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284.2 Instructional Issues

    284.2.1 All Twelve Jurors Need Not Agree To Make Request For Readback Of Testimony
    284.2.2 Readback Of Testimony: Necessity Of Cautionary Instruction To Avoid Undue Emphasis
    284.2.3 Improper To Discourage Jurors From Requesting Readback Of Testimony Or To Mislead Them As To The Availability Of Readback
    284.2.4 Readback: Arguments of Counsel

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 VOLUME 13 - CHAPTER 284

RATIONALE: Without an explanatory instruction the jurors may improperly assume that all jurors must agree before a request for a readback of testimony may be submitted to the court.

POINTS AND AUTHORITIES: See State v. King (NC 1995) 464 SE2d 288, 293 [statute requiring readback procedure does not mandate that all twelve jurors agree before asking to review certain testimony or evidence].

See also 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].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1; 7.12].

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].

    All jurors need not agree before making a request for a readback of testimony or to review the exhibits.

    [Any individual juror may make such a request at any time.]

[Source: NCJIC.]

 VOLUME 13 - CHAPTER 284

RATIONALE: When testimony is readback to the jury, there may be a tendency for the jurors to place undue emphasis on the individual testimony which was readback and, therefore, the jury should be cautioned to consider the evidence as a whole.

POINTS AND AUTHORITIES: "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...if a district court chooses to give a deliberating jury transcribed testimony, or chooses to reread testimony to a deliberating jury, the...court must give an instruction cautioning the jury on the proper use of that testimony." (U.S. v. Rodgers (6th Cir. 1997) 109 F3d 1138, 1144-45; see also U.S. v. Epley (6th Cir. 1995) 52 F3d 571, 578-79; U.S. v. Sandoval (9th Cir. 1993) 990 F2d 481, 486-87 [no abuse of discretion to allow readback where court cautioned jurors about giving full consideration to entirety of testimony, and offered to have additional portions, or entire testimony, read if jurors requested]; Mullins v. State (AL 1977) 344 So2d 539, 542 [court avoided undue emphasis of testimony]; Evans v. State (GA 1978) 251 SE2d 325, 327 [court cautioned jury that undue emphasis on the reread testimony was improper].) Such an instruction should caution the jury not to give undue emphasis to selected testimony. (See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.02 [Reading Of Testimony] commentary (1991); see also U.S. v. Osterbrock (6th Cir. 1989) 891 F2d 1216, 1219 [affirming defendant’s conviction in part on the ground that such a cautionary instruction was given]; Commonwealth v. Mandeville (MA 1982) 436 NE2d 912, 921 [discretion in reading testimony should be exercised with caution].)

    See also NCJIC 285.2.3 [Admonition That Supplemental Instructions Have No Greater Weight Than Original Instructions].

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

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].

    Keep in mind that you should consider this testimony together with all the other evidence. Do not consider it by itself, out of context, consider all the evidence together as a whole.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.02 [Rereading of Testimony] ¶ 2 (1991).]

    You must weigh all the evidence. You must not give undue credence to any single part of it.

[See U.S. v. Betancourt (6th Cir. 1988) 838 F2d 168, 175.]

    You must not focus only on the particular answers given by this particular witness. You must consider the testimony of all witnesses as a whole.

[See U.S. v. Epley (6th Cir. 1995) 52 F3d 571, 578-79.]

    You have been returned to the courtroom because you requested a readback of testimony.  By allowing this testimony to be read to you I do not intend to emphasize it over any other part of the evidence received during this trial.

[See OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, OJI 415.10 [Additional Instructions on Matters of Law] ¶ 2 (Anderson, 2000).]

    Carefully consider the testimony which is being read back along with all the other evidence. Do not give the testimony undue emphasis simply because it has been read back to you. 

[See Leach v. State (TN 1977) 552 SW2d 407, 408; cf. TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 43.13 [Supplemental Instruction No. ___] (West, 5th ed. 2000).]

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RATIONALE: To instruct the jury so as to discourage or preclude requests for readback of testimony may force the jury to reach a verdict without considering all of the evidence.

POINTS AND AUTHORITIES: There is authority for the proposition that the jury should be permitted to request and receive a readback of testimony about which the jurors have a question. (See NCJIC 283.9 [Informing The Jury Of The Right To Request A Readback Of Testimony].) In fact, it may be argued that the jury should be expressly instructed about this right. (Ibid.) Making such an instruction optional (see e.g., MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG § 3.08 [Jury May Return For Information] (West, 4th ed. 1999) ["...no instruction should be given..."]) is almost as questionable as affirmatively instructing the jury that testimony will not be readback. If the jury is not instructed on the availability of a readback, the jurors would have no reason to assume that such a readback is permissible or even available. The impact of such a belief on the part of the jurors is no different than the adverse impact of affirmatively informing them that no readback will be allowed. In each, the due process of the parties as well as the rights of the jurors are abridged. (Ibid.; see also U.S. v. Criollo (2nd Cir. 1992) 962 F2d 241, 244 [arbitrary prohibition of readbacks of trial testimony reversible error because it is impossible to know what effect the prohibition had]; State v. Spaulding (MN 1988) 296 NW2d 870, 877 [abuse of discretion to instruct that no testimony would be readback].)

    Hence, the practice of discouraging readbacks has been criticized in United States v. Damsky (2nd Cir. 1984) 740 F2d 134, 138; see also Jury Committee of the Ninth Circuit, A MANUAL ON JURY TRIAL PROCEDURES, § 5.1F (2000); 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.10 [No Transcript Available To Jury] (2000).)

    However, some instructions are designed to discourage the jury from requesting a readback of testimony (e.g., former 9th Circuit Manual of Model Jury Instructions, Criminal 1.9 (1993 Rev.) ["A number of judges in this circuit currently use a similar instruction to discourage requests for lengthy readbacks"]). Such an instruction should not be given. 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 State v. Spaulding (MN 1980) 296 NW2d 870, 877-78; (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).) It is error for the judge to discourage the jury from exercising this right and it is reversible error for the trial court to improperly influence the jury to rescind its request for a readback of testimony. (See U.S. v. Criollo (2nd Cir. 1992) 962 F2d 241, 244 [policy of discouraging readback is not "particularly wise"]; see also Criollo at 244 [announcing before jury deliberations began a prohibition against readbacks of testimony not harmless even in a very short trial]; People v. Litteral (CA 1978) 79 CA3d 790, 797-78 [reversible error to refuse request for readback due to illness of reporter]; People v. Smith (MI 1976) 240 NW2d 202, 203 [instruction prior to deliberations that any request for readback of testimony would not be honored constituted prejudicial error]; People v. Hardy (NY 1986) 508 NYS2d 462, 463 [judge erred in denying jury’s request to have testimony of defense witnesses readback]; 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.06 [No Transcript Available Notetaking] (2000).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 7.1].

USE NOTE: If the jury is to be instructed regarding readback availability, it may be advisable not to inform the jury about the right to a readback of testimony prior to the commencement of deliberations. Logically, it could be argued that the jury will pay less attention to the actual testimony if it knows that the testimony will be readback. On the other hand, those jurors who are taking notes may pay more attention to the testimony and less attention to their notetaking if they are aware that a readback of testimony is available. Due to these seemingly inconsistent concerns, it may be that honesty would be the best policy in instructing the jury in this regard.

STRATEGY NOTE:  Because jurors should have the right to submit inquiries to the court on an individual basis (see NCJIC 283.5 [Any Juror May Communicate With The Court At Any Time]) logically individual jurors should be permitted to request a readback of testimony.  Whether or not to inform the jurors of this right by instruction or argument may be a matter of strategy.

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].

    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.

[Source: Adapted from 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.10 [No Transcript Available To Jury] (2000).]

    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).]

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    284.2.4    Readback: Arguments Of Counsel

PRACTICE NOTE: The closing arguments or summations of counsel are not evidence. Therefore, it has been suggested that the court's discretion to grant a jury's readback request should be used "sparingly" with respect to arguments or summations. (See e.g., U.S. v. Arboleda (2nd Cir. 1994) 20 F3d 58, 61; see also People v. Sims (CA 1993) 5 C4th 405, 453 [20 CR2d 537] [same]; People v. Santana (NY 1996) 502 NYS2d 751, 752 [argument of counsel is not evidence and not subject to readback]; People v. Velasco (NY 1991) 570 NE2d 1070, 1072 [refusal of trial judge to allow readback not an abuse of discretion].) This is so because the readback of argument, especially if only one side is read, may over-emphasize the argument in comparison to the jury's own recollection of the evidence. (See e.g., People v. Sullivan (NY 1990) 559 NYS2d 881.) "By rereading only the prosecutor's summation, the court permitted the People an additional opportunity to present their arguments, and their view of the evidence, creating the potential for distracting the jurors from their own recollection of the facts and from the arguments of defense counsel." (Sullivan, at 883.)

    Hence, "[a] jury request for readback of the arguments of counsel may be rejected by the court in the exercise of its discretion if the court determines that the readback would divert the jury's "focus from the evidence introduced and the instructions given." (See e.g., People v. Gordon (CA 1990) 50 C3d 1223, 1260 [270 CR 451]; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:77 [General Instructions-Statements And Opinions Of Counsel And Court-Commentary] (West, 1999) [no readback of opening statements]; see also People v. Turner (NY 1985) 488 NYS2d 271, 272.)

    However, if the jury makes such a request which counsel wishes to have granted it could be argued that the readback is necessary because of the relationship between the argument and the jury's understanding of the instructions. It is an established practice of the reviewing courts to look to the arguments of counsel in evaluating whether or not the jury understood the instructions. (See e.g., People v. Brown (CA 1988) 45 C3d 1247, 1256-57 [248 CR 817]; see also NCJIC 283.9 [Informing The Jury Of The Right To Request A Readback Of Testimony].) This practice of relying upon the arguments to cure instructional errors -- which is of questionable propriety under any circumstances (see NCJIC 297.5.1 [Argument Of Counsel Cannot Substitute For Instruction]) -- is particularly inappropriate when the jury's request for a readback of the arguments was denied.

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].