How to Respond to Jury Questions
| Publication year | 1996 |
| Pages | 79 |
| Citation | Vol. 25 No. 10 Pg. 79 |
1996, October, Pg. 79. How to Respond to Jury Questions
Questions from deliberating juries often come at a time when trial attorneys are mentally exhausted and without the time necessary to properly research how to respond. These circumstances can become the ingredients for reversible error. For defense attorneys, these jury questions may adversely affect what would otherwise be a favorable outcome. What follows is an effort to reduce the potential for error by providing an outline of Colorado law on how to handle criminal jury questions.
When a trial court receives a question from a jury, the first concern is not what response is appropriate, but who needs to be consulted. While the prosecutor's presence is typically requested, the defendant has the right to be present when the judge gives any instructions to the jury or responds to questions from the jury.(fn1) Implicit within this right is the right of defense counsel to argue to the court concerning possible responses to the jury's inquiries and to make objections, if desired, to those responses. Therefore, it is plain error for a trial judge to respond to an inquiry from a jury without first making reasonable efforts to obtain the presence of the defendant's counsel.(fn2)
It is presumed that the jury understands and will heed the trial court's instructions.(fn3) Consequently, no additional instruction is required when the original instructions adequately inform the jury.(fn4) Because of this presumption, a court always runs some risk of error when it formulates an additional instruction. This creates a predictable temptation simply to refer back to the original instructions for fear that a new instruction will cause more problems than it solves.
However, the failure to respond may be all the more perilous. A jury should be referred back to the original instructions only when it is apparent that the jury has overlooked some portion of the instructions or when the instructions clearly answer the jury's inquiry.(fn5) When a jury affirmatively indicates that it has a fundamental misunderstanding of an instruction it has been given, the basis for a presumption that the jury understands disappears.(fn6) Additional instruction then becomes mandatory:
[W]hen the jury indicates to the judge that it does not understand an element of the offense charged or some other matter of law central to the guilt or innocence of the accused, the judge has an obligation to clarify that matter for the jury in a concrete and unambiguous manner.(fn7)
Colorado appellate courts have repeatedly embraced the ABA Standards for Criminal Justice for guidance in determining how to respond to questions from criminal juries. Standard 15-4.3(A) is often relied on and states:
If the jury desires to be informed on any point of law, the trial court shall give appropriate additional instructions in response to the jury's request unless: (1) the jury may be adequately informed by directing their attention to some portion of the original instructions; (2) the request concerns matters not in evidence or questions which do not pertain to the law of the case; (3) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.(fn8)
This analytical framework provides a convenient way to examine the cases discussed under "Illustrative Cases," below.(fn9)
Even if additional instruction is not required, the giving of an additional instruction is not erroneous as long as the additional instruction itself is proper.(fn10) Similarly, although no additional instruction need be given on terms considered to be of common understanding, a trial court does not abuse its discretion in accurately doing so.(fn11)
However, the temptation to make inferences about the source of confusion can lead to...
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