The Judge Erroneously Gave the Jury a Supplemental Jury Instructions Without First Consulting with Counsel
August 29th, 2016

In People v. Brown (2016) 247 CA4th 211 the not guilty verdict form for first degree murder had been signed and dated, but the signature and date had been crossed out and the words “withdrawl [sic]” and “void” were written across it. Without consulting counsel or making counsel aware of the situation, the judge sent the jury a note and a new not guilty form asking it to sign and date the appropriate form for the verdict they had reached.

The Court of Appeal concluded that the trial court erred by giving a supplemental jury instruction to the deliberating without consulting with counsel. A court should not entertain communications from the jury except in open court, with prior notification to counsel. A defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant’s case. Counsel may have been able to suggest instructions that would amplify, clarify, or modify the court’s instruction.