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285.1 Supplemental Instructions: Procedural Issues

    285.1.1 Supplemental Instruction In Response To Jury Inquiry: Instruction Should Be Given Orally Rather Than By Written Response To Jury Inquiry
    285.1.2 Giving Supplemental Instructions In Open Court: Strategic Consideration Of Whether Jury Should See Defendant And His Family Again
    285.1.3 Counsel's Presence During Jury Inquiry: Strategic Considerations
    285.1.4 Supplemental Instructions: Presence Of Counsel
    285.1.5 Supplemental Instructions: Presence Of Counsel And Defendant
    285.1.6 Record of Supplemental Instructions
    285.1.7 Record of Supplemental Instruction Proceedings And Instructions Given To The Jury
    285.1.8 Right To Additional Summation Or Argument To The Jury After Supplemental Instructions
    285.1.9 Supplemental Instructions: Whether Deliberations Should Be Suspended
    285.1.10 Supplemental Instructions: Federal Circuit Model Instructions And Notes

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

    See also NCJIC 283.2 Communication Between Jury And Trial Judge: Procedure].

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions 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 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

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

See generally, NCJIC 285.1.10 [Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The defendant has a right to a full, open court response to juror inquiries or when supplemental instructions are otherwise given to the jury. (See NCJIC 276.4.3 [Recordings: Replaying Should Be Done In Open Court]; see also NCJIC 284.1.5 [Readback: Should Be Conducted In Open Court And In The Presence Of Counsel And Defendant]; see also NCJIC 285.1.1 [Supplemental Instruction In Response To Jury Inquiry: Instruction Should Be Given Orally Rather Than By Written Response To Jury Inquiry].)

    In these situations counsel may wish to consider whether or not it would be beneficial for the jurors to once again see the defendant and his family. The factors affecting this decision will, of course, vary according to the case, but it is a matter worth considering. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 4:1, p. 4-1.)

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions 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 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

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

See generally, NCJIC 285.1.10 [Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

 VOLUME 13 - CHAPTER 285

PRACTICE NOTE: The defendant and counsel have an absolute right to be present during jury inquiries and supplemental instruction proceedings. (See NCJIC 2.6.3 [Presence Of Defendant: Supplemental Instructions]; see also NCJIC 2.7.2 [Presence Of Counsel During Supplemental Instructions]; see also NCJIC 285.1.5 [Supplemental Instuctions: Presence Of Counsel And Defendant].) As a tactical matter counsel should never waive the right to input regarding jury inquiries because the response to such inquiries can be critical.

    Inquiries from the jury may provide clues as to the division among the jurors and the issues that are giving them trouble. Therefore, it is important for counsel to be present to factor such information into the strategic decision on whether to ask for, agree to, or resist a declaration of a mistrial should the jury become deadlocked. (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[8].) Moreover, counsel will want to evaluate any juror request for instruction clarification or read-back of testimony to assure that no undue emphasis is given to the instructions or evidence. (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[8].)

    See also NCJIC 284.2.2 [Readback Of Testimony: Necessity Of Cautionary Instruction To Avoid Undue Emphasis].

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

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions 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 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

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

See generally, NCJIC 285.1.10 [Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

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

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions 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 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

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

See generally, NCJIC 285.1.10 [Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

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    See NCJIC 2.6.3 [Presence Of Defendant: Supplemental Instructions].

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

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions 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 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

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

See generally, NCJIC 285.1.10 [Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

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    See NCJIC 285.1.7 [Record Of Supplemental Instruction Proceedings And Instructions Given To The Jury].

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PRACTICE NOTE: Just as the trial court is required to make a record of the original instructions given to the jury before it retires to deliberate, so too is the court required to make a record of any supplemental instruction proceedings and supplemental instructions given to the jury during deliberations. (See e.g., People v. Woppner (CA 1859) 14 C 437, 437-38; People v. Mack (CA 1931) 115 CA 588, 591 [2 P2d 209]; Thames v. Commonwealth (MA 1974) 312 NE2d 569, 570 [where possible, any messages or questions from jury to judge in criminal proceeding should be shown to counsel and immediately placed on record, and any reply thereto should also be placed on record in presence of counsel, if available].)

    The lack of any record indicating any action taken in response to a jury inquiry regarding the instructions prohibits the Court of Appeal from assuming the proceedings were conducted in accordance with the law and may require reversal. (See People v. Gonzales UNPUBLISHED (CA 1993, A057064).)

    On the other hand, it is the party's duty to assure that any objections to the supplemental instructions are on the record. (See e.g., Steinberg v. Jensen (WI 1996) 553 NW2d 820, 823 [off-the-record objection to supplemental instructions failed to preserve objection for review].)

    See also NCJIC 2.5.3 [Proceedings As To Supplemental Instruction Should Be On The Record].

OPINION AVAILABLE: To read the Gonzales opinion, click here. [Opinion Bank # O-176].

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions 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 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

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

See generally, NCJIC 285.1.10 [Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: If supplemental instructions deal with a subject which was not adequately covered in counsel's closing argument, counsel must be given the opportunity to reopen the argument to discuss the new subject. (U.S. v. Gaskins (9th Cir. 1988) 849 F2d 454, 458-460; see also Annotation, Right Of Accused To Additional Argument On Matters Covered By Amended Or Additional Instructions, 15 ALR2d 490.)

    See also NCJIC 2.3.1.6 [New Or Additional Instructions After Argument].

    See also NCJIC 285.4.2 [Supplemental Instructions: New Charges Or Theories].

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions 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 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

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

See generally, NCJIC 285.1.10 [Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

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

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions 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 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

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

See generally, NCJIC 285.1.10 [Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

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    285.1.10    Supplemental Instructions:  Federal Circuit Model Instructions And Notes

See 6th Circuit Pattern Jury Instructions - Criminal 9.01.

See also 8th Circuit Model Jury Instructions - Criminal 6.18.

See also 8th Circuit Model Jury Instructions - Criminal 10.00.

See also 8th Circuit Model Jury Instructions - Criminal 10.01.