PG V(I) Record of Instruction Proceedings.
PG V(I)(A) General Rules:
Unreported in-chambers discussions, except in death cases (PC 190.9), are not normally part of the record on appeal. (See People v. Gzikowski (82) 32 C3d 580, 584, fn 2 [186 CR 339].) However, even in death cases the parties may waive the right to have a matter transcribed. (People v. Cummings (93) 4 C4th 1233, 1333, fn 68 [18 CR2d 796].) And, even in the absence of a waiver, the complaining party still bears the burden of demonstrating that the appellate record is not adequate to permit meaningful appellate review. (Ibid.)
Hence, instruction conferences should be reported or thoroughly memorialized on the record afterward. (See Margolin, Preservation of the Record on Appeal, Vol. 21, No. 1, CACJ Forum, pp. 68-69, regarding the necessity of having a reporter present during any in-chambers discussion of jury instructions.) [A copy of this article is available to FORECITE subscribers. Ask for Article Bank # A-34.]
In People v. Morris (91) 53 C3d 152, 210, fn 11 [279 CR 720], the court noted its “disapproval of unreported conferences on matters of substantial controversy in capital cases,” and directed that proceedings in capital cases should be conducted on the record “to remove any conceivable doubt as to what took place and to preclude unnecessary disputes and delays in settling the record for further proceedings. (See PC 190.9.)” (See also, People v. Hawthorne (92) 4 C4th 43, 63 [14 CR2d 133] [the court “cannot urge too strongly that trial judges assiduously preserve a detailed account of all proceedings regardless of their perceived significance, particularly in capital cases, to minimize the need to reconstruct events”].)
Refused instructions must be endorsed by the trial court to show the requesting party and the reason for refusal. (PC 1127, Rules 229, 517.)
PG V(I)(B) Variance Between Reporter’s Transcript And Written Instructions:
PG V(I)(B)(1) Case By Case Analysis.
When there is a variance between the reporter’s transcript and the written instructions, a case by case analysis is used to determine which part of the record is more credible. (People v. Smith (1983) 33 C3d 596, 599; see also People v. Diaz (1989) 208 CA3d 338, 347, dissenting opinion of Brauer, J; see also People v. Marshall (1990) 50 C3d 907, 931, fn. 3 [Supreme Court quotes the instructions as they appear on the written forms and recorded in the Clerk’s Transcript and not the orally delivered instructions recorded in the Reporter’s Transcript, where there is no substantial variation between the two]; People v. Carter (2003) 30 C4th 1166, 1199 [“where the clerk’s and reporter’s transcripts conflict, the latter controls when, under the circumstances, it is the more reliable…”].) When the record is in conflict, it will be harmonized if possible, but if it is not possible to do so, that part of the record which, because of its origin and nature or otherwise, is entitled to greater credence, will prevail. (People v. Thompson (2009) 180 CA4th 974; but see People v. Wilson (2008) 44 C4th 758, 803 [“written instructions . . . control”].)
PG V(I)(B)(2) Insignificant Discrepancies: Presumption That Jurors Followed Written Instructions.
In People v. McLain (1988) 46 CA3d 97, 111, fn 2, the court orally instructed the jury and then sent written instructions into the jury room for use during deliberations. With regard to insignificant discrepancies between the oral and written instructions, the Supreme Court presumed “that the jurors were guided by the written version ….” (Ibid.; see also People v. Wilson (2008) 44 CA4th 758, 803; People v. Prieto (2003) 30 CA4th 226, 255 [“the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions”]; People v. Majors (1998) 18 CA4th 385, 410 [error in oral instruction was harmless in light of correct written instruction given to the jury]; People v. Osband (1996) 13 C4th 622, 687 [misreading of instructions is at most harmless error when the written instructions received by the jury are correct]; People v. Crittenden (1994) 9 CA4th 83, 138 [written instructions control over misspoken oral instructions]; People v. Rodriguez (2000) 77 CA4th 1101, 1112-13 [as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions]; but see People v. Battle (2011) 198 CA4th 50, 69-70 [court of appeal relied on oral instructions to cure ambiguous written instructions].)
PG V(I)(B)(3) Reporter’s Version Not Sacrosanct As To Punctuation And Format.
On matters of punctuation and format, the reporter’s transcript is not sacrosanct. “[W]e are not bound by the punctuation supplied by the court reporter.” (People v. Huggins (2006) 38 C4th 175, 191 (Huggins).) “[W]hen the court orally instructs the jury, the court reporter cannot always capture and report the court’s intended punctuation. Speakers seldom indicate punctuation as they speak, leaving the court reporter with the always difficult, and sometimes impossible, task of supplying punctuation that reflects the speaker’s cadence and inflection. Although we rely upon the court reporter to accurately record the words spoken in court, we are not bound by the court reporter’s interpretation of the speaker’s intended meaning as shown by the punctuation inserted by the reporter.” (Id. at p. 190.)
PG V(I)(B)(4) Substantial Discrepancies: Oral Instructions Should Control.
As discussed in FORECITE PG V(G)(4), it is only through oral instruction that it “can be assured that each member of the jury has actually received all of the instructions.” (State v. Norris (1985) 10 Kan.App.2d 397 [699 P2d 585]; see also State v. Castoreno (1994) 255 Kan. 401, 411-12 [874 P2d 1173, 1180-81]; People of the Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15.) This is so because there is no assurance that all or any of the jurors actually read the written instructions. (Ibid.; see also People v. Anguiano UNPUBLISHED (4/23/2013, F062011) 2013 WL 1736797) [relying on oral instead of written instructions when there was “no indication that [the jury] was aware of the difference between the oral and written versions of CALCRIM 1401 since it did not ask any questions on this point”]; cf. People v. Wilson (2008) 44 CA4th 758, 803-04 [“Written instructions . . . control” but “[i]t is possible the jury followed the oral instruction.”].) Accordingly, if there is a substantive difference between the oral and written instructions, the resolution should logically be made in favor of the oral rendition. (See, e.g., People v. Battle (2011) 198 CA4th 50, 69-70 [court of appeal relied on oral instructions to cure ambiguous written instructions]; People v. Anguiano, supra [relying on oral instruction while assuming jurors were not aware of the written instructions’ variance with the oral instructions]; People v. Wilson (2008) 44 CA4th 758, 803 [“written instructions . . . control”].)
PG V(I)(B)(5) Failure To Orally Instruct On An Individual Written Instruction.
When the court fails to orally instruct the jury upon an instruction which is included in the written instructions submitted to the jury during deliberations, it is not normally possible to determine if the jurors actually read their written copy and, therefore, the reviewing court should assume they did not. (People v. Murillo (1996) 47 CA4th 1104, 1107.)
PG V(I)(B)(6) Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction.
See FORECITE PG X(E)(9).)
PG V(I)(B)(7) Jurors May Follow Oral Instructions: Not Instructed That Written Instructions Control.
“Although appellate courts give priority to the written version of an instruction when a conflict exists between the written and oral versions, the jury is not informed of this rule. It is thus possible the jury followed the oral instruction. Second, there is no indication the jury was aware of the slight difference between the written and oral versions of the instructions, as it asked no questions about this point.” (People v. Wilson (2008) 44 C4th 758, 804.)
PG V(I)(C) Reporter’s Failure To Contemporaneously Record Jury Instructions:
In U.S. v. Steward (9th Cir. 1994) 16 F3d 317, 320, the court reporter did not make a contemporaneous record of the jury instructions, but instead placed a copy of the trial judge’s written instructions in the record and noted in the record that “the instructions were read to the jury and spread upon the record as follows.” The 9th Circuit, while apparently assuming that this was error, required a showing of prejudice. Because defense counsel had the opportunity to object if the judge materially varied from the written text when reading the instructions and did not do so, no prejudice was shown.
PRACTICE NOTE: This case illustrates the importance of both assuring that the instructions are contemporaneously reported and following the oral rendition of the instructions with a copy of the written instructions to assure that no prejudicial variation — whether intentional or unintentional — occurs.
PG V(I)(D)(1) Waiver Of Reporter.
While the defendant in a felony trial has a statutory right to a court reporter (see California Court Reporter’s Assn. v. Judicial Council (1995) 39 CA4th 15, 18), this right may be waived if a reporter is not requested. (See People v. Turner(1998) 67 CA4th 1258.)
PG V(I)(D)(2) Stipulation That Oral Instructions Not Be Reported.
The parties may stipulate that the oral rendition of instructions not be reported. (People v. Garrison (1989) 47 C3d 746, 780-781; but see People v. DeFrance (2008) 167 CA4th 486 [“strongly discourage[ing] the practice of not recording the oral instructions given to the jury”]. )
However, such a stipulation is unlikely to be of benefit to the defendant given the reality that the judge may inadvertently misread the instructions. (E.g., People v. Diaz (1989) 208 CA3d 338, 345-47, Brauer dissent.)
Generally, a defendant’s stipulation not to record a portion of the trial forfeits the claim the record is inadequate for appellate review. (People v. Rogers (2006) 39 C4th 826, 857; People v. Garrison (1989) 47 C3d 746, 780–781 [“In light of counsel’s stipulation and defendant’s failure to suggest that there was any deviation in the reading from the typed copies contained in the record, we find no violation of due process”]; People v. Gaston (1978) 20 C3d 476, 485 [stipulation that no reporter’s transcript of portion of proceedings was needed waived complaint of inadequate record on appeal]; People v. Ladd (1982) 129 CA3d 257, 263 [“By stipulating that the instructions need not be reported, defendant has waived any claim of error on appeal”].)
PG V(I)(E) Reporting By Electronic Recorder Rather Than Court Reporter.
(See People v. Turner (98) 67 CA4th 1258, 1266 [79 CR2d 740] [use of electronic reporting rather than certified court reporter doesn’t violate defendant’s due process rights].)
PG V(I)(F) Record Of Instruction Proceedings: Error In Reporter’s Transcript And No Written Instructions Available.
If there were no written instructions available, any alleged error in the oral record (Reporter’s Transcript) may have to be remedied by settled statement. (See Calif. Rules of Court 7 and 36; see also People v. Coley (97) 52 CA4th 964, 972 [60 CR2d 870] [defendant has right and obligation to attempt to settle record to provide adequate record of error and prejudice].)
PG V(I)(G) Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter.
Objections can cover both substantive matters, e.g., that the instruction represented a misstatement of the law or improperly shifted the burden of proof, and subjective ones, e.g., that the order of instructions or the judge’s intonation gave undue emphasis to certain instructions or conveyed the judge’s personal views. (See, e.g., Butler v. U.S. (CA DC 1951) 188 F2d 24, 25; People v. DeMartine (NY 1923) 199 NYS 426, 432 [defendant denied fair trial by judge’s charge to jury in which he vouched for the reliability and good faith of the prosecutor and certified that the testimony of the witnesses for the People was worthy of credence].)
Counsel should always be alert to situations where a matter which may be important to an issue on appeal will not appear in the reporter’s transcript. For example, matters such as an outburst by non-participant in courtroom, reactions to evidence, demeanor of defendant, indicia of coercion as to deadlock instruction, etc., will not normally be apparent from simply reading the written record. (See generally Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 2012) § 10:2; see also G. Fred Metos, “Making a Record for Appeal,” The Champion (NACDL 5/99) p. 49 [discussing the importance from an appellate perspective of clarifying matters which will not appear in the reporter’s transcript].) Therefore, it may be necessary to specify such matters on the record.
This also holds true if the judge’s intonation gives undue emphasis to certain instructions or conveys the judge’s personal views. (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101.) “Even in jurisdictions in which the judge is permitted to comment on the evidence, there may be limits to the scope and tenor of those comments.” (Ibid.)
If the intonations and gestures of a trial judge are erroneously detrimental to a defendant in a criminal case, it is the duty of counsel to record fully and accurately, at the time and on the record, although not in the hearing of the jury, what has transpired. (See Billeci v. United States (CA DC 1950) 184 F2d 394, 402.) “In such a situation it is as much [counsel’s] duty to make the record as it is his duty to record his objections to the charge, as the rules require, before the jury leaves the room. If the representations then made by counsel are not accurate, the court may say so. But if there is a serious question as to whether the jury may have derived some unintended meaning or have been likely to infer erroneously from the gestures and intonations of the judge, it should emphatically instruct them so as to remove any possible erroneous impression from their minds.” (Ibid.)
RESEARCH NOTES: See also Gestures, Facial Expressions, or Other Nonverbal Communication of Trial Judge in Criminal Case as Ground for Relief, 45 ALR 5th 531.
See also A Manual On Jury Trial Procedures [4.2 A. Record On Instructions: Criminal Cases] (9th Circuit, 2000).