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285.3 Supplemental Instructions: Jury Inquiry And Instructional Issues

    285.3.1 Jury Questions: Duty To Clarify Ambiguous Inquiry
    285.3.2 Jury Inquiry: Duty To Eliminate Juror Confusion
    285.3.3 Jury Inquiry: Readback Of Prior Instructions May Not Be Sufficient
    285.3.4 Withdrawal Of Confusing Instruction In Response To Jury Inquiry
    285.3.5 Supplemental Instructions: Must Be Given By The Judge
    285.3.6 Supplemental Instruction: Use Of Hypotheticals
    285.3.7 Juror Inquiry During Deliberations/Supplemental Instructions: Error To Read Back Testimony In Response To Juror Question About Evidence
    285.3.8 Playback Of Tape Recorded Instruction In Response To Jury Inquiry
    285.3.9 Judge's Duty To Instruct Not Dependent On Jury's Confusion
    285.3.10 Supplemental Instruction May Properly Expand Original Instructions

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PRACTICE NOTE: When the jury's request for reinstruction is unclear, the court should inquire further to determine what additional information is required. (See People v. Thompkins (CA 1987) 195 CA3d 244, 250 [240 CR 516]; see also Davis v. Greer (7th Cir. 1982) 675 F2d 141, 145 [trial court must exercise its sound discretion in determining what type of supplementary instructions should be given to a deliberating jury that seeks clarification of the law]; Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 157; U.S. v. Walker (10th Cir. 1977) 557 F2d 741, 746; People v. Beardslee (CA 1991) 53 C3d 68, 97 [279 CR 276].)

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

    See also NCJIC 4.3.3.4 [Duty To Make Record Of Instruction Discussions].

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: Jurors are entitled to have their questions answered, and "the trial court has a duty to provide instruction to the jury where it has posed an explicit question or requested clarification on a point of law arising from facts about which there is doubt or confusion. [Citation]." (People v. Childs (IL 1994) 636 NE2d 534, 539; see also People v. Beardslee (CA 1991) 53 C3d 68, 96-97 [279 CR 276]; People v. Gonzalez (CA 1990) 51 C3d 1179, 1212 [275 CR 729]; People v. Rincon-Pineda (CA 1975) 14 C3d 864, 885 [123 CR 119]; ABA Standards, Std. 15.43(a).) Furthermore, a long line of federal cases also recognize the duty of the trial court to clear up any juror confusion regarding the instructions. "Upon receipt of questions from a deliberating jury, it is incumbent upon the district court to assume that at least some jurors are harboring confusion, which the original instructions either created or failed to clarify. Therefore, the trial judge must be meticulous in preparing supplemental instructions, taking pains adequately to explain the point that obviously is troubling the jury." (U.S. v. Combs (6th Cir. 1994) 33 F3d 667, 670.)

    While commonly understood terms need not be defined for the jury, if the jury expresses a lack of such "common understanding," the court's underlying obligation to assure that the jury understands its duties may require that the term be further defined. (See NCJIC 5.2.4 [When Jury Expresses Lack Of Understanding Of Term With A Common Meaning]; see also People v. Kirkpatrick (CA 1994) 7 C4th 988, 1017-18 [30 CR2d 818], Mosk, concurring.)

BRIEFING AVAILABLE: For "Sample Briefing On Court's Duty To Respond To Juror Inquiry," click here. [Brief Bank # B-909.]

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 the inquiry indicates that the jury did not understand the original instructions given before deliberations began, simply reading those same instructions over again may not be sufficient to eliminate the jury's confusion. (See McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839; Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 158; U.S. v. Bolden (DC Cir. 1975) 514 F2d 1301, 1308-09; People v. Thompkins (CA 1987) 195 CA3d 244, 253 [240 CR 516]; Estate of Mann (CA 1986) 184 CA3d 593, 614 [229 CR 225].) "...[S]imply repeating instructions already given after the jury admits the need for further explanation does not satisfy the judge’s responsibility to dispel confusion. [Citation.]" (Cissell, Federal Criminal Trials (Lexis, 5th Ed. 1999) § 12-6(e), p. 295.) In responding to a juror inquiry and request for further instruction, the trial judge must attempt to clear up the jury’s confusion or misunderstanding. (See U.S. v. Sanfilippo (5th Cir. 1978) 581 F2d 1152, 1155; see also U.S. v. Warren (9th Cir. 1993) 984 F2d 325, 330 [insufficient to refer jury to initial instruction which did not specifically answer their question].)

    In responding to jury inquiries the trial judge must give meaningful supplemental instructions. (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).) Answering the jury’s question in the same words as those given in the other instructions, and thus adding nothing to the jury’s understanding of the instructions, is improper. (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).) The jury is entitled to the guidance of the court and may not be relegated to its own unfettered course of procedure. (Ibid.) Where the jury pinpoints its lack of understanding, it is entitled to "something more than that which led to their original confusion." (Ibid.) Accordingly, even if the supplemental response is technically correct, if it does not address itself directly to the jury’s question, it is insufficient. (Ibid.)

    McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 838 reaffirmed the view that a simple readback of prior instructions may not be sufficient when the jury has indicated that it was confused by those instructions. The 9th Circuit invalidated the conviction because "the trial judge did not identify the exact problem confounding the eleven jurors. He simply referred the jurors to the original instructions defining mitigating circumstances. The jurors had these instructions with them all along. Both sides agree the instructions were technically flawless. They were, however, the same instructions that for some unknown reason eleven of the jurors did not correctly understand in the first place. Under these circumstances, we agree with Justice Broussard of the California Supreme Court: 'There is no point in reiterating language which has failed to enlighten the jury.' [Citation.]" (McDowell v. Calderon, 130 F3d at 838.) "The unremarkable prescription for [juror] confusion is that '[w]hen a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.' [Citation.]" (Id. at 839.) As the Seventh Circuit has said, Bollenbach v. U.S. (1946) 326 US 607 [66 SCt 402; 90 LEd 350] places on the trial judge 'a duty to respond to the jury's request with sufficient specificity to clarify the jury's problem.' [Citation.] This duty exists, among other reasons, because 'in a trial by jury... the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.' [Citation.]" (See also Davis v. Greer (7th Cir. 1982) 675 F2d 141, 145; McDowell v. Calderon, 130 F3d at 839; People v. Thompkins (CA 1987) 195 CA3d 244, 256 [240 CR 516].)

    "It is not always sufficient for a judge to simply open a charge book and read a generic statement of the law to a jury, no matter how correct that statement may be in the abstract. This is particularly true where, as here, the judge is called upon to answer a well-framed question following the initial charge. Quite often, the judge must tailor, mold and even sculpt the law in fashioning an answer to fit the question. In this respect, the judge must be an artist, not a mere technician." (State v. Smith (SC 1991) 402 SE2d 162, 164.)

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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RATIONALE: If a confusing instruction is withdrawn the jury may still be confused and may improperly continue to consider the withdrawn instruction without specific instruction to completely disregard the withdrawn instruction.

POINTS AND AUTHORITIES: If the jury indicates that it is confused by an instruction, one option is to withdraw the confusing instruction. (See e.g., U.S. v. Collum (9th Cir. 1979) 614 F2d 624, 632; see also People v. Nelson DEPUBLISHED (CA 1997) 58 CA4th 193 [67 CR2d 899].) However, if the instruction is withdrawn, the judge should reread the remaining relevant instructions and conduct voir dire to make sure the jurors do not consider the withdrawn instruction and are no longer confused about the governing law. (See e.g., State v. O'Keefe (HI 1961) 367 P2d 91, 93 [court may correct erroneous instruction by withdrawal and admonition that the withdrawal is absolute].)

    Where corrective instructions are given (that is where the original instruction was erroneous on a particular point), the court should stress that the jury should completely disregard the erroneous instructions previously given and should be guided solely by the new instructions on that point. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:17 [Charging The Jury-Supplement Instructions Prior To Deliberations] (West, 1999).) In order to obviate an erroneous instruction, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by the error. (Id. at § 2:25.)

    Additionally, counsel should be offered the option of reopening argument. (Nelson, 58 CA4th at 199.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.10].

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].

    The following instruction, Number _____, is withdrawn:

    [Repeat withdrawn instruction or describe title].

    The withdrawal of this instruction is complete and absolute. You must not consider this instruction for any purpose. Instead, you must be governed entirely by the following instructions:

    [Recite all instructions relevant to the issue including any new or revised ones.]

[Source: NCJIC.]

    Instruction No. _____ that I previously gave you is withdrawn.  Do not consider it for any purpose. As a substitute for Instruction No. _____, you will be governed in your deliberations by the following instruction: [text of new instruction]

    Consider this substitute instruction, and all other instructions, together as the instructions of the court.  Do not to attach any undue importance to the fact that this instruction was read separately.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.68.01 [Changed Instruction Of Law] (West, 2nd ed. 1994).]

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PRACTICE NOTE: When instructing in response to juror questions during deliberations the duty to instruct may not be delegated by the judge to anyone else. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:05 [Charging The Jury–Presence Of Counsel And Defendant] (West, 1999).) To do so deprives the defendant of the right to trial by jury, an integral part of which is the supervision of a judge. It has been held that this right may be waived but only if it is done in writing in open court. (See People v. Ahmed (NY 1985) 487 NE2d 894, 895 [trial judge suffering from very bad sore throat and cold]; see also Riley v. Deeds (9th Cir. 1995) 56 F3d 1117, 1121 [judge allowed clerk to readback testimony at jury's request]; Lundebrek v. Willmar (MN 1985) 361 NW2d 885, 887; State v. Hogan (NJ 1945) 42 A2d 562, 563; People v. Galdamez (NY 1996) 652 NYS2d 65, 66.)

    See also NCJIC 300.24 [Right To Presence Of Trial Judge].

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: Where the jury requests instructions in "laymen's language," a response using hypotheticals is proper if the trial judge distinguishes the "laymen's language" used in the examples from legal principles in the instruction and emphasizes that the hypotheticals are being used for purposes of illustration only.  (Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-6(e), pp. 295, 318.)

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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    285.3.7    Juror Inquiry During Deliberations/Supplemental Instructions: Error To Read Back Testimony In Response To Juror Question About Evidence

    See NCJIC 284.1.10 [Court Should Not Read Back Testimony In Response To Jury Question].

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 a tape recording of a jury instruction is sent to the jury in response to its inquiry several problems may arise. The problems include: 1) the recording may contain suggestive voice inflections of the judge; 2) the jury may listen to particular instructions in isolation; 3) it constitutes an unsupervised and unreviewable use of an electronic device by the jury. (See Wagner v. State (WI 1977) 250 NW2d 331, 342; see also BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[8].)

    In recognition of these problems the Wagner court concluded that "the better practice is to call the jury back into the courtroom if a replay of the taped instructions, or a portion thereof, is requested. One reason is that this will provide a record of what specific use was made of the tape recordings." (Wagner, 350 NW2d at 342.)

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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    285.3.9    Judge's Duty To Instruct Not Dependent On Jury's Confusion

    See NCJIC 3.2.17 [Judge's Obligation To Instruct Not Dependent On Jury's Confusion].

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    285.3.10    Supplemental Instruction May Properly Expand Original Instructions

PRACTICE NOTE: See United States v. Si (9th Cir. 2002) 343 F3d 1116, 1125-26 [supplemental instruction given in response to jury's question did not eliminate mens rea requirement of conspiracy where original instruction included the requirement, and the supplemental instruction only expanded, but did not conflict or supercede the original instruction].

RESEARCH NOTES:

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