In a post here I discussed the procedure a trial judge should follow when a deliberating jury asks to review evidence. In that post I noted that the judge must exercise discretion when responding to the jury’s request. The types of factors that the trial court might consider include:
- the significance of the evidence;
- 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; and
- the time, practicality, and difficulty involved with granting the request.
I went on to note that after exercising discretion in connection with the request, the judge should expressly state on the record that he or she is granting or denying the request in his or her discretion. The recent case State v. Hatfield, put an exclamation mark on that last point.
In Hatfield, the defendant was charged assault on a female (his wife) and assault by pointing a gun (one count for pointing the gun at his wife; one count for pointing it at his baby). At trial the State’s evidence consisted of testimony from the defendant’s wife and a responding officer. The defendant testified in his defense, saying that none of what was alleged occurred. During deliberations, the jury asked to hear a reading of the wife’s testimony. The trial judge responded:
We can’t do that because we haven’t done daily copy and so you have to rely on your best recollection among the 12 of you of what it was. To do daily copy is quite expensive and so you may have seen that on TV, but that’s not how we do it.
The jury was then sent back to continue deliberating and later returned a verdict finding the defendant guilty on all charges.
Citing the North Carolina Supreme Court’s decision in State v. Barrow, 350 N.C. 640 (1999), the court concluded that the trial court’s statements in response to the jury’s request suggests a failure to exercise discretion and could be read as indicating that the trial court thought it was unable to honor the request. As our courts have previously noted, however, the unavailability of a written transcript does not preclude the jury’s review of the evidence. When no transcript is available, the trial court simply can have the court reporter read his or her notes in open court. The court went on to find the trial court’s failure to exercise discretion prejudicial given that the defendant’s testimony directly contradicted that of his wife, the only eyewitness to the incident.
As many of you know, I’ve been maintaining my Criminal Case Compendium since 2008. A quick look at that publication shows a number of cases in recent years raising this precise issue. Compare State v. Starr, 365 N.C. 314 (2011) (the trial court erred by failing to exercise its discretion in deciding whether to allow the jury to review testimony); State v. Long, 196 N.C. App. 22 (2009) (same), with State v. Garcia, __ N.C. App. __, 715 S.E.2d 915 (2011) (the trial court properly exercised its discretion in connection with the jury’s request to review testimony), State v. Stevenson, __ N.C. App. __, 710 S.E.2d 304 (2011) (same).
The take home point for the trial judge? When ruling on a jury’s request to review evidence, exercise discretion and be sure to state that you did. Nothing more is required than this: “In the exercise of my discretion, I [grant][deny] the request.” State v. Starr, 365 N.C. 314 (2011) (approving of this language; the trial court is not required to state a reason for denying access to the transcript).