communicate with the court in writing so that the trial judge can more easily fulfill the responsibility of maintaining an accurate record of the proceeding. (See 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 7.05 [Communication With Court] Committee comment (1999); see also People v. O’Rama (NY 1991) 574 NYS2d 159, 163; Bray v. State (TX 1972) 478 SW2d 89, 91.)

See also NCJIC 283.5 [Any Juror May Communicate With The Court At Any Time].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5; 7.12].

PRACTICE NOTE: An instruction requiring the jury to communicate in writing presents at least two potential concerns: (1) it should be established that all jurors are literate (see NCJIC 2.1.4 [Accounting For Illiterate Jurors]) and; (2) the jurors should understand that any individual juror may communicate with the court, not just the foreperson. (See e.g., NCJIC 283.5 [Any Juror May Communicate With The Court At Any Time]).

NOTE: "It may also be appropriate to instruct the jurors that, if any communication is made, it should not indicate the jury’s numerical division." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 7.05 [Communication With Court] Committee comment (1999).)

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

    I do not anticipate that you will need to communicate with me. If you do, however, the only proper way is in writing, signed by the foreperson, or if he or she is unwilling to do so, by some other juror, and given to the marshal.

[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 7.05 [Communication With Court] (1999).]

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RATIONALE: If the jury is allowed to deliberate pending an answer to their inquiry, a verdict may be reached based upon incomplete or unreliable information.

POINTS AND AUTHORITIES: It is not unusual for standard pattern instructions to tell the jury to continue deliberating while awaiting a response to their request. (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.43 [Jury Deliberations] (West, 6th Ed. 1996); 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 7.6 [Communication With Court] (2000).) However, if the jury's request is prompted by confusion or misunderstanding regarding a charge, or lack of recall as to material evidence, it would impair the reliability of the verdict to permit continued deliberation upon that charge until such confusion, misunderstanding or lack of recall is remedied.

    If the jurors have indicated that they do not understand a jury instruction the court should not accept a verdict until it first clears up the jury’s confusion. (CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.90 [Reinstruction Of The Jury-Note] pp. 175 (Bar Association of the District of Columbia, 4th ed. 1993); see also Potter v. U.S. (DC 1987) 534 A2d 943, 946 [failure to "dispel jury confusion on controlling issue...may have led the jury to fail to give proper consideration to appellant’s account of what transpired"]; Whitaker v. U.S. (DC 1992) 617 A2d 499, 501 [error to fail, upon request of defense counsel, to reinstruct the jury where it was apparent that the jury was confused and about to return inconsistent verdicts irreconcilable with the instructions].)

    Hence, it has been suggested that, at the request of counsel, deliberations may be stopped at counsel's request pending resolution of a jury inquiry. (People v. McCleod (CA 1997) 55 CA4th 1205, 1220 [64 CR2d 545].) Under this rule, counsel should be able to request a modification of the standard instruction to preclude the jury from deliberating and returning a verdict before the inquiry is answered.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5; 7.13].

CAVEAT: If counsel does not request that deliberations be suspended the resulting verdict may be accepted. (See U.S. v. Spagnolo (4th Cir. 1976) 546 F2d 1117, 1119-20 [verdict rendered pending receipt of answer to juror inquiry was not improper under the assumption that the jury concluded it did not need an answer to their inquiry in order to reach a verdict]; U.S. v. Young (2nd Cir. 1998) 140 F3d 453, 456 ["Once the jury announced its readiness to return a verdict, it was up to defense counsel to decide whether to accede to having the verdict promptly announced or to request the judge to ask the jurors if they still wished the readback..."].)

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

    Whenever the jury as a whole or any individual juror or jurors has submitted a question to me all deliberations must cease. Do not continue deliberations until I have responded to the question and instructed you to commence deliberations again.

[Source: NCJIC.]

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    See NCJIC 282.3.3 [Alternate Jurors: Should Not Be Present For Proceedings In Response To Juror Inquiries During Deliberations].

RESEARCH NOTES:

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

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RATIONALE: Unless informed by the court, the jurors may be unaware that they can request a read back of testimony.

POINTS AND AUTHORITIES: It is widely accepted that the jury has the right to request a read-back of testimony. (See NCJIC 283.9 [Informing The Jury Of The Right To Request A Readback Of Testimony].) Moreover, the defendant’s federal constitutional rights to trial by jury and due process would also be abridged by curtailing the jury’s ability to clear up misunderstandings, discrepancies and lack of recollection of the testimony. (See NCJIC 284.2.3 [Improper To Discourage Jurors From Requesting Readback Of Testimony Or To Otherwise Mislead Them As To The Availability Of Testimony About Which The Jurors Have A Question].) Accordingly, notwithstanding the reality that failure to inform the jury of its right to request a read-back will result in less requests and quicker trials, overriding importance of the defendant’s federal constitutional rights which are at stake in the trial make it appropriate to assure that the jury understands its ability to obtain a readback of testimony about which there is a misunderstanding, discrepancy or lack of recollection.  The judge should not discourage the jurors from exercising their right to request a readback of testimony or influence the jury to rescind its request. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:18 [Charging The Jury-Jurors’ Request For Further Instructions] (West, 1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.2; 7.1].

PRACTICE NOTE: While the judge may choose to summarize the testimony in lieu of having it read, the far better practice is to have the testimony readback by the reporter. (Se Kohloff v. State (WI 1978) 270 NW2d 63, 69.)

NOTE: There may be an issue as to whether all jurors must agree before submitting a request to the court. (See NCJIC 16.2.4.3 [Any Juror May Communicate With The Court At Any Time]; see also NCJIC 283.5 [Any Juror May Communicate With The Court At Any Time].)

RESEARCH NOTES:

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

Annotation, Right To Have Reporter's Notes Read To Jury, 50 ALR2d 176 supp sec. 2.

See also Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

     At any time during your deliberations you have the right to request that testimony be read back to you.

[See CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 3.41, [Jury Taking Notes] ¶ 2 (New York Office of Court Administration, 1983).]

    If your recollection of any part of the testimony should fail, you may request that the testimony be read to you.

[Source: NCJIC.]

    You will not have a copy of the written transcript of the trial testimony available for use during your deliberations. However, you may ask to have specific portions of the testimony read back to you.

[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 58 [Transcripts Not Available For Deliberations; Reading Back Testimony] (University of Wisconsin Law School, 2000).]

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RATIONALE: Unless informed by the court, the jurors may be unaware that they can request to see the exhibits.

POINTS AND AUTHORITIES: See NCJIC 283.9 [Informing The Jury Of The Right To Request A Readback Of Testimony].

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

NOTE: There may be an issue as to whether all jurors must agree before submitting a request to the court. (See NCJIC 284.2.1 [All Twelve Jurors Need Not Agree To Make Request For Readback Of Testimony].)

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

    At any time during your deliberations you have the right to request to view the exhibits.

[Source: NCJIC.]

    Any time during your deliberations, you have the right to request to return to the courtroom to examine the exhibits or to have the exhibits sent into the juryroom.

[See CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 42.15 [Jury Questions During Deliberations] ¶ 1 (New York Office of Court Administration, 1983).]

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RATIONALE: When the jury asks for evidence that was not admitted at trial there is a danger that the jury may be improperly expanding its discussions and deliberations to matters not included in the evidence presented at trial.

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. It has been suggested that a request for the unadmitted physical or written materials should be denied absent agreement of the parties to grant the request.  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 The Jury] (Lexis, 1999).)

    However, it is conceivable that the jury's request could be so critical that not allowing the defense to reopen would implicate the defendant's federal constitutional rights. (See e.g., NCJIC 300.6.2 [Defense Theory Instruction Required By Due Process, Compulsory Process And Confrontation]; NCJIC 250.1.3 [Constitutional Right To Due Process And A Fair Trial By Jury As Ground For Defense Theory Instruction].)

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

STRATEGY NOTES: If the jury’s request suggests that it is contemplating matters which they cannot consider or matters which the court has directed them to disregard, counsel should be alert to the potential need for inquiry into possible juror misconduct. (See NCJIC 3.4 [Duty To Inquire Into Juror Misconduct]; see also NCJIC 16.7 [Court’s Duty To Inquire Into Juror Misconduct].) The failure to request such inquiry could waive the issue. (See e.g., State v. Cote (ME 1988) 540 A2d 470 [jury requested that defendant himself testify; defense counsel’s agreement 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].)

    Moreover, a jury request for a witness or evidence not presented may bring into issue other instructional matters such as inference from missing witness (see NCJIC 36.2 [Missing Witness]), the defendant's privilege against self incrimination (see NCJIC 18.3 [Failure Of Defendant To Testify]; see e.g., State v. Cote, supra) and the defendant's right to present evidence and put the prosecution to its burden (see NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt]).

    See also NCJIC 283.9 [Informing The Jury Of The Right To Request A Readback Of Testimony].

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

    You may only consider the evidence that was admitted at trial. The evidence does not include _____________ <insert unadmitted evidence>.  You must not consider any such unadmitted matter for any purpose.  Do not speculate about what others might have said or what other materials might show.

[See Alexander, MAINE JURY INSTRUCTIONS MANUAL 8-4 [Instruction: Request for Material Not Before the Jury] (Lexis, 1999).]

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RATIONALE: Without special instruction the jury may not understand its right during deliberations to make requests it deems necessary such as a read-back of testimony, clarification of instructions, etc.

POINTS AND AUTHORITIES: Juror requests for additional materials during deliberations should be seriously considered since the reliability of the verdict could be compromised if the jury does not fully consider all proper and relevant matters in reaching its verdict. However, unless the jurors are aware of its right to request such materials they may not know to make a request even though they need clarification.

    On the other hand, there are important issues associated with many such jury requests. For example, requests for read back raise the danger of undue emphasis of particular testimony and unwarranted consumption of time. (See NCJIC 284.2.2 [Readback Of Testimony: Necessity Of Cautionary Instruction To Avoid Undue Emphasis].) Other requests raise similar or related concerns. (See e.g., NCJIC 276.4.2 [Recordings In Juryroom: No Undue Emphasis].)

    And, as to the arguments of counsel, the matter is even more difficult since the jury's right to such a read back is questionable. (See NCJIC 284.2.4 [Readback: Arguments Of Counsel].)

    In sum, counsel will have to evaluate the competing considerations in deciding whether to request specific instruction on the jury's right to make such requests.

    See also NCJIC 25.2.9 [Avoiding Undue Influence By Waiting To Give Jurors Exhibits Until They Request Them].

    See also NCJIC 25.2.11 [Jury Request For Evidence Not Admitted At Trial].

    See also NCJIC 25.2.12 [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 283.10 [Jury’s Right To Request Exhibits].

    See also NCJIC 285.2.2 [Response To Jury Reinstruction Request Must Be Balanced].

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

USE NOTE: There may be an issue as to whether all jurors must agree before submitting a request to the court. (See NCJIC 284.2.1 [All Twelve Jurors Need Not Agree To Make Request For Readback Of Testimony].)

PRACTICE NOTE: Even more controversial would be an instruction informing the jury that it can request additional evidence such as further testimony, or a view of the scene. Certainly it is within the court's power to grant such a request and, in some circumstances, it could promote the fairness and reliability of the process. (See NCJIC 300.29.1 [Federal Constitutional Rights Implicated By Unreliable Trial Or Conviction].) However, given the fact that most requests to reopen will be denied, it may be distracting and unproductive.

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

See also NCJIC 284.1.20  [Prejudicial Impact Of Readback Denial].

    Should you deem it helpful to do so, you may make the following requests at any time during your deliberations:

    1.  For a written copy of the jury instructions to be sent into the juryroom;

    2.  For the exhibits to be sent into the juryroom;

    3.  For a read back of testimony or arguments of counsel;

    4.  For clarification or amplification of the instructions.

    Should you desire to make any of these requests or should it otherwise become necessary during your deliberations to communicate with the court, you may send a note by a 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 the court by any means other than a signed note; and the court will never communicate with any member of the jury on any subject touching on the merits of the case, otherwise than in writing, or orally in open court.

    You will note from the oath about to be taken by the bailiffs that they too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case. Bear in mind also that you are never to reveal to any person, other than by request of the court, how the jury stands numerically or otherwise as to whether or not guilt has been proven beyond a reasonable doubt until after you have reached a unanimous verdict.

[Source: NCJIC.]

 VOLUME 13 - CHAPTER 283

People of the State of _____________                                No. _____________

v.

____________________________

    The jury hereby requests:

    The following Exhibits:

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

    Written copies of the jury instructions.

    Clarification and/or amplifications of the following instructions:

No. _____ regarding: ___________________________________________________________

No. _____ regarding: ___________________________________________________________

No. _____ regarding: ___________________________________________________________

    Read-back of the following testimony:

____________________________________________________________________________

____________________________________________________________________________

    [Read-back of the prosecution arguments:]

____________________________________________________________________________

____________________________________________________________________________

    [Read-back of the defense arguments:]

____________________________________________________________________________

____________________________________________________________________________

    A physical view of the: Scene of the crime

Other: ___________________________________________________________________________

    Additional testimony on:

___________________________________________________________________________

___________________________________________________________________________

Date: __________ Signed: ____________________________

Time: __________ Print Name: ________________________

See generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See Manual On Recurring Problems In Criminal Trials [11. Communications Between Trial Court And Jury].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.2 A. Communications With A Deliberating Jury: In General].

See generally, NCJIC 283.14 [Communication With Jury: Federal Circuit Model Instructions And Notes].

See also NCJIC 284.1.20 [Prejudicial Impact Of Readback Denial].

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

 VOLUME 13 - CHAPTER 283

    283.14   Communication With Jury: Federal Circuit Model Instructions And Notes 

See 1st Circuit Pattern Jury Instructions - Criminal 6.05.

See also 7th Circuit Federal Jury Instructions - Criminal 7.05.

See also 8th Circuit Model Jury Instructions - Criminal 3.12.

See also 9th Circuit Model Jury Instructions - Criminal 7.6.

See also Federal Judicial Center, Pattern Criminal Jury INSTRUCTIONS  58.