Chapter 20 - § 20.2 SPECIAL ISSUES
| Jurisdiction | Colorado |
§ 20.2.1—Sequestration Requirements
Colorado
➢ General Rule for Sequestration. If the jury retires for deliberation, "it shall be kept together in a separate room or other convenient place under the charge of one or more officers until it agrees upon a verdict or is discharged." While the jury is deliberating, the officer shall keep the jury together, separate from other persons. C.R.C.P. 47(l).
➢ Standard. The court, in its discretion in any individual case, may modify the sequestration procedure by permitting a jury that is deliberating to "separate during the luncheon or dinner hour or separate for the night under appropriate cautionary instructions, with directions that they meet again at a time certain to resume deliberations again under the charge of the appropriate officer." C.R.C.P. 47(l).
➢ Abuse of Discretion. There was no abuse of discretion in failing to sequester jurors overnight after submission of all the evidence in the absence of a showing that the jury had been tampered with or improperly influenced. Nesbit v. City & County of Denver, 539 P.2d 509, 510 (Colo. App. 1975).
Federal
➢ Discretion of the Trial Court to Sequester. In addition to excluding inadmissible evidence, the trial judge may order sequestration of the jury or take any of a variety of protective measures in order to ensure that inadmissible prejudicial information about the defendant can be kept from the jury. Gannett Co. v. DePasquale, 443 U.S. 368 (1979); Hines v. United States, 365 F.2d 649, 650 (10th Cir. 1966) (trial court retains discretion in deciding whether to allow separation at any time during the course of the trial).
§ 20.2.2—What Is Allowed in the Jury Room
Colorado
➢ C.R.C.P. 47(m). "Upon retiring, the jurors shall take the jury instructions, their juror notebooks and notes they personally made, if any, and to the extent feasible, those exhibits that have been admitted as evidence." See also Settle v. People, 504 P.2d 680 (Colo. 1972) (holding that trial courts have discretion to manage a jury's access to evidence presented at trial). See generally People v. Wadle, 97 P.3d 932, 935 (Colo. 2004) ("exposure of a jury to information or influences outside of the trial process itself, whether or not that exposure occurred as the result of deliberate juror misconduct, may require reversal of a criminal conviction"). See also Rael v. People, 2017 CO 67, ¶ 24 (perceiving no abuse of discretion in the trial court's decision to grant the jury unfettered access to crime scene video, as distinguished from transcripts or testimony, during its deliberations).
➢ Juror Notebooks. "Juror notebooks shall be available during trial and deliberation to aid jurors in the performance of their duties." C.R.C.P. 47(t).
➢ Prejudicial Videotape. The trial court abused its discretion in permitting the jury to view a videotaped statement in the jury room without assessing the potential for undue prejudice, and a new trial was required as a result. DeBella v. People, 233 P.3d 664 (Colo. 2010).
➢ Deposition Transcript. Prior to the amendment of C.R.C.P. 47(m) in 2003 and case law interpreting that Rule, courts routinely banned depositions from the jury deliberation room. "[B]ecause jurors may give undue weight to the testimony contained within a deposition which they take with them and may not accord adequate consideration to controverting testimony received from live witnesses, it is the universal rule that depositions may not be reviewed by the jury on an unsupervised basis." People v. Montoya, 773 P.2d 623, 625 (Colo. App. 1989) (holding that trial court may allow jurors to review a videotape of a witness's previous statements under circumstances that will assure that such statements are not given "undue weight or emphasis"), overruled and superseded by rule as stated in Rael v. People, 2017 CO 67, ¶¶ 29-30; People v. McKinney, 80 P.3d 823, 829 (Colo. App. 2003), rev'd on other grounds, 99 P.3d 1038 (Colo. 2004) (holding that permitting written statements into the jury room was not an abuse of discretion under C.R.C.P. 47(m)). Under current interpretations of the Rule, Colorado courts have "consistently concluded that when considering a jury's access to a defendant's own admissible, out-of-court statements, no special protections against undue emphasis are required and the jury is entitled to unrestricted access to those statements." Rael, 2017 CO 67, ¶ 32.
➢ Physical Evidence. In a suit for divorce on the ground that the wife shot at the husband, it was within the discretion of the court to allow or refuse to allow the jury to have in the jury room the pistol and the coat worn by the husband. Fowler v. Fowler, 63 Colo. 451, 452-53, 168 P. 648, 649 (1917).
➢ Magnifying Glass. No error to permit the jury's use of a magnifying glass to examine an exhibit. Bradfield v. Ringsby Truck Lines, Inc., 546 P.2d 500, 504 (Colo. App. 1975), aff'd in part, rev'd in part, 563 P.2d 939 (Colo. 1977).
➢ Pleadings. The jury is not authorized to take pleadings into the jury room to be used as evidence of admissions by one of the parties. Spaulding v. Saltiel, 18 Colo. 86, 89-90, 31 P. 486, 487 (1892).
➢ Law Dictionary. The use of a dictionary to assist jurors in understanding legal terms is improper. Vento v. Colorado Nat'l Bank-Pueblo, 907 P.2d 642, 645 (Colo. App. 1995).
➢ Lawbooks or Statutes. Merely because a statute book was in the deliberation room and looked at by a juror, but which did not result in reading about offenses alleged against the defendant, did not amount to mistrial for juror misconduct. People v. Schrecongost, 796 P.2d 45, 48 (Colo. App. 1990), aff'd, 810 P.2d 1068 (Colo. 1991).
➢ Bible. A juror researching Bible passages during deliberations and sharing those with other jurors constituted inadmissible extraneous information during jury deliberations. People v. Harlan, 109 P.3d 616 (Colo. 2005).
➢ Dictionary. It is improper for jurors to consult a dictionary to assist in their understanding of legal terminology. People v. Willcoxon, 80 P.3d 817 (Colo. App. 2002), overruled on other grounds, People v. Adams, 2016 CO 74.
Federal
➢ Discretion of Trial Court. Submission of papers, documents, or articles, whether or not admitted into evidence, to the jury for view during trial or jury deliberations, accompanied by careful cautionary instructions as to their use and limited significance, is within the discretion of the trial court in order that it may guide and assist the jury in understanding and judging the factual controversy. United States v. Downen, 496 F.2d 314 (10th Cir. 1974).
➢ Probation Hearing Transcript. It was not abuse of discretion for the trial court to allow the transcript of a defendant's testimony from his state court probation violation hearing, in which he stated he handled firearms, to go to the jury during their deliberations. United States v. Washington, 596 F.3d 777 (10th Cir. 2010).
➢ "Ghillie" Suit Worn by Defendant. A ghillie suit the defendant allegedly wore during the murder was appropriately provided to the jury during deliberations, notwithstanding the "adverse irrational emotional response" it would evoke from the jury. United States v. Fields, 516 F.3d 923 (10th Cir. 2008).
§ 20.2.3—Reading Back of Testimony
Colorado
➢ Reading Back of Testimony. The court should consider whether reading back certain testimony would give it undue weight or emphasis, the difficulty involved in reading back the testimony, whether the jury's request is reasonably well-focused, and the amount of time the procedure would consume. People v. Balkey, 53 P.3d 788 (Colo. App. 2002).
➢ Reading Back of Testimony. Reading all or part of the testimony of one or more witnesses at the trial at the request of the jury is discretionary with the trial court. Settle v. People, 504 P.2d 680 (Colo. 1972).
Federal
➢ Discretion of Trial Court. It is within the sound discretion of the trial judge to determine whether the requested testimony should be read back to the jury. Tyler v. United States, 361 F.2d 862 (10th Cir. 1966).
➢ Denial of Request. The denial of the jury's request for a read-back of untranscribed trial testimony is within the trial court's discretion where the testimony was not so complicated or remote in time that the read-back would have served any compelling purpose. Lamon v. City of Shawnee, 972 F.2d 1145 (10th Cir. 1992).
§ 20.2.4—Additional Instructions
Colorado
➢ C.R.C.P. 47(n). "After the jury has retired for deliberation, if it desires additional instructions, it may request the same from the court; any additional instructions shall be given it in court in the presence of or after notice to the parties."...
➢ Additional Instructions; When Inappropriate. No additional or supplemental instruction to a deliberating jury is required when the original instructions adequately inform the jury and the giving of additional or supplemental instructions invites error. People v. Mendez, 897 P.2d 868 (Colo. App. 1995).
➢ Additional Instructions; When Appropriate. When the jury inquires about the meaning of a particular instruction, the court should provide a supplemental instruction sufficient to clarify the jurors' uncertainty. People v. Harding, 17 P.3d 183 (Colo. App. 2000).
➢ Additional Instructions; Deadlocked Jury. Upon learning that a jury is unable to agree on a verdict, the trial court may give an instruction informing the jury (1) to attempt to reach a unanimous verdict, (2) that each juror must decide the case for himself or herself after impartial consideration with the others, (3) to not hesitate to re-examine his or her views and change opinions if convinced they are incorrect, and (4) to not
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