PG V(G) Written Instructions to the Jury.
PG V(G)(1) Generally:
The judge must instruct the jury as to the availability of the written instructions and supply those instructions should the jury request them. (PC 1093(f); People v. Cooley (93) 14 CA4th 1394, 1397-1400 [18 CR2d 346]; People v. Blakley(92) 6 CA4th 1019 [8 CR2d 219]; see also Annotation, Failure to comply with statute, constitutional provision, or court rule providing for giving instructions to jury in writing as prejudicial or reversible error, 115 ALR 1332 and Later Case Service.)
If the court orally instructs the jury on various matters during trial, written copies may be given to the jurors as the instructions are read to them. (PC 1093(f).)
People v. Samayoa (97) 15 C4th 795, 845 [64 CR2d 400] concluded that the submission of written instructions to the jury (although generally beneficial and to be encouraged) is not required by the state or federal constitution.
PG V(G)(2) Discrepancies Between Oral and Written Instructions:
See FORECITE PG V(I)(B).
PG V(G)(3) Preservation Of Written Instructions For The Record:
An exact copy of the written instructions which were provided to the jury should be preserved with the case file for purposes of the appeal. ([Normal record includes all written instructions given and all written communication between judge and jury] Calif. Rules of Court, Rule 33(a)(1)(h) and (i); see also e.g., Criminal Jury Instructions for the District of Columbia, 4th ed. 1993, Inst. 2.76, p. 167 [“the court should preserve, with the case file, a copy of all instructions furnished to the jury until the time for filing a notice of appeal has elapsed”].) It does not suffice for the court reporter to transcribe the oral instructions for the record. (People v. Williams (94) 30 CA4th 1758, 1764-65 [37 CR2d 128].)
PG V(G)(3.1) Record Must Contain Exact Copy Of Written Instructions Given To Jury.
An exact copy of the written instructions which were provided to the jury should be preserved with the case file for purposes of the appeal. (Calif. Rules of Court, Rule 8.320(b)(4).) It does not suffice for the court reporter to transcribe the oral instructions for the record. (People v. Williams (94) 30 CA4th 1758, 1764-65.)
PG V(G)(3.2) Record Must Include Proposed Instruction Titles And Numbers.
The rules of court provide that the “form or format of the instructions presented to the jury . . . is a matter left to the discretion of the court.” (Calif. Rules of Court, Rule 2.1055(a)(2).) Thus, the judge may or may not delete the titles from the written instructions given to the jurors. (See generally F 200.1.2 Note 2.) However, any proposed instructions must include the instruction titles and numbers. (See Calif. Rules of Court, Rule 2.1055(c)(2).)
PG V(G)(4) Written Instructions In Lieu Of Oral Instructions As Reversible Error:
People of Terr. of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1315, held that where the court gave written instructions to the jury in lieu of reading them in open court, structural error was committed which compelled automatic reversal. (Id. at 1316) Similarly, in State v. Norris (85) 10 Kan.App.2d 397, 401 [699 P2d 585] the court stated that “oral instruction is vital to the fulfillment of the court’s duty to instruct the jury. Instruction of the jury is one of the most fundamental duties of the court and it is only through their oral delivery that the court can be assured that each member of the jury has actually received all of the instructions.” (State v. Norris (85) 10 Kan.App.2d 397, 401 [699 P2d 585]; see also United States v. Noble (3rd Cir. 1946) 155 F2d 315; State v. Iosefa (94) 77 Haw. 177 [880 P2d 1224]; Purdy v. State (77) 267 Ind. 282 [369 NE2d 633]; State v. Lamb (N.D. 1996) 541 NW2d 457.)
“If, for example, written copies of the instructions are given to each juror, a divergence in literacy and reading comprehension may well leave some jurors uninstructed. On the other hand, if the foreman is directed to read the instruction to the other jurors, defendant is deprived of the opportunity to witness the manner in which the foreman intones the instructions. A judge is obligated to act in an impartial and unbiased manner in delivering instructions. He may not sneeringly describe the defendant’s defense or make editorial comments while reading the instructions. A jury foreman is under no such constraint once the case has been submitted.” (State v. Norris (85) 10 Kan.App.2d 397, 401 [699 P2d 585].) Moreover, any such error is exacerbated where the court failed to affirmatively instruct the jury to read the written instructions before deliberating. (Ibid.) Without such an instruction there is no assurance that the instructions where read and that the verdict was based on application of the law to the evidence. (Ibid.)
PG V(G)(5) Written Instructions As Inherently Prejudicial Even If Oral Instructions Are Also Given.
Commonwealth v. Oleynik (90) 524 Pa. 41, 46 [568 A2d 1238] held that the potential prejudice to a defendant from written instructions given to the jury outweighs any benefit such instructions might provide. The inherent dangers were described as follows: “Where a jury is permitted to take with them written instructions during their deliberations, a question may arise as to the appropriate application of the written instruction when resolving an issue in the cause. In such a case, it is highly probable the jury would resort to its interpretation of the written instructions in reaching its verdict. Where the jury is required to rely upon the oral instructions, it is more likely that the jury would seek further instructions from the judge to resolve the question. When an issue is resolved by further instructions from the court, that procedure insures that misconceptions are not permitted to infect the deliberative process. On the other hand, when a jury is left to its own devices to interpret a written instruction, the possibility of a misconception is significantly enhanced. Moreover, the submission of written instructions would tend to encourage the jury to ignore the court’s general instruction and focus upon the written instructions supplied to them. This undue emphasis on portions of the charge has the potential of undermining the integrity of the deliberative process.” (Oleynik, supra, 524 Pa. 41, 46-47 [568 A2d 1238]; see also Commonwealth v. Byrd (91) 409 Pa.Super. 611, 616 [598 A2d 1011]; Commonwealth v. Story (78) 476 Pa. 391 [383 A2d 155]; see Annotation, Propriety and prejudicial effect of sending written instructions with retiring jury in criminal case, 91 ALR3d 382, and Later Case Service.)
PG V(G)(6) Supplemental Instructions Should Be Given Orally:
The reasoning in PG V(G)(4) and PG V (G)(5) above suggests that any instructional response to the jury’s inquiries during deliberation must not merely be submitted in writing. Even if a written response is provided, an open court oral rendition should also be made to assure the supplemental instructions are fully and fairly applied by the jury.
NOTE: In the event that supplemental written instructions are given to the jury, a separate admonishment should be given to assure that the supplemental instructions are accurately disseminated to all jurors (e.g., whether they are to be read by the foreperson and/or distributed in writing for each juror.) Additionally, the jury should be instructed not to give undue weight to the supplemental instructions and to treat them as part of the total charge. (See e.g., Davis v. U.S. (D.C. 1986) 510 A2d 1051, 1053; see also e.g., U.S. v. Parr (11th Cir. 1983) 716 F2d 796, 809; U.S. v. Piatt (8th Cir. 1982) 679 F2d 1228, 1231; U.S. v. Sutherland (5th Cir. 1970) 428 F2d 1152, 1157-58; FORECITE PG IX(C)(3).)