Return to CALJIC Part 14-17 – Contents
F 17.50 n1 Concluding Instruction: Jury Should Not Be Encouraged To Select Foreperson By Secret Ballot.
(See U.S. v. Tam (9th Cir. 2001) 240 F3d 797 [prosecution commits harmless error by inappropriately suggesting jury use secret ballot to select foreperson].)
F 17.50a
Concluding Instruction: Jury’s Right To
Written Instructions, Exhibits, Readback Of Testimony, Etc.
*To be added at end of CJ 17.50:
Should you deem it helpful to do so, you may make the following requests at any time during your deliberations:
1. For a written copy of the jury instructions to be sent into the jury room;
2. For the exhibits to be sent into the jury room;
3. For a readback of testimony or arguments of counsel;
4. For clarification or amplification of the instructions.
Should you desire to make any of these requests or should it otherwise become necessary during your deliberations to communicate with the court, you may send a note by a bailiff, signed by your foreperson, or by one or more members of the jury. No member of the jury should ever attempt to communicate with the court by any means other than a signed note; and the court will never communicate with any member of the jury on any subject touching on the merits of the case, otherwise than in writing, or orally in open court.
You will note from the oath about to be taken by the bailiffs that they too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case. Bear in mind also that you are never to reveal to any person, other than by request of the court, how the jury stands numerically or otherwise as to whether or not guilt has been proven beyond a reasonable doubt until after you have reached a unanimous verdict.
Points and Authorities
The judge has an obligation to instruct the jury that they may request the written instructions and he must provide the written instructions to the jury should they request them. (PC 1093.)
The jury must also be informed it may request a readback of testimony. (People v. Montaque DEPUBLISHED (2002) 95 CA4th 1241, 1247 [116 CR2d 353, 357].)
Obviously, the exhibits which have been admitted into evidence should be made available to the jury upon request. (See FORECITE F 2.007a.)
As to the reading of testimony, PC 1138 gives the jury the right to a readback upon request. (People v. Frye (98) 18 C4th 894, 1007 [77 CR2d 25]; see also People v. Wader (93) 5 C4th 610, 661 [20 CR2d 788]; People v. Pride (92) 3 C4th 195, 266 [10 CR2d 636]; People v. Gordon (90) 50 C3d 1223, 1259-60 [270 CR 451]; People v. Butler (75) 47 CA3d 273, 283-84 [120 CR 647].) Although the primary concern of PC 1138 is the jury’s right to be apprised of the evidence, a violation of the statutory mandate implicates a defendant’s right to a fair trial as well. (Frye, 18 C4th at 1007.) Therefore, it may be argued that the jury should be specifically instructed that they have a right to request a readback of testimony.
NOTE: The jury does not have the right to a readback of the arguments of counsel but such a request may be granted in the discretion of the court. (See also FORECITE PG IX(G).)
Although the jury’s request for clarification or amplification of the instructions is subject to the discretion of the trial court, there is no doubt that the jury’s right to make such a request and the court’s duty to give such a request careful consideration is an important component of the defendant’s constitutional right to trial by jury and due process. “A jury’s request for … clarification should alert the trial judge that the jury is focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration.” (People v. Thompkins (87) 195 CA3d 244, 250 [240 CR 516]; see also FORECITE PG IX(D).)
Because no CALJIC instruction informs the jury of their right to make the above requests, and because without such an instruction the jury may well not be aware of these rights, the above instruction should be given in all cases.
NOTES
The relationship between argument and the instructions should be an important consideration in determining whether a readback of the arguments is warranted. (See FORECITE PG IX(G).)
During deliberations, a jury’s request for the actual transcripts should be considered a request for a readback of testimony. Therefore, rather than simply informing the jury that transcripts are not available, the court must respond by informing the jury that the testimony will be read back to the jury upon their request. (See FORECITE F 17.50a.) [See Brief Bank # B-684 and ask for Opinion Bank # O-205 for additional briefing and an unpublished opinion [People v. St. James UNPUBLISHED (12/22/95, A066856)] on this issue.]
RESEARCH NOTES
See Annotation, Right to have reporter’s notes read to jury, 50 ALR2d 176, supp sec. 2 and Later Case Service.
F 17.50b
Concluding Instruction: Explanation Of “Not Guilty” Verdict
*Add to CJ 17.50:
You will note that [as to each count] there are two possible verdicts: “not guilty” or “guilty.” These verdicts should reflect your decision as to whether or not the prosecution has proven the defendant guilty beyond a reasonable doubt. The “guilty” verdict is for use when the prosecution has proven guilt beyond a reasonable doubt and the “not guilty” verdict is for use when the prosecution has not proven guilt beyond a reasonable doubt. It is not necessary for you to conclude that the defendant is factually innocent in order to return a “not guilty” verdict. Such a verdict only means that the prosecution has not met its burden of proving the defendant guilty beyond a reasonable doubt.
Points and Authorities
The penal code requires that the jury must render a general verdict of either “guilty” or “not guilty.” (PC 1150; PC 1151.) However, the verdict of “not guilty” may be confusing or misleading to lay jurors who could equate such a verdict with a finding of “factual innocence.” Although CJ 2.90 does relate the prosecution’s burden of proof to the not guilty verdict, no instruction specifically informs the jury of the distinction between a finding of not guilty as opposed to a finding of factual innocence.
Hence, the above instruction should be given to assure that the “not guilty” language of the verdict form accurately conveys the prosecution’s burden of proof to the jury as required by the California (Art. I, § 15) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (See In re Winship (70) 397 US 358, 363-64 [25 LEd2d 368; 90 SCt 1068]; see also, Sullivan v. Louisiana (93) 508 US 275 [124 LEd2d 182; 113 SCt 2078]; People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; People v. Griffin (63) 60 C2d 182, 191 [32 CR 24].)
For additional instructions relating to this issue, see FORECITE F 1.00b, FORECITE F 1.00d, FORECITE F 1.00h, FORECITE F 2.90d.
NOTES
Even though the verdicts should offer the jury the choice of guilty or not guilty (rather than innocent), the presumption of innocence instruction must inform the jury that the defendant is presumed innocent unless proven guilty. (See FORECITE F 2.90 n11.)
F 17.50c
Concluding Instruction: Any Juror May Request
A Readback Of Testimony
*Add to CJ 17.50:
Any juror may request a readback of testimony [or] [arguments of counsel] which that juror needs to hear again.
Points and Authorities
See People v. Burgener (2003) 29 C4th 833 [“. . . any juror may request a read back of testimony. . .”]; see also FORECITE F 17.50a; see also F 17.43c.
As to the right to the propriety of a readback of arguments, see FORECITE F 1.05a.