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PG IX(F) Sample Briefing On Court’s Duty To Respond To Juror Inquiry.
The following is a sample briefing for use in establishing the trial court’s duty to adequately address juror inquiry: “The responsibility for adequate instruction becomes particularly acute when the jury asks for specific guidance.” (Trejo v. Maciel (66) 239 CA2d 487, 498; see also People v. Gonzales (99) 74 CA4th 382, 389-90; People v. Thompkins (1987) 195 CA3d 244, 250; Bartosh v. Banning (67) 251 CA2d 378, 387; People v. Miller (81) 120 CA3d 233, 236; 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; Price v. Glosson Motor Lines (4th Cir. 1975) 509 F.2d 1033, 1036.) “Where … the need for more [instruction] appears it is the duty of the judge … to provide the jury with light and guidance in the performance of its task.” (Wright v. U.S. (D.C. Cir. 1957) 250 F2d 4, 11.) “When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.” (Bollenbach v. U.S. (46) 326 US 607, 612-13 [90 LEd 350]; accord, Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 157-58; U.S. v. Harris (7th Cir. 1967) 388 F2d 373, 377.) “To perform their job properly and fairly, jurors must understand the legal principle they are charged with applying … A jury’s request for … clarification should alert the trial judge that the jury has 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].)
Moreover, 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].)
The precise nature of any amplification, clarification or rereading of instructions is a matter of judicial discretion. (U.S. v. Bolden (D.C. Cir. 1975) 514 F2d 1301, 1308.) But, “there are necessarily limits on that discretion.” (Ibid.) “When the jury makes a specific difficulty known … [a]nd when the difficulty involved is an issue … central to the case … helpful response is mandatory.” (Price v. Glosson Motor Lines 509 F2d at 1037.) At a minimum, the court must inquire into the jurors’ confusion and seek to identify the source of the question. (See McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839; People v. Thompkins, 195 CA3d at 250; Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 157.) Thereafter, the reinstruction or amplification should be fully sufficient to eliminate the confusion. (See, U.S. v. Bolden, supra, 514 F2d at 1308-09; see also U.S. v. Gordon (9th Cir. 1988) 844 F2d 1397, 1401-02 [error to rely on original instruction where jury expressed confusion regarding conspiracy counts]; U.S. v. Walker (9th Cir. 1978) 575 F2d 209, 213 [trial court’s response to jury confusion about a controlling legal principle was insufficient because it failed to eliminate that confusion].) A cursory response which does not clarify the confusion is insufficient. (People v. Thompkins 195 CA3d at 250; see also U.S. v. Petersen (9th Cir. 1975) 513 F2d 1133, 1136 [giving cursory supplemental instruction in face of jury confusion was insufficient].)
Also insufficient is a “perfunctory rereading” of the general instructions which were previously given. (U.S. v. Bolden, supra, 514 F2d at 1308-09; Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 158; Estate of Mann (86) 184 CA3d 593, 614 [229 CR 225].)
