Allow instant replay in jury trial?

• Author: Olson, Jonathan
• Position: Trial Lawyers Forum

Football does it; basketball and hockey are using it. It's instant replay. In football, the coach needs only throw a red flag onto the playing field in order to require the officials to review the previous play and ensure that the right call was made. The purpose of instant replay is clear: Sometimes a second look is necessary to get it right.

In the courtroom, the current equivalent to instant replay is the "read back" of testimony. Simply described, the jury begins deliberation, then requests that certain testimony be read back. However, a Florida jury holds no red flag; nor is it instructed that a read back is allowed, still less what can and cannot be read back.

In contrast, frequent is the motion hearing, violation of probation hearing, or sentencing in which the trial judge orders a copy of the hearing transcript in order to review testimony or to insert in an order the exact language used by a witness. This gives rise to a simple question: Why aren't Florida juries allowed the same luxury?

This article reviews the current state of the law on this question, including conflicts between the Third and Fourth district courts of appeal, as well as issues and conflicts within prior case law. It examines the options available to the court and parties when such a read back request is made. Finally it proposes the idea of playing prior testimony through the court's own recording system, along with a possible instruction to inform the jury of the luxury of a read back.

Current Law

In both the civil and criminal arenas, the trial court is given great discretion when a read back request is made. (1) Although given no red flag, a jury in a criminal case is armed with Florida Rule of Criminal Procedure 3.410:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to the counsel for the defendant.

No such rule exists within the rules of civil procedure. (2) Although the rule exists to guide the trial court, no instruction is given to tell the jury it has the right to make such a request, nor what language to use in making such a request.

There also are no statutory factors to guide the trial judge. In its report to the Supreme Court, the Jury Innovations Committee noted:

The Supreme Court should develop specific criteria for denying a read-back request. Such criteria could include relevant factors, such as whether the requested testimony is too lengthy or too vague. While the trial judge should have discretion in granting or denying the read-back of testimony, such a read-back should not be denied unless the court finds that one of the criteria, such as excessive length or vagueness, is met. (3)

As one can see through the case law cited below, the decision of the trial court to grant or deny a read back has generally been upheld as long as the court 1) does not tell or lead the jury to believe it is not allowed to have testimony read back; 2) does not have a portion of the testimony read back that is misleading or out of context; or 3) refuses to exercise its discretion. Without statutory authority, conflicts have arisen between district courts of appeals.

Conflicts in the Case Law

Two district courts of appeal have recently taken up the read back argument.

The Third District Court of Appeal recently decided Hazuri v. State, 23 So. 3d 857 (Fla. 3d DCA 2009), in which the jury, while in deliberations, sent a note to the judge that read: "Could they get transcripts from the trial?" The state attorney suggested the court inform the jury that it must rely on its own recollection of the testimony. The defense attorney requested the court inform the jury that it could have whatever portion of the transcript read back if the jury had a question about some evidence, but agreed the jury would not be allowed to have a set of transcripts from the trial. The trial court judge agreed with defense counsel that the jury could have portions of the transcript read, but determined he would instruct the jury to rely on its own collective recollection of the evidence. The defense objected. The defendant was found guilty and convicted of aggravated battery with a weapon. In a 2-1 holding, the Third District held that the criminal rules of procedure do not contain a provision allowing the jury to receive transcripts of trial testimony, and because the...