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Improving the Deliberating Process
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40
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WHEN A JURY QUESTION ARISES DURING DELIBERATIONS REGARDING THE EVIDENCE, THE JUDGE SHOULD NOTIFY THE PARTIES OR THEIR COUNSEL OF THE QUESTION. THE JUDGE SHOULD READ THE QUESTION AND SOLICIT COMMENTS REGARDING THE APPROPRIATE RESPONSE. THE RESPONSE AND ANY OBJECTIONS TO IT SHOULD BE MADE A PART OF THE RECORD. THIS PROCESS SHOULD BE MANDATED BY COURT RULE.
THE JUDGE SHOULD, AFTER CONSULTING WITH THE PARTIES OR COUNSEL, RESPOND TO ALL JURY QUESTIONS, EVEN IF THE RESPONSE IS NO MORE THAN A DIRECTIVE TO RELY UPON THEIR MEMORIES OF THE EVIDENCE. THE COURT MAY ALLOW THE JURY TO REVIEW EVIDENCE (E.G., REPLAYING AUDIO OR VIDEO TAPES) IF SUCH REVIEW IS NOT UNFAIRLY PREJUDICIAL TO EITHER PARTY. THE COURT MAY GRANT A JURY’S REQUEST TO REHEAR OR REPLAY TRIAL TESTIMONY, BUT SHOULD DO SO IN A WAY THAT IS LEAST LIKELY TO CONSTITUTE A COMMENT ON THE EVIDENCE AND THAT MINIMIZES THE POSSIBILITY THAT JURORS WILL GIVE UNDUE WEIGHT TO THE SELECTED TESTIMONY.
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Reviewing Evidence
During Deliberations
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Court rules provide that when the jury retires for deliberation, it must take with it the written instructions given, all exhibits received in evidence (except testimonial exhibits such as depositions), and the verdict form(s). However, neither court rules nor the rules of evidence specifically address the jury’s ability to review evidence after deliberations have begun, although exhibits taken to the jury room generally may be used by the jury as it sees fit. In general, the court has discretion to allow an admitted, non-testimonial exhibit to go to the jury room, so long as it is not unduly prejudicial. (See references.)
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Requests from
Jurors to Rehear
or Replay Testimony
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Washington’s case law has not yet addressed whether a trial judge may grant a deliberating jury’s request to rehear or replay particular trial testimony. Concerns sometimes are expressed that granting these requests may be interpreted as an unconstitutional comment on the evidence or that jurors might place undue weight on the selected testimony. The general rule in other states, however, is that trial judges have discretion to grant these requests. This general rule includes cases from states in which judges are prohibited from commenting on the evidence.
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Safeguards When
Allowing Jurors
to Rehear or
Replay Testimony
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The Commission believes jurors should be allowed to rehear or replay testimony as long as appropriate safeguards are in place. Judges should give a cautionary instruction advising jurors to keep in mind all the evidence in the case, not just the testimony being reheard or replayed, and advising that the judge is not making any comment on the value or credibility of the testimony at issue. The testimony should be read or played to the jurors in the courtroom and should not be given to the jurors in written form to take to the jury room. Because of concerns over commenting on the evidence, the judge ordinarily should not select additional testimony for the jury to hear along with the requested testimony.
Although judges now have discretion to allow this practice, the Commission recommends that a court rule be adopted. A more complete protocol should be developed as part of the implementation of this recommendation.
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For a discussion of other issues related to this recommendation, see the accompanying Recommendations 38 and 39.
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References:
CR 51(h); CRLJ 51(h); CrR 6.15(d); CrRLJ 6.15(d).
State v. Castellenos, 132 Wn.2d 94, 935 P.2d 1353 (1997) (trial judges have discretion to allow jurors to take to the jury room nontestimonial exhibits, including tape recordings and playback equipment, but tape recordings involving statements made by a witness who was not subject to cross-examination should not go to the jury room if doing so will violate a defendant’s right to confront witnesses).
State v. Frazier, 99 Wn.2d 180, 661 P.2d 126 (1983).
Washington Constitution, Article IV, Section 16 (prohibiting judges from commenting on the evidence).
Annotation, “Right to Have Reporter’s Notes Read to Jury,” 50 A.L.R.2d 176 (concluding that a “vast majority” of cases, both criminal and civil, allow reporter’s notes to be reread to juries upon request); 75B Am.Jur.2d Trial § 1685. Although some of the states following the majority rule are also states that prohibit judges from commenting on the evidence, no cases could be found that directly analyze whether this prohibition bars a judge from granting a request for testimony to be reheard.
Kalven and Zeisel, The American Jury, 420 (1966) (listing approximately 35 states that prohibit judges from commenting on the evidence, whether by constitution, court rule, statute, or case law).
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