Chapter 5 - § 5.5 • SUBMITTING CASE TO THE JURY; DELIBERATION AND VERDICT

• Jurisdiction: Colorado

§ 5.5 • SUBMITTING CASE TO THE JURY; DELIBERATION AND VERDICT

§ 5.5.1—Submitting Case to the Jury

After closing arguments, the court reads the final instruction (COLJI-Crim. E:23), reads the verdict forms, and swears the bailiff, using COLJI-Crim. C:15, as follows:

Do you solemnly swear or affirm under penalty of law that you will keep this jury together as ordered, that you will not permit any person to speak to them, that you will not speak to them yourself unless by order of the Court or to ask them if they have agreed upon a verdict, and that when they have agreed upon a verdict you will return with them into Court?

The court and counsel should ensure that all admitted exhibits are given to the jury to aid in deliberations and that no other extraneous material is sent back with the jury. The written instructions must also accompany the jury into deliberations.

§ 5.5.2—Jury Questions During Deliberations

The trial court should include COLJI-Crim. E:09 in its concluding general instructions to the jury. See the instructions found in § 5.7.1 in this Benchbook.

The basic rules for answering questions sent out by the jury during deliberations were expressed in Leonardo v. People, 728 P.2d 1252, 1255 (Colo. 1986). The Colorado Supreme Court indicated that the trial court should give additional instructions in answer to such questions unless: (1) the answer lies in an existing instruction, (2) the question is one of evidence within the sole province of the jury, or (3) the question concerns facts or law not in issue. See also Hood, "How to Respond to Jury Questions," 25 Colo. Law. 79 (Oct. 1996).

If the answer lies in an existing instruction, the trial court should simply refer the jury back to that instruction. Leonardo, 728 P.2d 1252; People v. Mendez, 897 P.2d 868, 871 (Colo. App. 1995) (jury question concerning mens rea properly answered by reference to original instruction). However, if the question from "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." Leonardo, 728 P.2d at 1256; Sanchez v. People, 820 P.2d 1103, 1107 (Colo. 1991); People v. Trujillo, 114 P.3d 27 (Colo. App. 2004).

Similarly, if the question indicates confusion about an instruction, the trial court may attempt to clarify the instruction. The question in People v. Hood, 878 P.2d 89, 97 (Colo. App. 1994), was whether the defendant's theory of the case instruction was evidence. Over objection, the trial court instructed the jury that instructions are not evidence and reminded the jurors that they must decide the case using the instructions previously given. The court of appeals held that the jury's question indicated that they were confused as to the purpose of the theory of the case instruction and that it was therefore proper to clarify the confusion.

The court must make sure that its answer does not amount to an expression of belief in a fact or in any other way usurp the jury's fact-finding function. People v. Gracey, 940 P.2d 1050, 1053 (Colo. App. 1996).

A defendant has a fundamental right to have counsel present when jury questions are being considered and answered. People v. Vega, 870 P.2d 549, 554 (Colo. App. 1993) (citing Leonardo, 728 P.2d 1252). Counsel may waive the right of the defendant to be personally present, and the defendant has a right to be present only to the extent that a fair hearing would be impaired by his or her absence. Id. (citing Luu v. People, 841 P.2d 271 (Colo. 1992)).

§ 5.5.3—Giving Evidence to the Jury During Deliberations

People v. Coit, 961 P.2d 524, 531 (Colo. App. 1997), held that the trial court did not err in refusing the jury's request to listen to the testimony of certain witnesses during deliberations, and held that the trial court should consider (1) whether reading testimony would unduly call attention to that testimony; (2) the difficulty of complying with the request; (3) whether the request is reasonably well-focused; and (4) the amount of time the procedure would consume. In Coit, the request was broad, difficult to comply with, and would have taken a great deal of time. See also Settle v. People, 504 P.2d 680 (Colo. 1972).

Oftentimes, jurors will ask to review audiotapes or videotapes. The court can allow a jury to review recordings or tapes by bringing the jury back into the courtroom to listen to or see the tapes. It is not error to allow the jury to have equipment to listen to or see the tapes in the jury room, even if testimonial in nature. People v. Isom, 140 P.3d 100, 105 (Colo. App. 2005); People v. McKinney, 80 P.3d 823, 829 (Colo. App. 2003), rev. on other grounds, 99 P.3d 1038 (Colo. 2004); People v. Russom, 107 P.3d 986, 989 (Colo. App. 2004). Frasco v. People, 165 P.3d 701 (Colo. 2007), has an excellent discussion of this issue and held that a trial court can exercise discretionary control over all jury exhibits allowed to go to the jury and that the trial court acted within its discretion in allowing jury access to videotape of child victim's prior statement during deliberations. The trial court has an obligation to ensure that juries are not permitted to use exhibits in a manner that is unfairly prejudicial to a party. Id.; People v. Riley, 380 P.3d 157 (Colo. App. 2015) (abuse of discretion to allow jury unfettered access to audio recording without first evaluating whether doing so would unfairly prejudice defendant). A trial court may admonish the jury not to give an exhibit undue weight or emphasis, or otherwise restrict its access to the exhibit. DeBella v. People, 233 P.3d 664, 666 (Colo. 2010) (abuse of discretion to allow unfettered access to videotape of child sexual assault victim's interview); People v. Johnson, 381 P.3d 348 (Colo. App. 2016) (court's restrictions on jury viewing video ensured jury not permitted to use exhibit in a manner...