CC 202 instructs the jurors as follows:
If there is a disagreement about the testimony [and stipulations] at trial, you may ask that the (court reporter’s record be read to/court’s recording be played for) you.
This language is too limited because jurors should have the ability to request readback of testimony even if there isn’t an “actual disagreement about the testimony.” (Compare CC 104 [“If you decide that it is necessary, you may ask
that the (court reporter’s record be read to/court’s recording be played
for) you.”] CC 222 [same].)
It is true that the governing statute PC 1138 “indicates that a “disagreement” among the jurors is a prerequisite to the right provided by the statute, jurors have the right to have testimony read to them even without a showing of disagreement. [Citation to People v. Butler (1975) 47 Cal.App.3d 273, 280].” (People v. Triplett (2020) 48 Cal App 5th 655, 660.)
A jury cannot properly fulfill its constitutionally mandated role as fact finder if it cannot recall or is confused about the testimony presented in a case. Thus, in order to assist the jury in completing its fact-finding mission, trial courts should apply a liberal construction to a jury’s request for transcripts. (Id. at 662.)
Accordingly, the above language of CC 202 should be modified to comport with CC 222 or replaced with one of the sample instructions below.
NOTE: The pre-deliberation instructions do not refer to the jurors’ ability to request a readback of testimony.
Sample Instruction 1
If, during deliberations, any of you have a question about any part of the testimony or desire information upon any point of law in the case, you may send out a note making this request.
[See MINNESOTA JURY INSTRUCTION GUIDES – CRIMINAL, CRIMJIG § 3.08 [Jury May Return For Information] (West, 4th ed. 1999)].]
Sample Instruction 2
At the end of the trial, and during your deliberations, you will not have a written transcript of the testimony to consult. You will have the opportunity to request a readback of testimony about which you have a question, but it will be difficult and time consuming for the reporter to readback large portions of the trial. Therefore, you should pay careful attention to the testimony as you hear it and take such notes as you desire without interfering with your ability to pay close attention to the testimony.
Sample Instruction 3
Should you deem it helpful to do so, you may make the following requests at any time during your deliberations:
- For a written copy of the jury instructions to be sent into the juryroom;
- For the exhibits to be sent into the juryroom;
- For a read back of testimony or arguments of counsel;
- 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.
