In the recent Court of Appeals case, State v. Mason, the trial court erred by sending exhibits to the jury deliberation room over defense counsel’s objection. Although the State got lucky in that the error turned out not to be prejudicial, the decision signals that it’s a good time for a review of the relevant law. G.S. 15A-1233 sets out the procedure for dealing with the jury’s request to review testimony or evidence. Here’s how it’s supposed to work:
Jury Must Be Brought to Courtroom. If a deliberating jury requests a review of testimony or other evidence, the jurors must be conducted to the courtroom. G.S. 15A-1233(a). Both the jury’s request and the judge’s response must be made in open court. State v. Ashe, 314 N.C. 28, 32-36, 40 (1985); see also State v. McLaughlin, 320 N.C. 564, 568-70 (1987); State v. Nelson, 341 N.C. 695, 700 (1995).
Notice to Parties. The judge must notify the prosecution and the defendant of the jury’s request. G.S. 15A-1233(a). It is best practice for the trial judge to hear from both sides before responding to the request.
Exercise of Discretion. The judge must exercise his or her discretion when responding to the jury’s request. G.S. 15A-1233(a); Ashe, 314 N.C. at 35, 40. Examples of factors that the trial court might consider in the exercise of its discretion include:
- the significance of the evidence, State v. Lee, 128 N.C. App. 506, 509 (1998);
- a concern that the jury might give too much emphasis to the evidence that is reviewed and not properly consider the totality of the evidence, State v. McVay, 174 N.C. App. 335, 340-41 (2005), and
- the time, practicality, and difficulty involved with granting the request, State v. Perez, 135 N.C. App. 543, 555 (1999).
After exercising his or her discretion in connection with the jury’s request, the judge should expressly state on the record that he or she is granting or denying the request in his or her discretion. However, no further explanation is required. State v. Stevenson, __ N.C. App. __, 710 S.E.2d 304, 308 (2011).
Covered Evidence. The statute only applies to evidence that has been admitted at trial, G.S. 15A-1233(a); the trial court does not have authority to allow the jury to review exhibits that have not been admitted into evidence. State v. Cannon, 341 N.C. 79, 84-85 (1995).
Judge’s Response. If the judge decides to deny the jury’s request, the judge should so inform the jury. No specific language is required to do this but the judge should make clear that he or she exercised discretion when making the decision and that the jury should consider all of the evidence. State v. Weddington, 329 N.C. 202, 207-08 (1991). When the judge denies a request to review testimony stating only that a transcript is not available or cannot be produced, cases have held that the record failed to demonstrate an exercise of discretion. See, e.g., Ashe, 314 N.C. at 35. The N.C. Supreme Court has noted that “[t]he existence of a transcript is, of course, not a prerequisite to permitting review of testimony” and that “[t]he usual method of reviewing testimony before a transcript has been prepared is to let the court reporter read to the jury his or her notes under the supervision of the trial court and in the presence of all parties.” Id. at 35, n.6.
If the trial judge decides to allow the jury to review the testimony or evidence, the judge may direct that requested parts of the testimony be read to the jury and permit the jury to re-examine in open court the requested evidence. G.S. 15A-1233(a). Unlike a review in the jury room, the judge may allow a review in open court regardless of whether the parties consent. State v. Lee, 128 N.C. App. 506, 509 (1998).
Upon request by the jury and with consent of all parties, the judge may in his or her discretion allow the jury to take to the jury room exhibits and writings which have been received in evidence. G.S. 15A-1233(b). It is error to allow review in the jury room absent consent of all parties. Cannon, 341 N.C. at 83.
Regardless of whether the review is in open court or in the jury room, the judge may, in his or her discretion, allow the jury to review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested. G.S. 15A-1233(a) & (b).
When ruling on the jury’s request, the trial court must instruct the jury that it must remember and consider the rest of the evidence. Weddington, 329 N.C. at 208 (providing an example of how the instruction should be worded).
If the judge permits an exhibit to be taken to the jury room, the judge must, upon request, instruct the jury not to conduct any experiments with the exhibit. G.S. 15A-1233(b). It also makes sense to instruct the jury not to alter or change the exhibits in any way.
I don’t think I have ever seen a request for review of transcribed testimony granted. It seems that with improving technology it ought to be fairly simple to produce a transcript for the jury upon request.
15A-1233, as it relates to the jury taking evidence to the jury room, has proven very frustrating to me as a prosecutor. In each case, the State has not objected, and in fact welcomed the jury to review all the evidence as part of their deliberations and in each case the defendant has objected – tying the judge’s hands. How can the jury possibly reach a decision if the evidence is withheld from them? Jurors often need to reference something very specific or point out a detail to a fellow juror, but they cannot do that in open court. At a minimum, the Court should have discretion as to whether an item of admitted evidence can be taken to the jury room. Let’s let our juries do their jobs.