Variance Between Reporter’s Transcript And Written Instructions
July 22nd, 2016

Case By Case Analysis

When there is a variance between the reporter’s transcript and the written instructions, a case by case analysis is used to determine which part of the record is more credible. (People v. Smith (1983) 33 C3d 596, 599; see also People v. Carter (2003) 30 C4th 1166, 1199 [“where the clerk’s and reporter’s transcripts conflict, the latter controls when, under the circumstances, it is the more reliable…”]; People v. Marshall (1990) 50 C3d 907, 931, fn. 3 [Supreme Court quotes the instructions as they appear on the written forms and recorded in the Clerk’s Transcript and not the orally delivered instructions recorded in the Reporter’s Transcript, where there is no substantial variation between the two]; People v. Diaz (1989) 208 CA3d 338, 347, dissenting opinion of Brauer, J.) When the record is in conflict, it will be harmonized if possible, but if it is not possible to do so, that part of the record which, because of its origin and nature or otherwise, is entitled to greater credence, will prevail. (People v. Thompson (2009) 180 CA4th 974; but see People v. Wilson (2008) 44 C4th 758, 803 [“written instructions . . . control”].)

Insignificant Discrepancies: Presumption That Jurors Followed Written Instructions

In People v. McLain (1988) 46 CA3d 97, 111, fn 2, the court orally instructed the jury and then sent written instructions into the jury room for use during deliberations. With regard to insignificant discrepancies between the oral and written instructions, the Supreme Court presumed “that the jurors were guided by the written version ….” (Ibid.; see also People v. Wilson (2008) 44 CA4th 758, 803; People v. Prieto (2003) 30 CA4th 226, 255 [“the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions”]; People v. Majors (1998) 18 CA4th 385, 410 [error in oral instruction was harmless in light of correct written instruction given to the jury]; People v. Osband (1996) 13 C4th 622, 687 [misreading of instructions is at most harmless error when the written instructions received by the jury are correct]; People v. Crittenden (1994) 9 CA4th 83, 138 [written instructions control over misspoken oral instructions]; People v. Rodriguez (2000) 77 CA4th 1101, 1112-13 [as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions]; but see People v. Battle (2011) 198 CA4th 50, 69-70 [court of appeal relied on oral instructions to cure ambiguous written instructions].)

CC 200 Requires Reliance On Written Instructions

In People v. Mills (2010) 48 CA4th 158, 200-01 the trial court misspoke on three occasions while reading the instruction to the jurors but any error was not prejudicial in light of, inter alia, CC 200: “The trial court committed no reversible error, structural or otherwise. The risk of a discrepancy between the orally delivered and the written instructions exists in every trial, and verdicts are not undermined by the mere fact the trial court misspoke. ‘We of course presume “that jurors understand and follow the court’s instructions.” [Citation.] This presumption includes the written instructions. [Citation.] To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.’ [Citation.] Because the jury was given the correctly worded instructions in written form and instructed with [CC 200] . . . [‘ to only consider the final version of the instructions in your deliberations,’] and because on appeal we give precedence to the written instructions, we find no reversible error. [Citations.]”

Unpublished Decision Defaults To Oral Instructions To Affirm Conviction

In People v. Anguiano UNPUBLISHED (April 23, 2013; F062011) the reviewing court found a way to rely on the oral instructions to cure a defect in the written instructions as follows:

“Although this court gives priority to the written version of an instruction when a conflict exists between the written and oral versions, the jury is not informed of this rule.” (People v. Wilson (2008) 44 C4th 758, 804.) In a criminal trial, “not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘”whether the ailing instruction … so infected the entire trial that the resulting conviction violates due process.”‘ [Citations.]” (Middleton v. McNeil (2004) 541 U.S. 433, 437; Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Huggins (2006) 38 C4th 175, 192.) “‘[I]t must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some [constitutional] right ….'” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643, fn. omitted; Estelle v. McGuire, supra, 502 U.S. 62, 72.) Correct oral instructions, the jury’s awareness of differences between the written and oral instructions, and the weight of evidence against the defendant are all factors considered in determining whether or not an erroneous instruction was harmless. (People v. Wilson, supra, 44 C4th 758, 804.)

Substantial Discrepancies: Oral Instructions Should Control.

As discussed in FORECITE PG V(G)(4), it is only through oral instruction that it “can be assured that each member of the jury has actually received all of the instructions.” (State v. Norris (1985) 10 Kan.App.2d 397 [699 P2d 585]; see also State v. Castoreno (1994) 255 Kan. 401, 411-12 [874 P2d 1173, 1180-81]; People of the Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15.) This is so because there is no assurance that all or any of the jurors actually read the written instructions. (Ibid.; see also People v. Anguiano UNPUBLISHED (discussed above) [relying on oral instead of written instructions when there was “no indication that [the jury] was aware of the difference between the oral and written versions of CC1401 since it did not ask any questions on this point”]; cf. People v. Wilson (2008) 44 CA4th 758, 803-04 [“Written instructions . . . control” but “[i]t is possible the jury followed the oral instruction.”].) Accordingly, if there is a substantive difference between the oral and written instructions, the resolution should logically be made in favor of the oral rendition. (See, e.g., People v. Battle (2011) 198 CA4th 50, 69-70 [court of appeal relied on oral instructions to cure ambiguous written instructions].)

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