The Most Important “Non-Critical” Part of A Trial
October 31st, 2020

In its September 2020 revisions the CALCRIM committee modified CC 202 to provide as follows (added language is highlighted):


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. It is the record that must guide your deliberations, not your notes. You must accept the (court reporter’s record /court’s recording) as accurate. Do not ask the court reporter questions during the readback and do not discuss the case in the presence of the court reporter.


[CC 104 which also addresses reading back testimony to the jurors was not similarly modified. The subject of readback is only addressed in these two pretrial instructions. It is not discussed in any of the pre-deliberation instructions.]


This revision apparently seeks to avoid potential problems from the common practice of allowing unsupervised, closed-door readback of testimony to the jurors by the reporter. However, by implicitly endorsing such unsupervised readback proceedings the new instruction does more harm than good. The reason why counsel should never agree to an unsupervised readback is graphically illustrated by what happened in People v. Aikens (N.Y. Sup. Ct. 1983) 119 Misc. 2d 1085:

At the trial it was shown … the defendant sold a quantity of heroin to … an undercover officer. Police records set forth a description given by[the officer] of the appearance of the defendant at the time of the sale. The defense then attempted to bring out discrepancies between the description and the actual appearance of the defendant at the time of the sale. One of the key discrepancies was the defendant’s missing front teeth and the lack of reference to teeth in any description. Both counsel argued this point in their summations.

The relevant portion of the minutes of the cross-examination of [the officer] read as follows:

“Q Now, I ask you, does Mr. Aikens look essentially the same now as he did on June 2nd?

“A Essentially the same with the exception of his feet.” (Emphasis in original.)

The jury requested this testimony be read back and a verdict was rendered. Following the reading of the verdict and discharge of the jury, with the court’s permission both counsel entered the jury room to speak to the jury members. At this point the error in the readback was noted by defendant’s counsel… the word “feet” was misread to the jury and the word “teeth” was substituted. The word “feet” [was] the correct rendition of the testimony at the trial [and a new trial was ordered].

What happened in Aikens can (and likely has) happened other cases. One of the more common requests from a deliberating jury is for a readback of testimony that the jurors presumably consider to be important. In light of cases like Aikens and as a matter of common sense, it seems reasonable to assume that the proceeding during which testimony is read back to the jurors is an important, indeed critical, phase of the of the trial. Thus, it seems inadvisable, at best, to conduct unsupervised in camera readback of testimony to the jurors.


Yet, that is often exactly what happens, and the CSC has no problem with it. (See e.g.  People v. Covarrubias (2016) 1 Cal.5th 838, 916-918; People v. Lucas (2014) 60 Cal.4th 153, 300-301.


It is, of course, understandable that busy attorneys do not want to “waste their time” sitting through a lengthy readback that everybody assumes will simply repeat testimony that has already been presented in court. But for an attorney representing a criminal defendant whose liberty is at stake, assumptions are to be avoided. (Of course, the word ASSUME has a well-known cautionary acronym which will not be repeated here.)


But in all seriousness, there is no guarantee that an unsupervised readback will not result in some sort of prejudice to one’s client. There are so many things that can go wrong if no one is present other than the reporter and jurors notwithstanding CC’s recent effort to curtail potential problems via a jury instruction. As recognized by one federal court, the presence of counsel during the readback is crucial:

We think sending the court reporter to read to the jury the testimony of Officers Smith and Woody implicated appellant’s rights more than the “ministerial” action of transmitting exhibits in Quarles. An inadvertent omission of a part of this testimony, a mistake in the reading of a shorthand symbol or an inappropriate emphasis of voice could have occurred. The situation here, however, was ameliorated by the presence of the two defense counsel and the prosecutor who had heard the original testimony and listened to its being read back to the jury.

          (Harris v. United States (D.C. 1985) 489 A.2d 464, 468.)

Nor can it simply be presumed that no error occurred during the readback of a transcript. As Aikens so well illustrates the transcript itself may contain errors.


Moreover, even if the transcript is correct it is not an easy task to read aloud perfectly from a written document even when the reader is doing their best to be accurate. For example, errors made by trial judges when reading written instructions aloud to the jurors are so common that the California Supreme Court recommends that jury be provided written instructions in capital cases “to cure the inadvertent errors that may occur when the instructions are read aloud. (See People v. Seaton (2001) 26 Cal.4th 598, 673.) And, reviewing courts have long abided by a special standard of review in reviewing the plethora of such errors. (See People v. Edwards (2013) 57 Cal.4th 658, 746 [if discrepancy between written and oral versions of jury instructions, written instructions provided to jury control]; People v. Mills (2010) 48 Cal 4th 158, 200-201[same]; People v. Wilson (2008) 44 Cal.4th 758, 803 [same]; People v. Davis (1995) 10 Cal.4th 463, 542 [same]; People v. Crittenden (1994) 9 Cal.4th 83, 138; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2.)

In sum, just as [t]he risk of a discrepancy between the orally delivered and the written instructions exists in every trial… (People v. Mills, supra.) the risk of discrepancy during an unsupervised readback of testimony exists in every trial.

Furthermore, the risks associated with readback proceedings are not limited only to errors in the transcript or errors in reading the transcript aloud:

. . . [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 F.2d 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 F.2d 74, 743.) [Even though Ku Pau analyzed the issue under Fed. Rule of Criminal Proc. 43, the reasoning also applies to the constitutional bases for the right to presence.] Similarly, the absence of the defendant from the replaying of a tape of the jury instructions has been held to violate a defendant’s right to due process and confrontation.  (Bustamante v. Eyeman, supra, 456 F.2d 269, 271.)

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