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F 2.004 n1 Checklist Of Procedures Relating To Jury View.
PC 1119 provides: “When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, or any personal property which has been referred to in the evidence and cannot conveniently be brought into the courtroom, it may order the jury to be conducted in a body, in the custody of the sheriff or marshal, as the case may be, to the place, or to the property, which must be shown to them by a person appointed by the court for that purpose; and the officer must be sworn to suffer no person to speak or communicate with the jury, nor to do so himself or herself, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time.”
The following procedures relating to jury views are suggested by the MAINE JURY INSTRUCTIONS MANUAL 4.4 [View] (Lexis, 1999).
1. The view is usually taken after opening statements but before start of the evidence, although there is no rule that would prevent a view being taken at any time before closing argument.
2. Prior to the view, the jury should be instructed not to discuss the case, or the view, or ask questions during the course of the view.
3. The jury should be taken to the view site on a bus provided by the court and supervised by court officers. Private vehicles should not be used to travel to the view site. This would increase the risk of extraneous juror contacts about the case and present complicated questions of responsibility should there be any motor vehicle accident during these travels.
4. Generally, the trial judge must attend the view. If anything is to be said at the view site to point out things to be viewed, the statements should be by the judge or a designated court officer.
5. Counsel for the parties should attend views. They should travel by separate vehicles and are not to communicate with the jury at the view site.
6. The press or other interested members of the public may wish to attend a view. If there is concern about such attendance, the court has limited control options depending on the location of the view site. Court officers would have to be alert to keep jurors separate from others, avoid opportunities for contacts with jurors, and limit other acts that could be prejudicial or interfere with the view.
RESEARCH NOTES: See FORECITE F 2.004 n10.
F 2.004 n2 Factors In Determining Whether To Allow Jury View.
PC 1119 allows a jury view of scenes outside the courtroom in the judge’s discretion. Factors to balance in deciding to grant or deny a request for a jury view of the scene include the following:
1. Changes in surrounding physical appearance of premises since the event in issue.
2. The potential value of a view in aiding the jury to understand and appreciate the significance of evidence that may be presented in the courtroom.
3. The time, delay and expense of a view.
4. Territorial limitations.
5. Available alternatives to provide such information to the jury on the record.
6. The risk of exposure of the jury to irrelevant and prejudicial information and influence.
7. Relevance of the view to issues in the trial.
8. Supervision and conduct of the jury. (See Cissell, Federal Criminal Trials (Lexis, 5th ed. 1996) §§ 16-7, p. 418; see also U.S. v. Crochiere (1st Cir. 1997) 129 F3d 233, 236 [in determining whether to permit jury view of crime scene, court may consider such factors as orderliness of trial, whether jury would be confused or misled, whether it would be time-consuming or logistically difficult, and whether cross-examination had been permitted regarding details of scene]; State v. Oden (CT 1996) 684 A2d 1195, 1197 [in deciding motion to allow jury to view scene of crime, court should consider whether viewing scene is necessary or important so that jury may clearly understand issues and properly apply evidence]; Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-4 [View] (Lexis, 1999) [“The potential value of the view in aiding the jury to understand and appreciate the significance of evidence that may be presented in the courtroom; available alternatives to provide such information to the jury on the record; counsels’ efforts, or lack of efforts, to try to develop alternatives to a view on the record; the delay and expense of a view; the risk of exposure of the jury to irrelevant and prejudicial information and influence].)
RESEARCH NOTES: See FORECITE F 2.004 n10.
F 2.004 n3 Presence Of Judge At Jury View.
“Where the jury is allowed a view — such as a view of the scene of the crime — the trial judge should ordinarily be present. If the trial judge is required to be present at a view, his absence may be sufficiently prejudicial to warrant a new trial or the reversal of a conviction.” [Footnotes omitted.] (Wharton’s Criminal Procedure (West, 13th Ed. 1989) §§ 4, pp. 8-9.)
PC 1119 suggests that the judge need not be present at a jury view. However, the absence of the judge during a view by a jury is grounds for a new trial. (People v. Yut Ling (1888) 74 C 569 [16 P 489]; see also People v. White(1907) 5 CA 329 [90 P 471] [absence of judge from jury view is erroneous].) On the other hand, the judge’s duty to be present when the jury views the premises may be waived by the defendant. (People v. White (1912) 20 CA 156 [128 P 417].)
RESEARCH NOTES: See FORECITE F 2.004 n10.
F 2.004 n4 Ex Parte View Of Crime Scene By Trial Judge.
An ex parte view of the scene by the judge is improper. (See People v. Jackson (90) 218 CA3d 1493, 1505 [267 CR 841] [“to permit a judge to base a finding, even in part, upon an ex parte view of the crime scene would sanction the impermissible taking of evidence outside of court without the presence of the parties and counsel”]; but see People v. Aronow (55) 130 CA2d Supp 898 [279 P2d 840] [fact that judge in traffic violation case may have viewed scene in defendant’s absence does not entitle complaint in appeal where it appears that defendant requested judge to view scene and did not object when judge indicated that he intended to do so alone].)
RESEARCH NOTES: See FORECITE F 2.004 n10.
F 2.004 n5 Presence Of Accused At Jury View.
The courts have consistently held that the Due Process (5th and 14th Amendments) and Confrontation (6th Amendment) clauses guarantee a criminal defendant’s right to be present “at every stage of his trial where his absence might frustrate the fairness of the proceedings.” (Faretta v. California (1975) 422 US 806, 820 [45 LEd2d 562; 95 SCt 2525]; U.S. v. Gagnon (1985) 470 US 522, 526-27 [84 LEd2d 486; 105 SCt 1482]; Illinois v. Allen (1970) 397 US 337, 338 [25 LEd2d 353; 90 SCt 1057]; Sturgis v. Goldsmith (9th Cir. 1986) 796 F2d 1103, 1108; U.S. v. Frazin (9th Cir. 1986) 780 F2d 1461, 1469; Badger v. Cardwell (9th Cir. 1978) 587 F2d 968, 970; Bustamante v. Eyman (9th Cir. 1972) 456 F2d 269, 273; see also generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].) Furthermore, the defendant’s right to be present at a jury view has been specifically recognized. (See Snyder v. Massachusetts (1934) 291 US 97, 105-06 [78 LEd 674; 54 SCt 330]; People v. Bush (1886) 68 C 623 [10 P 169] [defendant’s right to be present during view by jury is part of his constitutional right to appear at his trial and defend himself in person and by counsel]; People v. Lowery (1886) 70 C 193 [11 P 605].) However, personal presence at a jury view is guaranteed by the federal constitution only to the extent that it is necessary to assure the fairness of the hearing. (Snyder v. Massachusetts, supra, 291 US 97 106-07; see also Chance v. State (GA 1923) 119 SE 303, 305 and Hunter v. Commonwealth (VA 1996) 477 SE2d 1, 2.)
STRATEGIC CAVEAT: Whether Counsel Should Waive Defendant’s Presence At The Jury View. “In some cases, defense counsel may choose to waive [the right of the defendant to be present at a jury view] to avoid the potential for prejudice. The [defendant’s] presence at the scene may make it that much easier for the jury to place the defendant there on the day of the crime.” (Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) §§ 5-11, p. 257.)
RESEARCH NOTES: See FORECITE F 2.004 n10.
F 2.004 n6 Presence Of Counsel At Jury View.
The defendant has a federal constitutional right (6th and 14th Amendments) to the presence of counsel at all critical stages of the proceedings. (U.S. v. Ash (1973) 413 US 300, 313 [37 LEd2d 619; 93 SCt 2568]; Kirby v. Illinois(1972) 406 US 682, 688 [32 LEd2d 411; 92 SCt 1877]; U.S. v. Wade (1967) 388 US 218 [18 LEd2d 1149; 87 SCt 1926].) Normally, a jury view would qualify and counsel should be present. (See e.g., Arnold v. Evatt (4th Cir. 1997) 113 F3d 1352, 1361.)
RESEARCH NOTES: See FORECITE F 2.004 n10.
F 2.004 n7 Comments By Counsel During Jury View.
It has been suggested that it is improper for counsel to call the attention of the jurors to facts at the scene: “Where attorneys desire that the jury notice certain things at the view sight, they should not take it upon themselves to point these out but should work through the court.” (See e.g., WISCONSIN JURY INSTRUCTIONS – CRIMINAL, WIS-JI-Criminal 152 [View Of Scene] comment p. 2. (University of Wisconsin Law School, 2000).) If any statements are to be made at the view site, the statements should be made by the judge or a designated court officer. (See e.g., Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-4 [View] (Lexis, 3rd ed.1999).
RESEARCH NOTES: See FORECITE F 2.004 n10.
F 2.004 n8 Importance Of Jury View In Identification Case.
A jury view may be particularly useful where identification is a key issue. “For example, prosecution witnesses invariably claim the lighting was good at the scene and that their view of the culprit was unobstructed. On the formal view, counsel will have the opportunity to point out to the jury the nature and source of the lighting as well as the actual vantage point from which the witnesses allegedly made their identifications. The jurors can be requested to position themselves in just such vantage points. Often, a witness’ statement of what was seen from a certain position is contrary to the actual physical layout.” (Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) §§ 5-11, p. 257.)
F 2.004 n9 Jury View: Record Of Proceedings.
Because much of what occurs during a jury view is nontestimonial, it will be necessary to “state-for-the-record” any matters counsel wishes to memorialize on the record. (See FORECITE PG V(I)(G) [Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter].)
Additionally, it may be appropriate to request the presence of a reporter during the jury view in case statements are made.
RESEARCH NOTES: See FORECITE F 2.004 n10.
F 2.004 n10 Jury View: Research Notes.
See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene] (9th Circuit, 2000).
“Unauthorized View of Premises by Juror or Jury in Criminal Case as Ground for Reversal, New Trial or Mistrial,” 50 ALR 4th 995.
“Necessity for presence of judge at view by jury in criminal case,” 47 ALR 2d 1227.
F 2.004 n11 Motion For Jury View.
See Motion Bank # M-3016 for a “Motion To Permit Jury View.”
F 2.004 n12 5th Amendment: Improper For Defendant To Describe Jury View Of Premises.
A judge’s unexpected and direct request in the presence of the jury for a defendant to testify is at least as egregious as admitting an involuntary confession. Therefore, when a jury view is conducted of a place about which the defendant is familiar, it is improper for the court to ask the defendant to describe or otherwise participate in the jury view. (In re Dalton DEPUBLISHED (2002) 98 CA4th 958, 961-63 [120 CR2d 266].)
F 2.004 n13 Jury View Is Receipt Of Evidence.
See People v. Garcia (2005) 36 C4th 777 [jury view is receipt of evidence].
F 2.004 n14 View Of Scene Presence Of Defendant And Counsel.
See People v. Garcia (2005) 36 C4th 777 [excluding the defense from jury views of the scene of the crime during deliberations is reversible error].
F 2.004a
Cautionary Instruction: Authorized View Of The Scene By The Jury
The court has concluded that it would be helpful to you to view the __________ [insert description of scene that will be viewed]. We will now proceed to the scene and you will go with the bailiffs in their automobiles. While you are at the scene please do not ask any questions of anyone and do not discuss the case among yourselves. If you have questions, direct them to me. You should consider what you see during this viewing as evidence in the case, but you are not to give it any greater or lesser weight than the evidence presented in court.
Points and Authorities
A view of the scene or other evidence outside the courtroom is authorized in the court’s discretion by PC 1119. A jury’s view of the scene is considered independent evidence. (Witkin, Calif. Evidence, (3d Ed. 1986), § 847d.) CALJIC contains no such instruction for use in such circumstances. The above instruction is adapted from Devitt, et al., Fed. Jury Prac. & Inst. (1992), § 10.19.
F 2.004b
Non-CALJIC Cautionary Instructions:
Jury Should Be Instructed As To Whether Or Not The View Of The Scene Is Evidence
SAMPLE INSTRUCTIONS # 1:
Matters which you observed while viewing the scene are evidence just as if they were given here in court. You decide what weight, if any, to give to the evidence viewed at the scene just as you do with any evidence.
[Cf. NEBRASKA CRIMINAL JURY INSTRUCTIONS, NJI2d Crim 5.9 [Jury View] (West, 2nd ed. 1992).]
SAMPLE INSTRUCTION # 2:
You should consider what you see during this viewing as evidence in the case, but you are not to give it any greater or lesser weight than the evidence presented in court.
[Source: FORECITE.]
Points and Authorities
Because a jury view takes place outside of the courtroom it may not be clear to the jurors whether or not the jury view is evidence. In fact, some jurisdictions do not allow the jury to consider the view of the scene itself as evidence but do allow it for the purpose of assisting the jury in understanding evidence previously introduced. (See e.g., Parks v. Howard (GA 1990) 398 SE2d 308, 310; Gossett v. State (GA 1990) 388 SE2d 804, 806 [a viewing of the scene of the crime is not regarded as evidence]; Cargill v. State (GA 1986) 340 SE2d 891, 905 [trial court did not abuse its discretion in allowing jury to view scene of murder where court instructed jury that sole purpose of view was to help them understand evidence and that what they might see at scene was not evidence]; State v. Plath (SC 1984) 313 SE2d 619, 625 [it is not a taking of testimony].)
In California, however, a jury’s view is considered to be independent evidence. (See Witkin, California Evidence, 3d Ed. 1986, § 847d; see also People v. Bush (1886) 68 C 623 [10 P 169]; People v. Milner (1898) 122 C 171, 184-85 [54 P 833] [“If…the court should direct that the place where the material fact occurred should be viewed by the jury, and the jury should be conducted to the spot, and the panel of the door pointed out to them, would it be any the less the reception of evidence because obtained in this way? Certainly not”]; People v. Bolin (98) 18 C4th 297, 325 [75 CR 412] [we have long held that “in so viewing the premises the jury was receiving evidence” even if nontestimonial];McCarthy v. Manhattan Beach (53) 41 C2d 879 [264 P2d 932] [observations of a trial judge in viewing the premises or scene of the controversy is evidence in the case upon which findings may be based]; People v. White (1907) 5 CA 329, 337 [90 P 471] [in viewing the place in which an offense is charged to have been committed, under section 1119 of the Penal Code, the jury is “receiving evidence”].)
Accordingly, the instructions should clarify the role of the jury view for the jury. (See e.g., NEBRASKA CRIMINAL JURY INSTRUCTIONS, NJI2d Crim 5.9 [Jury View] (West, 2nd ed. 1992).) Additionally, it may be appropriate to caution the jury against giving the view evidence undue weight. (See e.g., Davis v. Erickson (60) 53 C2d 860, 863-64 [3 CR 567] [after delivering supplemental instructions, the court should admonish the jury not to give the additional instructions any more significance than the other instructions which were previously delivered to the jury].)
RESEARCH NOTES: See FORECITE F 2.004 n10.
F 2.004c
Non-CALJIC Cautionary Instructions: Jury View — Unavoidable View Of Scene
SAMPLE INSTRUCTION # 1:
You are not to independently view or investigate [or rely on prior observations regarding] the scene referred to by the evidence in this case. However, in some cases, it may be unavoidable for you to [pass by the scene] [recall your past observations of the scene]. If this is the case, you must be especially vigilant not to investigate or look for anything related to the case. Anything you do see is not evidence and must not be considered for any purpose.
SAMPLE INSTRUCTION # 2:
If you unavoidably see the scene, anything you see is not evidence and should not be considered by you for any purpose. Do not investigate or look for anything related to the case.
Points and Authorities
In some situations, such as where the crime took place in the public part of a small community, it may be unavoidable for the jurors to pass by the scene of the crime. In such situations, a special cautionary instruction may be warranted.
Ordinarily, unauthorized viewing of the crime scene by a juror is misconduct. (See e.g., People v. Sutter (82) 134 CA3d 806, 819 [184 CR 829]; see also CJ 0.50 and CJ 1.03.) In certain cases, however, it may not be possible for jurors to avoid passing by the scene of the crime during the trial. In such a case, the admonition regarding not visiting the scene should be modified or supplemented. (See e.g., ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS 1.08 Note [Admonitions As To Juror Conduct] (Alaska Bar Association, 1987).)
RESEARCH NOTES:
See A Manual On Jury Trial Procedures [3.11A. Jury Examination of Demonstrative Evidence: Jury View Of The Scene].
“Unauthorized View of Premises by Juror or Jury in Criminal Case as Ground for Reversal, New Trial or Mistrial,” 50 ALR 4th 995.
F 2.004d
Non-CALJIC Cautionary Instructions:
Jury View — Cautionary Instruction Regarding Changed Conditions
SAMPLE INSTRUCTION # 1:
Your consideration of the view of the scene should be cautious. Conditions may have changed since the time of the events in this case. Thus, the scene as it will appear to you during the view may be different than it was at the time of the events to which the witnesses have testified.
[Source: FORECITE.]
SAMPLE INSTRUCTION # 2:
Anything you saw during your view of the scene is not evidence. Such observations are solely for the purpose of helping you understand and evaluate the evidence presented here in court.
[Cf. WASHINGTON PATTERN JURY INSTRUCTIONS – CRIMINAL, WPIC 4.51[View Of The Scene] (West, 2nd ed. 1994).]
Points and Authorities
One of the potential problems with a jury view is that the conditions may have changed since the crime. If this is so the crime scene is extraneous and inaccurate evidence which may prejudicially mislead the jury.
“Although discretionary, the power to authorize a view of the scene should be invoked only after the court is satisfied that the present conditions at the site are the same as those that existed on the date of the underlying incident, and that such a personal inspection is fair to both parties and reasonably necessary to do justice.” [Internal quotation marks omitted.] (State v. Cintron (CT 1995) 665 A2d 95, 99; see also People v. Keltie (83) 148 CA3d 773, 782-83 [196 CR 243] [if conditions are different request for jury view may be denied]; People v. King (MI 1995) 534 NW2d 534, 538 [trial court gave cautionary instruction regarding changed conditions].)
If a jury view is allowed, notwithstanding changed conditions, an instruction warning the jury about the possibility of changed conditions and cautioning it in this regard may be appropriate.
RESEARCH NOTES:
See FORECITE F 2.004 n10.
F 2.004e
Non-CALJIC Cautionary Instructions:
Jury Should Be Admonished Against Talking During Jury View
SAMPLE INSTRUCTION # 1:
As in the courtroom, during the jury view you must not direct questions to any of the participants or discuss any matters relating to the case among yourselves. If you have a question it should be given to me by a written note.
[Source: FORECITE; see also O’Malley Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 11.07 [View Of Location – Permitted] (West, 5th ed. 2000).]
SAMPLE INSTRUCTION # 2:
During the view of the scene, do not discuss anything you see or any issue in the case. You must not discuss these matters among yourselves until you begin your deliberations.
[Cf. CRIMINAL JURY INSTRUCTIONS – NEW YORK, CJI 4.35 [Jury Visiting Scene] ¶¶ 3, (New York Office of Court Administration, 1983).]
SAMPLE INSTRUCTION # 3:
During the view of the scene you must refrain from conversations concerning the case and not permit others to converse with you concerning it.
[Cf. NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal K 5.08 [View Of Premises] Note (State Bar Association of North Dakota, 1985).]
Points and Authorities
PC 1119 expressly precludes any person from communicating with the jury during a jury view. However, because the jury view is held outside of the courtroom, the jury may not understand that the admonition not to talk or discuss the case is applicable during the jury view.
See McDowell v. Schuette (MO 1980) 610 SW2d 29, 39; see also O’Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 5.17 [Jury- View Of Scene] (West, 5th ed. 2000); Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-4 [View] (Lexis, 1999) [prior to a jury view of a scene, the jury should be admonished not to discuss the case, the view or to ask questions during the course of the view]; Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-4 [View] (Lexis, 1999).)
RESEARCH NOTES:
See FORECITE F 2.004 n10.
F 2.004f
Non-CALJIC Cautionary Instructions:
Jury To Remain Together And With The Judge Or Court Officer During Jury View
During the jury view we must all remain together. Do not stray from the group or attempt to conduct your own individual investigation.
[Cf. CRIMINAL JURY INSTRUCTIONS – NEW YORK, CJI 4.35 [Jury Visiting Scene] ¶¶ 3, sent. 4 (New York Office of Court Administration, 1983).]
Points and Authorities
Due to the less formal nature of a jury view of the scene, there may be a danger that the jurors will separate from the group and either discuss the case, or have a different view of the scene than the remainder of the jury. Accordingly, it is important to assure that the jury remain together as a group and under the control of the judge or court officer so that discussion among the jurors can be prevented and so that all jurors will see the same thing at the scene.
Just as the jury must all be present together with the judge and counsel during trial proceedings, so too should they remain together during a jury view. (Cf. Burke v. U.S. (DC MA 1965) 247 FSupp 418, 419 [jury, judge, witnesses and attorneys all transported together to and from the jury view].)
RESEARCH NOTES:
See FORECITE F 2.004 n10.
F 2.004g
Non-CALJIC Cautionary Instructions:
Identification Of Defendant From Surveillance Photo —
Preliminary Facts Required
The prosecution has offered the testimony of witness _________ that defendant is the person in the surveillance photo. However, you may not consider this unless you first find that _________’s testimony provided you with a perspective that you could not obtain yourselves by comparing the appearance of the defendant in the courtroom with the surveillance photo.
Points and Authorities
Whether a lay witness is helpful depends on the totality of circumstances including the witness’ “familiarity with the defendant’s appearance at the time the crime was committed (U.S. v. Jackman (1st Cir. 1995) 48 F3d 1, 5), the witness’ familiarity with the defendant’s customary manner of dress, in so far as such information related to the clothing of the person depicted in the surveillance photograph (see U.S. v. Pearce (11th Cir. 1998) 136 F3d 770, 774), whether the defendant disguised his or her appearance during the offense or altered his or her appearance before trial (id. at 775), and whether the witness knew the defendant over time and in a variety of circumstances such that the witnesses lay identification testimony offered to the jury “a perspective it could not acquire in its limited exposure to the defendant. (U.S. v. Allen (4th Cir. 1986) 787 F2d 933, 935-36.)