Written Jury Instructions: Trial Procedure Note
September 2nd, 2016

Often the record below does not establish that the packet of instructions in the Clerk’s Transcript is the actual packet the jurors received (or an exact copy of the jurors’ packet). The Rules of Court do not expressly require that the written instructions be included in the Clerk’s Transcript. (See Rule 8.320; 8.610 for death cases.) However, it could be argued that they are required under Rule 8.320(b)(5) [8.610(a)(E) for death cases] which requires inclusion of “Any written communication between the court and the jury….” Certainly a written jury instruction qualifies as a written communication between the court and jury.

In light of the potential confusion in the appellate record as to what written instructions the jurors actually received, trial counsel may wish to protect the record in some manner; e.g., by offering an exact copy of that packet as a “Court Exhibit” or by specifically requesting on the record that the actual packet be preserved by the Clerk and that the chain of custody of that custody be noted in the record.

In the absence of a clear and certain record as to exactly which instruction packet the jurors received, appellate counsel may be at a disadvantage in evaluating and raising certain jury instruction issues. For example, in People v. Rojas (2015) 237 CA 4th 1298,1305 counsel had reason to believe that an important unanimity instruction had been omitted from the jury’s packet. However, because a supplemental Clerk’s Transcript indicated that the written unanimity instruction was given to the jurors appellate counsel was placed in a position of having to “prove the instruction was left out of the jury’s packet of written instructions.” (Ibid.) Had the actual instruction packet been properly preserved counsel could easily have resolved the conflict regarding whether or not the jury actually did receive the unanimity instruction.

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