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PG IX(D) Response to Jury Inquiry.
PRACTICE NOTE: WHETHER TO PERMIT CONTINUED DELIBERATIONS WHILE JURY INQUIRY IS BEING CONSIDERED: If the jury has requested clarification of the instructions, counsel may wish to request that the trial court stop the jury deliberations while it is determined what response will be given to the jury. PC 1138 does not require the trial court to sua sponte stop deliberations in such a situation. Hence, in the absence of a request by counsel that the deliberations be stopped, if the jury reaches a verdict before the requested clarification can be given, the verdict will stand. (People v. McCleod (97) 55 CA4th 1205 [64 CR2d 545].)
PG IX(D)(1) Duty to Clarify Ambiguous Inquiry:
When the jury’s request for reinstruction is unclear, the court should inquire further to determine what additional information is required. (See People v. Thompkins (87) 195 CA3d 244, 250 [240 CR 516]; see also People v. Beardslee (91) 53 C3d 68, 97 [279 CR 276]; U.S. v. Walker (10th Cir. 1977) 557 F2d 741, 746; Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 157.)
PRACTICE NOTE: See FORECITE PG IX(B) regarding necessity of making a record as to any response to jury inquiry.
PG IX(D)(2) Duty To Eliminate Juror Confusion:
PC 1138 “imposes a ‘mandatory’ duty to clear up any instructional confusion expressed by the jury.” (People v. Beardslee (91) 53 C3d 68, 96-97 [279 CR 276]; People v. Gonzalez (90) 51 C3d 1179, 1212 [275 CR 729]; see also People v. Rincon-Pineda (75) 14 C3d 864, 885 [123 CR 119]; People v. Miller (88) 120 CA3d 233, 236 [174 CR 479]; People v. Malone (59) 173 CA2d 234, 244 [343 P2d 333]; ABA Standards, Std. 15.43(a).) Furthermore, a long line of federal cases also recognize the duty of the trial court to clear up any juror confusion regarding the instructions. (See FORECITE PG IX(F) “Sample Briefing On Court’s Duty To Respond To Juror Inquiry.”)
While commonly understood terms need not be defined for the jury, if the jury expresses a lack of such “common understanding”, the court’s underlying obligation to assure that the jury understands its duties may require that the term be further defined. (See FORECITE PG IX(D)(1); see also People v. Kirkpatrick (94) 7 C4th 988, 1017-18 [30 CR2d 818], Mosk, concurring.)
See FORECITE CHK III(B).
PG IX(D)(3) Readback Of Prior Instructions May Not Be Sufficient.
If the inquiry indicates that the jury did not understand the original instructions given before deliberations began, simply reading those same instructions over again may not be sufficient to eliminate the jury’s confusion. (People v. Samuels (2005) 36 C4th 96, 140, Werdegar, J., concurring [“By simply rereading CALJIC No. 8.84—the same instruction already provided to the jury—the trial court failed to clarify the legal issue that concerned the jury….”]; People v. Gonzalez (99) 74 CA4th 382, 389-90 [court erred in repeating non-responsive CALJIC instructions when jury asked specific questions concerning defense of accident]; People v. Thompkins (87) 195 CA3d 244, 253; Estate of Mann (86) 184 CA3d 593, 614; U.S. v. Southwell (9th Cir. 2005) 432 F3d 1050, 1053; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 838; U.S. v. Bolden (D.C. Cir. 1975) 514 F2d 1301, 1308-09; Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 158.)
McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 838, reaffirmed the view that a simple readback of prior instructions may not be sufficient when the jury has indicated that it was confused by those instructions. The 9th Circuit invalidated the conviction because: “the trial judge did not identify the exact problem confounding the eleven jurors. He simply referred the jurors to the original instructions defining mitigating circumstances. The jurors had these instructions with them all along. Both sides agree the instructions were technically flawless. They were, however, the same instructions that for some unknown reason eleven of the jurors did not correctly understand in the first place. Under these circumstances, we agree with Justice Broussard of the California Supreme Court: ‘There is no point in reiterating language which has failed to enlighten the jury.’ [Citation.]” (McDowell v. Calderon, 130 F3d at 838.) “The unremarkable prescription for [juror] confusion is that ‘[w]hen a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.’ [Citation to Bollenbach v. U.S. (46) 326 US 607, 612-613 [90 LEd 350; 66 SCt 402]. As the 7th Circuit has said, Bollenbach places on the trial judge ‘a duty to respond to the jury’s request with sufficient specificity to clarify the jury’s problem.’ [Citation] This duty exists, among other reasons, because ‘in a trial by jury…, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.’ [Citation to Bollenbach, 326 US at 612].” [internal quotation marks deleted] (Davis v. Greer (7th Cir. 1982) 675 F2d 141, 145; but see Weeks v. Angelone (2000) 528 US 225 [145 LEd2d 727; 120 SCt 727] [no error to refer jurors to specific portion of correct instruction that addresses their question].)
“Unfortunately, the trial court’s failure in the present case to aid the jury during its deliberations by providing adequate instructions in response to its inquiry is a failure we perceive is all too common. Rereading previously given standard CALJIC instructions in response to a jury’s question on the law when those instructions are inadequate rather than responding directly to the jury’s question out of fear of committing error is not a rarity.” (People v. Gonzales(99) 74 CA4th 382, 389-90.)
PG IX(D)(4) Readback Procedure.
PG IX(D)(4.1) Right To Readback. See FORECITE F 102 Inst 2.
PG IX(D)(4.2) Presence Of Defendant At Readback.
The defendant has a constitutional right to be notified of and to be present at a jury readback, at least in the situation where counsel was not informed. Court distinguishes La Crosse v. Kernan (9th Cir. 2001) 244 F3d 702, because there counsel was notified and present and waived presence of defendant. (See generally Snyder v. Massachusetts (34) 291 US 97 [78 LEd2d 674; 54 SCt 330]; Fisher v. Roe (9th Cir. 2001) 263 F3d 906, 914-16.)
PG IX(D)(4.3) Right To Representation Of Counsel (And Presence Of Judge) At Readback.
Counsel is charged with the duty to identify and state objections to trial error. (See People v. Riel (2000) 22 C4th 1153, 1202 [trial counsel has the duty to protect the record when their client’s trial interests are at stake]; In re Horton(1991) 54 C3d 82, 95 [“‘it is counsel, not defendant, who is in charge of the case. By choosing professional representation, the accused surrenders all but a handful of “fundamental” personal rights to counsel’s complete control of defense strategies and tactics.’”]; People v. Hinton (2006) 37 C4th 839, 874 [same].) Thus, counsel’s presence at a readback proceeding is necessary to assure that any error which occurred during the readback was properly objected to and either corrected below or preserved for appeal. (People v. Sumstine (1984) 36 C3d 909, 917-918 [courts rely on counsel to “perform his duty as an advocate and an officer of the court to inform the accused of and take steps to protect the other rights afforded by the law . . .”].)
Moreover, as a person who is professionally trained to follow the testimony at trial, identify the important portions of that testimony and remember that testimony or adequately memorialize it, counsel is much better able to identify errors in the court reporter’s reading of the testimony than is the defendant.
Additionally, in the absence of counsel, any assumption that no error occurred while the jurors were reading the transcripts would be unreliable and fundamentally unfair to appellant.
The fact that a person may make errors in reading aloud from a written transcript is well illustrated by the number of times this court has had to rely on the written instructions to cure errors by the judge in reading aloud from the written instructions. (See, e.g., People v. Seaton (2001) 26 C4th 598, 673 [We reiterate our recommendation that in capital cases trial courts provide juries with written instructions “to cure the inadvertent errors that may occur when the instructions are read aloud.”]; see also People v. Davis (1995) 10 C4th 463, 542 [when the jury has received an instruction in both spoken and written forms, and the two versions vary, we assume the jury was guided by the written version]; People v. Crittenden (1994) 9 C4th 83, 138; People v. McLain (1988) 46 C3d 97, 111, fn. 2.)
Furthermore, even court reporters, who are trained to be precise and accurate, can and do make mistakes. (See, e.g., People v. Huggins (2006) 38 C4th 175, 191 [“Because the court clearly was reading a standard instruction, it is far more likely that the punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed by the court’s oral instructions. . .”].) Accordingly, it should not be assumed that the record will be correctly read to the jurors. ” . . . [A] mistake in the reading of a shorthand symbol which defense counsel would instantly detect, an unconscious or deliberate emphasis or lack of it, an innocent attempt to explain the meaning of a word or a phrase, and many other events which might readily occur, would result in irremediable prejudice to defendant.” (Little v. U.S. (10th Cir. 1934) 73 F2d 861, 864.) Even when the evidence requested by the jury is a tape recording which can be mechanically replayed, the proceeding is still considered an important part of the trial “because it involves the crucial jury function of reviewing the evidence.” (U.S. v. Ku Pau (9th Cir. 1986) 781 F2d 740, 743.) Thus, the presence of the judge, counsel and defendant is necessary to help identify errors and correct them for the jurors.
Finally, it cannot be assumed that any error which did occur would have been innocuous. When the jurors request a readback of testimony it is fair to say that such testimony is important to them. A deliberating jury’s request for readback or transcripts of certain testimony may reflect the jurors’ “intent to emphasize a specific portion of the trial. . . .” (U.S. v. Hernandez (9th Cir. 1994) 27 F3d 1403, 1408-09; see also U.S. v. Rodgers (6th Cir. 1997) 109 F3d 1138, 1145 [recognizing “the natural tendency of a deliberating jury to focus on the testimony it has requested”].) Courts may “proceed on the reasonable assumption that the jury, in making its request for [a readback] felt a definite need to review certain portions of [the requested] testimony. [Citation.]” (Smith v. Shankman (1962) 208 CA2d 177, 185.)
A critical stage is any “stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” (Mempa v. Rhay (1967) 389 U.S. 128, 134; Bell v. Cone (2002) 535 U.S. 685, 696 [defining a critical stage as “a step of a criminal proceeding, such as arraignment, that [holds] significant consequences for the accused”]; see also Hovey v. Ayers (9th Cir. 2006) 458 F.3d 892, 902.) In light of defense counsel’s special duties and training discussed above, the defendant’s substantial rights may be affected by allowing the jurors to receive a readback – which is a critical stage of the proceedings – in the absence of counsel.
PG IX(D)(5) Withdrawal Of Confusing Instruction In Response To Jury Inquiry.
If the jury indicates that it is confused by an instruction, one option available would be to withdraw the confusing instruction. (See U.S. v. Collum (9th Cir. 1979) 614 F2d 624, 631; see also People v. Nelson (97) 58 CA4th 193 [67 CR2d 899].) However, if the instruction is withdrawn/stricken, the judge should reread the remaining relevant instructions and conduct voir dire to make sure the jurors do not consider the stricken instruction and are no longer confused about the governing law. (Ibid.; see also People v. Hoover (2000) 77 CA4th 1020 [92 CR2d 208] [court should have explained its earlier limiting instruction was incorrect].) Additionally, counsel should be offered the option of reopening argument. (Nelson, 58 CA4th at 199.)