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284.1 Procedural Issues

    284.1.1 Readback Policy Should Be Decided Before Trial
    284.1.2 Readback Of Testimony: Deciding Whether To Grant Readback Request
    284.1.3 Blanket Preclusion of Readback Improper
    284.1.4 Readback Of Testimony: Presence Of Judge
    284.1.5 Readback: Should Be Conducted In Open Court And In The Presence Of Counsel And Defendant
    284.1.6 Can Presence Of Defendant And Counsel At Readback Be Waived By Capital Defendant?
    284.1.7 Readback Of Testimony: Initiated By Court Sua Sponte
    284.1.8 Readback Request: Importance Of Reviewing Testimony Which Jury Did Not Request Before Complying
    284.1.9 Jury's Request For Exhibits Or Materials Not Admitted Into Evidence
    284.1.10 Court Should Not Read Back Testimony In Response To Jury Question
    284.1.11 Readback of Testimony: Whether Jury Should Be Given Transcript
    284.1.12 Readback: Where Readback Helps Some Codefendants And Harms Others (Multiple)
    284.1.13 Summary Of Evidence In Lieu Of Readback
    284.1.14 Readback Should Include Both Direct And Cross-Examination
    284.1.15 Denial Of Readback Proper Where Testimony Taken Out Of Context Would Give Too Much Stress To A Particular Point
    284.1.16 Readback: Replaying Of Video Or Audio Tapes
    284.1.17 Replaying Of Video Tape As Prejudicial
    284.1.18 Readback After Jury Announces Deadlock
    284.1.19 Request For Transcript Should Be Considered Request For Readback
    284.1.20 Prejudicial Impact Of Readback Denial
    284.1.21 Readback Of Testimony: Federal Circuit Model Instructions And Notes
    284.1.22 Whether Readback Is A Critical Stage Of The Trial

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PRACTICE NOTE: Readback policy should be decided prior to trial so a preliminary instruction can be given informing the jury as to the rules relating to readback. Such a preliminary instruction is necessary so that the jurors will have advance notice as to the necessity and importance of notetaking.

On the other hand, it will not be possible to provide categorical advance notice regarding the availability of a readback because the question of whether or not to agree to a readback request will depends on the circumstances of the request and counsel's evaluation of the benefits and drawbacks of a particular readback. (See generally NCJIC 284.1.2 [Readback Of Testimony: Deciding Whether To Grant Readback Request].)

One approach is to inform the jurors that they will not be given written transcripts of the testimony without expressly stating that any transcript or readback request will be denied:

    At the end of the trial you must make your decision based on what you remember of the evidence. You will not have a written transcript of the testimony to review. You must pay close attention to the testimony as it is given.

[MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006 [1.05 Note Taking by Jurors, Option 1, Paragraph 1].]

    At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it may not be practical for the court reporter to read [play]* back lengthy testimony. You must pay close attention to the testimony as it is given.

* Use the word "play" if electronic recording system is used and testimony will be "played" back rather than read back to the jury.

[8TH CIRCUIT MODEL INSTRUCTIONS 2006 [1.06 No Transcript Available [Note-taking], Paragraph. 1].]

    You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for use in reaching your decision in this case.

[PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988 [3 Note Taking by Jurors].]

    At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript of the trial. I urge you to pay close attention to the testimony as it is given.

[9TH CIRCUIT MODEL INSTRUCTIONS 2000 [1.10 No Transcript Available to Jury.]*]

*Committee Comment

Another approach is to more expressly address the issue by informing the jurors that a readback request may be made but it will not necessarily be granted.

    At the end of the trial, and during your deliberations, you will not have a written transcript of the testimony to consult. You will have the opportunity to request a readback of testimony about which you have a question, but it will be difficult and time consuming for the reporter to readback large portions of the trial. Therefore, you should pay careful attention to the testimony as you hear it and take such notes as you desire without interfering with your ability to pay close attention to the testimony.

    After all the testimony has been given there is no longer a danger that informing the jurors about the availability of a readback or written transcript will impact their attentiveness to the testimony. Thus, it is not uncommon to expressly address the issue in the final instructions prior to commencement of deliberations:

    If, during deliberations, any of you have a question about any part of the testimony or desire information upon any point of law in the case, you may send out a note making this request.

[See MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG § 3.08 [Jury May Return For Information] (West, 4th ed. 1999)].]

    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 283.12 [Explanatory Instruction As To Jury's Right To Written Instructions, Exhibits, Readback Of Testimony, Etc.].]

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Typically, the decision of whether to grant a request for readback need not be granted absolutely and is in the discretion of the court. (See e.g., People v. Smith (NY 1996) 637 NYS2d 279, 282; see also Robison v. State (TX 1994) 888 SW2d 473, 480-81 [the broad discretion afforded the trial court in responding to readback notes is also recognized by other state courts]; People v. Carr (IL 1977) 368 NE2d 128, 133; U.S. v. Akitoye (1st Cir. 1991) 923 F2d 221, 226.) The court may, in its discretion, grant the readback request, modify the request to either limit or expand the amount of testimony readback, or, in certain appropriate circumstances, and for reasons stated on the record, deny the readback. (See e.g., Alexander, MAINE JURY INSTRUCTIONS MANUAL 8-2 [Readback of Evidence] (Lexis, 1999).) For example, in State v. Herbert (ME 1983) 455 A2d 925, 930-31 the following factors were set forth as relevant to the course of termination of a readback request: "(1) the length of the trial; (2) the complexity of the issues; (3) the number of witnesses; (4) the amount of testimony requested to be readback; (5) the amount of other testimony that in fairness to all parties should be readback with the requested readback; (6) the importance of the requested testimony; (7) the inconvenience and loss of time to the court that may result."

    The trial court should bear in mind that the preferable practice when the jury desires refreshment of memory is to grant the jury the right to have the readback of testimony in open court. (Ibid.) Hence, the trial judge normally has discretion in responding to readback requests by the jury.

    Similarly, another court identified the following factors as relevant:

    "The length of the requested readback is clearly a factor which must be considered. How recently the testimony was previously readback to the jury is another factor the court must take into account. The specificity of the readback request, the number of times the testimony has already been readback, and the amount of time the jury has had to digest and discuss the readback also appear to be relevant considerations. Finally, of course, the court must consider the positions of counsel prior to responding to any jury note."

(People v. Smith (NY 1996) 637 NYS2d 279, 283.)

    Hence, it has been held that the trial court may refuse a request for a readback for reasons such as the following: that the trial had been brief so that the testimony was fresh in the minds of the jurors; there existed the risk of confusion and boredom if rereading was permitted; the requested testimony was too "scattered"; the testimony should not be taken out of the context; "culling the testimony would, in effect, make the court a finder of fact." (See U.S. v. Aubin (1st Cir. 1992) 961 F2d 980, 983.)

    However, a categorical denial of a readback request may be subject to challenge. In some jurisdictions a readback may be required by statute (see e.g., State v. Myers (KS 1994) 872 P2d 236, 237) or as an inherent right of the jury. (See e.g., People v. Butler (CA 1975) 47 CA3d 273, 283 [120 CR 647]; State v. Redford (KS 1988) 750 P2d 1013, 1020; Willard v. State (WI 1928) 217 NW 651, 653.) Additionally, where a readback of important testimony is denied over objection by the defense, the defendant's federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) may be implicated. (See generally NCJIC 283.9 [Informing The Jury Of The Right To Request A Readback Of Testimony].)

    Hence, "[w]here a close judgment call is required, a justice should err on the side of responding favorably to a reasonable jury request... The convenience of the court should not be pursued at the cost of keeping the jurors confused." (State v. Herbert (ME 1983) 455 A2d 925, 931; see also U.S. v. Escotto (2nd Cir. 1997) 121 F3d 81, 83 [there is a clear preference for readbacks of testimony whenever they are requested by deliberating jury]; State v. Sutkus (ME 1935) 182 A 15, 16 [there is a clear preference for readbacks of testimony in place of providing written statements to jury]; State v. Richardson (NJ 1986) 506 A2d 43, 47 ["the decision of whether to grant a jury’s request for a readback of testimony rests within the sound discretion of the trial judge. However, such a request should be freely granted absent some unusual circumstance"]; State v. Sciarra (RI 1982) 448 A2d 1215, 1220 ["trial justice should have at least inquired of the jury whether or not they wanted (a readback of the testimony)"].)

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Because it would be an abuse of discretion to categorically refuse to consider a jury’s request to readback important testimony (see MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 3.08, comment [Jury May Return For Information] (West, 4th ed. 1999)), it would also be an abuse of discretion to instruct the jury that no testimony will be readback. (Ibid.; see also U.S. v. Criollo (2nd Cir. 1992) 962 F2d 241, 244 [trial court erred in announcing prohibition against readbacks of testimony prior to jury deliberations where court had no way of determining whether jury wanted readback of testimony because jury was chilled from doing so by court’s prohibition against readbacks]; People v. Fisher (IL 1996) 667 NE2d 142, 149 [error to instruct jury that any request for transcript of testimony would not be honored, since trial court must exercise its discretion at the time the request is made and may not preempt request with a blanket admonition]; State v. Spaulding (MN 1980) 296 NW2d 870, 877-78; State v. Johnson (NC 1997) 484 SE2d 372, 377 [reversible error for court to suggest to jury that it had no discretion to consider request for readback]; People v. Faulkner (NY 1993) 600 NYS2d 231, 232 [conviction reversed where court improperly denied jury request for readback].)

    See also 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].

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: A judge’s absence from the courtroom during a readback of testimony, even with the consent of the parties, is improper.  Such absence violates the judge's duty to supervise the proceedings. (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 supplement); see also People v. Rawlings (NY 1991) 577 NYS2d 493, 494.) A trial judge's absence during readback despite nonexistence of knowing and intelligent waiver of judge's presence by defendant is considered fundamental error and is per se reversible. (Ferrer v. Manning (FL 1996) 682 So2d 659, 660; see also Riley v. Deeds (9th Cir. 1995) 56 F3d 1117, 1121; Bryant v. State (FL 1995) 656 So2d 426, 428-29; People v. Lumpkin (NY 1991) 570 NYS2d 620, 622-23 [trial judge's absence from courtroom during reading back of testimony, even with consent of both parties, was improper].)

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: A readback of testimony is a crucial stage of the trial during which both the defendant and counsel should be present. (See e.g., U.S. v. Brown (9th Cir. 1987) 832 F2d 128, 130 [replaying tape for jury in absence of defendant, defense counsel and judge was reversible error]; see also NCJIC 284.1.4 [Readback Of Testimony: Presence Of Judge].)

    Moreover, the federal constitutional right to a public trial requires that the readback be conducted in open court. (See e.g., People v. Colon (NY 1989) 547 NYS2d 11, 16 ["best practice is for [t]rial [c]ourts to direct a readback in the courtroom, in the presence of defendant and counsel"]; see also State v. Herbert (ME 1983) 455 A2d 925, 930-31.)

    See NCJIC 2.7.1 [Presence Of Counsel During Instruction Proceedings].

    See NCJIC 2.7.2 [Presence Of Counsel During Supplemental Instructions].

    See NCJIC 285.1.3 [Counsel's Presence During Jury Inquiry: Strategic Considerations].

    See NCJIC 285.1.4 [Supplemental Instructions: Presence Of Counsel].

    See NCJIC 285.1.5 [Supplemental Instructions: Presence Of Counsel And Defendant].

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

See also A Manual On Jury Trial Procedures [1.6 G. Presence Of Defendant (Criminal): Readbacks During Deliberations].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: It has been held that a capital defendant is incapable of waiving the right to be present at every stage of the trial. (See Diaz v. U.S. (1912) 223 US 442, 455 [32 SCt 250; 56 LEd 500]; Bustamante v. Eyeman (9th Cir.1972) 456 F2d 269, 274; but see Campbell v. Wood (9th Cir. 1994)18 F3d 662, 671 [if capital defendant can waive presence by disruptive behavior he or she may waive presence by rational decision].)

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: A judge may sua sponte require the testimony of a witness to be read to the jurors before they retire for deliberation. (Wharton’s Criminal Procedure (West, 13th Ed. 1989) § 482, pp. 126-27; see also Alexander, MAINE JURY INSTRUCTIONS MANUAL 8-2, comment [Readback of Evidence] (Lexis, 1999) [in special cases, court may initiate readback].) However, initiation of a readback of testimony by the trial court on its own motion may unfairly emphasize the readback testimony and imply the court believes that testimony to be credible and important. (Ibid.)

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Before complying with a readback request evidence not requested should be reviewed, in order to comply with the actual request and in order not to give undue prominence to the requested evidence. (Alexander, MAINE JURY INSTRUCTIONS MANUAL 8-2 comment [Readback of Evidence] (Lexis, 1999).) Moreover, in some situations, in the interests of justice, the jury's request should be expanded to include a readback of additional material. (Ibid.) For example, when the jury requests a readback of "direct examination" of a witness  it may be appropriate to authorize a readback of both the direct and cross-examination of the witness to present a broader picture. (Ibid.; see also NCJIC 284.1.14 [Readback Should Include Both Direct And Cross Examination].)

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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    284.1.9    Jury's Request For Exhibits Or Materials Not Admitted Into Evidence

    See NCJIC 276.3.4 [Jury's Request For Exhibits Or Materials Not Admitted Into Evidence].

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PRACTICE NOTE: When the jury asks a question -- as opposed to requesting a readback of testimony -- it is serious error for the court to order the readback of testimony in response to the question. (U.S. v. Rivera-Santiago (1st Cir. 1997) 107 F3d 960, 965-69 [reversible error to readback testimony in response to jury question about the facts]; see also U.S. v. Argentine (1st Cir. 1987) 814 F2d 783, 787 [summarizing testimony in response to jury request for read-back implied that trial judge believed the testimony to be true].)

    For example, the trial judge selected only a part of the testimony of the witness given on direct examination to read in response to the jury’s question. "[I]n so doing [the court] necessarily suggested to the jury that his testimony would provide ‘the’ answer to the jury’s question." This suggestion had the effect of both encouraging the jury to believe [the witness] and discouraging the jury from considering and possibly crediting alternative accounts of the events surrounding the [issue]. Also, "the context in which the trial judge gave his response to the jury’s...question had the effect of placing his imprimatur on the facts contained in that portion of [the witness’] testimony that was read to the jury....[T]he trial judge began by stating ‘I’m going to answer the question now,’ and then had part of [the witness’] testimony read." (U.S. v. Rivera-Santiago, 107 F3d at 966.)

    See also NCJIC 286.1.6 [Deadlock: Offer To Readback Testimony In Response To Juror Deadlock As Improperly Coercive].

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "To avoid the possibility of...undue emphasis, the preferred method of rehearing testimony is in open court, under the supervision of the court, with the defendant and attorneys present. (See U.S. v. Hernandez (9th Cir. 1994) 27 F3d 1403, 1408; see also NCJIC 25.2.5 [Potential Prejudice When Written Statement Offered As Exhibit Favors One Side]; see also NCJIC 276.4.2 [Recordings In Juryroom: No Undue Emphasis].) However, despite the potential for undue emphasis created by allowing the trial transcript or portions thereof in the juryroom, there are circumstances under which it is not an abuse of discretion to allow a jury to review a transcript during deliberation. (See Hernandez, 27 F3d at 1408; see also U.S. v. Escotto (2nd Cir. 1997) 121 F3d 81, 84 [decision to provide jury with transcripts in lieu of requested readbacks is left to trial court's discretion; whether court permits readbacks or sends transcripts, appropriate cautions should be given to jury to minimize particular risks associated with either technique]; but see PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 2.03 [Attention To Proceedings And Testimony] (Pennsylvania Bar Institute, PBI Press, 12/88) [applicable statute precludes jury from having trial transcript].)

    However, if the transcript is given to the jury the court must "take sufficient precautions to avoid undue emphasis." (Hernandez, 27 F3d at 1408.) These precautions include: (1) provide counsel an opportunity to note inaccuracies in a transcript; (2) caution the jury that the transcript is not to serve as a substitute for memory or for assessment of credibility; (3) admonish the jury to weigh all the evidence and not focus on any portion of the trial; and (4) instruct the jury that the transcript is not authoritative and should not prevail over the jurors’ memories.

    The concerns regarding submission of a transcript to the jury in response to a request for a readback of testimony were summarized in U.S. v. Rodgers (6th Cir. 1997) 109 F3d 1138: "This court has recognized ‘two inherent dangers’ in allowing a jury to read a transcript of a witness’s testimony during its deliberations. [Citation.] First, the jury may accord ‘undue emphasis’ to the testimony; second, the jury may apprehend the testimony ‘out of context.’ [Citation.] These dangers are ‘escalated’ if the jury makes the request after reporting an inability to arrive at a verdict. [Citation.]"

    In addition to the ‘inherent dangers,’ there exists more general concerns, including: (1) any transcript provided to the jury should be accurate; (2) transcription of sidebar conferences, and any other matters not meant for jury conception, must be redacted; and (3) as a purely practical matter, a district court ‘should take into consideration the reasonableness of the jury’s request and the difficulty of complying therewith.’ [Citation.] For example, if the jury’s request would require the court to comb the transcript for isolated statements from a number of witnesses, the request may be denied as unreasonable. [Citation.]" (Rodgers, 109 F3d at 1143.)

    "Whenever a district court grants a jury’s request to review some of the testimonial evidence presented at trial, there exists a real danger that the jury will emphasize this evidence over the other evidence. Therefore, we hold that if a district court chooses to give a deliberating jury transcribed testimony, or chooses to reread testimony for a deliberating jury, the district court must give an instruction cautioning the jury on the proper use of that testimony." (Id. at 1144; but see U.S. v. Sheets UNPUBLISHED (9th Cir. 1996) 101 F3d 706 [conviction upheld even though jury allowed to review trial testimony absent cautionary instruction].)

    "The rule we announce today will not place a great burden on the district courts and can serve as an antidote to the natural tendency of a deliberating jury to focus on the testimony it has requested. Of course, a cautionary instruction does not necessarily immunize a district court from error. It is possible in a particular case that the choices made by a judge regarding whose testimony and/or what portions of testimony should be reread may constitute an abuse of discretion, even in the face of such an instruction. But an instruction of the sort announced herein represents the minimum amount of protection a district court should provide if it grants a deliberating jury’s request for testimony." (Rodgers, 109 F3d at 1145; see also U.S. v. Lujan (9th Cir. 1991) 936 F2d 406, 411-12 [jury should be cautioned to rely principally on its memory, to weigh all the evidence in making its decision and not to focus on a single portion of the trial]; Hernandez, 27 F3d at 1409 [jury should have been cautioned to weigh all the evidence and not consider the transcript as authoritative].)

    In sum, "[w]hether a court permits readbacks or sends transcripts, appropriate cautions should be given to the jury to minimize the particular risks associated with either technique. For example, a jury instruction reminding the jury to consider all the evidence without unduly emphasizing any portion of it would be appropriate in most cases where the court sends transcripts into the juryroom." (U.S. v. Escotto (2nd Cir. 1997) 121 F3d 81, 84-85 [no abuse of discretion in the trial court’s decision to provide written transcripts in lieu of readbacks when readbacks were requested by the jury during deliberations].)

NOTE: Escotto, 121 F3d 81 at 84-85, failed to recognize the problem that if written transcripts are submitted to the jury prejudice may result from the manner in which the jury decides to conduct its own readback of the transcripts. (See discussion of similar problems related to submission of written instructions to the jury.) (NCJIC 2.1.3 [Written Instructions As Improper Even If Oral Rendition Is Also Given].)

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

    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 to you.

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

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PRACTICE NOTE: When there is a jury request for readback of testimony in a multi-defendant case there may be an conflict among the defendants as to whether the readback should be granted. For example, in U.S. v. Delgado (11th Cir. 1995) 56 F3d 1357, 1370 the court held that there was no abuse of discretion in denying a jury request to readback portions of the transcript and instead instructing the jury to rely on its collective recollection. This was so because the judge was faced with a situation where some of the codefendants may have benefitted from the readback and others may have been harmed.

    The dilemma in Delgado may provide further support for a severance or dual juries when the interests of the codefendants are divergent. Of course, it cannot be predicted before trial whether the jury will ask for a readback and, if so, what testimony they will ask for. However, in cases where there is a substantial conflict between codefendants, the potential for a readback conflict is an additional factor that should be considered in deciding whether to sever. The availability of a readback of testimony for a jury which does not accurately recall the testimony, is a fundamental component of the defendant’s right to a fair trial. (See NCJIC 283.9 [Informing The Jury Of The Right To Request A Readback Of Testimony].) If such a fundamental right is denied simply because the defendant’s trial was joined with other codefendants who would be harmed by such a readback of testimony, then the failure to sever would be clearly prejudicial.

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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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. (Kohlhoff v. State (WI 1978) 270 NW2d 63, 69; see also State v. Richardson (NJ 1986) 506 A2d 43, 47.) If a summary of the evidence is used instead of a readback "certain requirements must be met." (State v. Dame (RI 1985) 488 A2d 418, 422-23.) First, the summary must be completely accurate. (Pinckney v. U.S. (5th Cir. 1965) 352 F2d 69, 70.) Second, such summarization must avoid in any way an invasion of the province of the jury to determine the facts of the case. (Dame, supra, 488 A2d at 423.)

    Additionally, any summary must include both the direct and cross-examination. (See NCJIC 284.1.14 [Readback Should Include Both Direct And Cross Examination].)

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Cross-examination is guaranteed by the federal constitution. (6th and 14th Amendments; Davis v. Alaska (1974) 415 US 308, 315-16 [94 SCt 1105; 39 LEd2d 347]; Springer v. U.S. (DC 1978) 388 A2d 846, 854.) Accordingly, by supplying the jury with only the direct examination testimony of a witness the trial court may implicate the federal constitutional right to confrontation. "Such a right is seriously diluted in the event that in response to jurors' requests for information regarding testimony, only the direct examination is summarized and the cross-examination is omitted." (State v. Dame (RI 1985) 488 A2d 418, 423; compare Commonwealth v. Mandeville (MA 1982) 436 NE2d 912, 921 [both direct and cross-examination were readback].)

    See also NCJIC 300.26.1 [Denial Of Confrontation Or Cross Examination As Violation Of 6th Amendment].

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: A readback of testimony may not be proper where the testimony may be taken out of context so as to give undue emphasis. (See e.g., Glaze v. State (OK 1977) 565 P2d 710, 714; see also U.S. v. Pimental (1st Cir. 1981) 645 F2d 85, 87 [court properly advised jury to rely on its memory]; U.S. v. Thomas (6th Cir. 1989) 875 F2d 559, 562 [no error in refusing readback of testimony where disputed evidence was potentially prejudicial]; U.S. v. Harris (7th Cir. 1975) 521 F2d 1089, 1093-94 [where jury requested readback of portions of defendant’s testimony, judge did not abuse discretion by reading defendant’s entire testimony]; U.S. v. Binder (9th Cir. 1985) 769 F2d 595, 600 [allowing jury to see and hear video taped testimony second time unduly emphasized such testimony]; People v. Franklin (IL 1990) 552 NE2d 743, 755 [denial of jury’s request to review portions of testimonial transcripts proper where excising portions of testimony would confuse jury and highlight selections of testimony that should not necessarily have been highlighted]; State v. Evans (MT 1993) 862 P2d 417, 420 [granting request for readback would have placed undue emphasis on answers given by one police officer]; State v. Gilliam (NC 1984) 321 SE2d 553, 557 [judge properly denied request for readback and explained to jury that readback would possibly highlight or spotlight particular portion of testimony]; State v. Higgins (OH 1990) 572 NE2d 834, 838 [refusal of request for readback held proper to prevent undue emphasis by jury on requested testimony]; State v. Tarrell (WI 1976) 247 NW2d 696, 703 [trial court did not abuse discretion in directing that victim's entire testimony be read to jury].)

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The question of whether or not to replay audio or video tapes at the request of the jury raises added concerns regarding the undue emphasis of the testimony. "Video taped testimony is unique. It enables the jury to observe the demeanor and to hear the testimony of the witnesses....[In circumstances where credibility is a crucial issue] the video taped testimony may...take[ ] on great significance." (U.S. v. Binder (9th Cir. 1985) 769 F2d 595, 600-01.)

    For example, in Binder, although the prosecution presented other witnesses, permitting the replay "allowed the repetition of the government's case against Binder." (769 F2d at 601.) The same concerns may also apply to audio tapes. (See generally Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 4:2, p. 4-2.)

    On the other hand, some courts have allowed the jury to hear or see tape recordings during deliberations as long as the court and defendant were present. (See e.g., State v. Sims (11th Cir. 1983) 719 F2d 375, 379; see also NCJIC 276.4 [Replaying Recordings During Deliberations].)

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "Videotaped testimony is unique." (U.S. v. Binder (9th Cir. 1985) 769 F2d 595, 600.) Replaying videotaped testimony creates concerns not present when reading written testimony. (U.S. v. Sacco (9th Cir. 1989) 869 F2d 499, 502.) "It enables the jury to observe the demeanor and to hear the testimony of the witness. It serves as the functional equivalent of a live witness." (Binder, 769 F2d at p. 600.) Permitting the replay may in effect allow "the repetition of the government's case against [the defendant]." (Id. at 601.) Hence, the trial court may abuse its discretion by allowing a video tape to be replayed. (Ibid.)

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The danger of undue emphasis and consideration of the testimony out of context is escalated if the readback is ordered after the jury announces that it is deadlocked. (See U.S. v. Rodgers (6th Cir. 1997) 109 F3d 1138, 1143 [jury given transcripts of testimony].)

    See NCJIC 284.1.15 [Denial Of Readback Proper Where Testimony Taken Out Of Context Would Give Too Much Stress To A Particular Point].

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: During deliberations, a jury's request for the actual transcripts should be considered a request for a readback of testimony. Therefore, rather than simply informing the jury that transcripts are not available, the court must respond by informing the jury that the testimony will be read back to the jury upon their request. (See NCJIC 284.1.2 [Readback Of Testimony: Deciding Whether To Grant Readback Request]; see also NCJIC 284.1.3 [Blanket Preclusion Of Readback Improper].)

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See U.S. v. Criollo (2nd Cir.1992) 962 F2d 241, 244 [arbitrary prohibition of readbacks of trial testimony is reversible error because it is impossible to know what effect the prohibition had]; see also Fisher v. Roe (9th Cir. 2001) 263 F3d 906. Where there is no record of the actual readback proceeding, in other words only the reporter and jury were present, the record will not shed any light on what testimony was read back to the jury during deliberations and whether the court reporter unduly emphasized any particular testimony either by failing to read cross-examination or through improper voice inflections. Under these circumstances, the record leaves the reviewing court in a state of "virtual equipoise" as to the prejudicial effect of the error and, therefore, the error requires relief on federal habeas. (Fisher v. Roe (9th Cir. 2001) 263 F3d 906; see also O’Neal v. McAninch (1995) 513 US 432, 435 [1155 SCt 992; 130 LEd2d 947].) Additionally, when the issue is raised on direct appeal as opposed to federal habeas, Chapman v. California (1967) 386 US 18 [87 SCt 824; 17 LEd2d 705], which imposes the burden on the prosecution to establish federal constitutional error is harmless beyond a reasonable doubt, would require reversal when the absence of a record places the reviewing court in a state of "virtual equipoise."

    See also NCJIC 296.2.1.1 [Per Se Reversal Rule Applies To "Structural" Errors And Errors Which Preclude Meaningful Review].

See Manual On Recurring Problems In Criminal Trials [17. Rereading Testimony].

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 [5.1 F. Jury Questions During Deliberation: Requests For Readbacks Of Testimony].

See generally NCJIC 284.1.21 [Readback Of Testimony: Federal Circuit Model Instructions And Notes].

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    284.1.21    Readback Of Testimony: Federal Circuit Model Instructions And Notes 

RELATED FEDERAL MODEL INSTRUCTIONS: 

See 6th Circuit Pattern Jury Instructions - Criminal 9.02.

See also 9th Circuit Model Jury Instructions - Criminal 1.10.

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PRACTICE NOTE: A readback of testimony to a jury is a "critical" stage of a criminal trial to which the Sixth Amendment right to be present attaches. (State v. Brown (NJ 2003) 827 A2d 346.) While noting that courts in California, Michigan and the District of Columbia have decided that a readback is a "sterile even" and that the defendant’s absences does not impinge upon his or her ability to mount a defense, the Brown court subscribed to the "broader view" of courts in Indiana and North Dakota that have held a defendant has a right to be present at any time the jury is required to be present. "Although a readback introduces no new matter into the trial, we have no doubt that it is a part of the trial . . . [t]he readback is obviously critical to the jurors’ deliberations . . . . That the procedure is conducted accurately and fairly is critical to the parties, including the defendant." (Brown, 827 A2d at 352.); see also Bales v. State (Ind. 1981) 418 NE2d 215, 218; Cape v. State (Ind. 1980) 400 NE2d 161, 162-63 ; People v. Harris (NY 1990) 559 NE2d 660; Hill v. State (N.D. 2000) 615 NW2d 135, 139.)