Jury Deliberations

• Jurisdiction: Maryland

V. Jury deliberations

A. Items that the jury may take to the jury room for deliberations

1. Admitted exhibits

Under Md. Rule 4-326(b), the jury may take, to the jury room, exhibits that have been admitted into evidence. In Merritt v. State, 367 Md. 17, 33-35 (2001), the Court of Appeals held that prejudice was not presumed when exhibits not in evidence were given to the jury, but reversed, applying plain error, because the jury was given a search warrant affidavit.

2. Jury notes

Jurors may take notes during trial and may review those notes during deliberations. Md. Rule 4-326(a) and (b).

3. Charging document

The jury may review the charging document, unless the trial court, for good cause shown, rules otherwise. If requested, or on the court's own motion, the court may remove any count that is no longer applicable. Md. Rule 4-326(b). In Sherman v. State, 288 Md. 636, 640-42 (1980), the Court of Appeals held that any counts for which an MJOA was granted must be deleted.

4. Exhibits

The jury may review the exhibits, except depositions, which may not be taken to the jury room, unless both counsel and the court agree. Md. Rule 4-326(b). However, the trial court may prohibit exhibits from being taken into the jury deliberation room based on "good cause" shown. Md. Rule 4-326(a). In Wright v. State, 72 Md. App. 215, 218 (1987), the Court of Special Appeals affirmed the trial court's exclusion of videotapes of seven line-up sessions because they would cause the jury to give undue weight to that evidence.

In Adams v. State, 415 Md. 585, 598-602 (2010), the Court of Appeals held that it was an abuse of discretion for the court to refuse to allow the jury to take a videotape, admitted into evidence, into the jury room, without first making a "good cause" determination.

5. Jury instructions

ABA Standards for Criminal Justice—Discovery & Trial by Jury 243 (3d ed.) recommends that written jury instructions be sent to the jury room because written jury instructions improve the quality of jury deliberations and decrease the need for jury re-instruction. However, in Hebb v. State, 44 Md. App. 678, 683-85 (1980), the Court of Special Appeals held, although the jury is instructed, based on the MPJI-Cr, it was reversible error for the jury to have the jury instruction book in the jury room.

6. A copy of the law

In Jefferson v. State, 194 Md. App. 190, 211-12 (2010), the Court of Special Appeals held that the trial court did not err by sending portions of the handgun statute to the jury room during deliberations at the request of the jury.

B. Items that the jury may not have during deliberations

If the jury has impermissible items in the jury room, during deliberations, it may violate the defendant's right to a fair trial. Wright v. State, 131 Md. App. 243, 253-55 (2000). However, improper items in the jury room, in violation of Md. Rule 4-326, is subject to the harmless error rule. Merritt, 367 Md. at 30-31; Imes v. State, 158 Md. App. 176, cert. denied, 384 Md. 158 (2004). A mistrial based on juror misconduct during deliberations is within the trial court's discretion. In Charleau v. State, 200 Md. App. 549, 556-60 (2011), the Court of Special Appeals held that the trial court did not abuse its discretion in denying the defendant's request for a mistrial based on a juror's use of a magnifying glass while looking at an exhibit.

1. Un-admitted application for a search warrant

In Merritt, 367 Md. at 33-35, the Court of Appeals reversed the defendant's conviction because an un-admitted application for a search warrant, naming the defendant as the murderer, was permitted into the jury room during deliberations.

2. Newspaper articles not in evidence

The jury may not have newspaper articles that are not in evidence regarding the crime or the defendant. In Wright, 131 Md. App. at 253-54, the Court of Special Appeals held that, in order to demonstrate a denial of a fair trial, based on a newspaper article, the defendant must show that (a) the article was prejudicial; (b) a juror read the article; and (c) the juror's decision to convict was influenced by the article. The Court reversed sodomy and murder convictions because several members of the jury read newspaper articles detailing the defendant's prior criminal history, including sex crimes and murder.

3. Exhibits not admitted into evidence

In Imes, 158 Md. App. at 182-83, the defendant had been interviewed about a shooting. The tape of the interview was admitted into evidence, and the jurors reviewed the transcript of the interview while viewing the tape. The transcript was not admitted into evidence, but several jurors took their copies into the jury room during deliberations. The Court of Special Appeals held that this was an error, but it was a harmless error.

4. Charging document with "dead counts"

If the trial court gives the charging document to the jury during deliberations, "dead counts" in the charging documents must be removed, if requested by the defendant, and may be removed by the court sua sponte. Md. Rule 4-326(b); Harris v. State, 169 Md. App. 98, 105-07 (2006). In Herring v. State, 198 Md. App. 60, 76-81 (2011), the Court of Special Appeals held that when dead counts are removed, the counts on the verdict sheet do not need to be renumbered, and a verdict sheet listing count #1 and count #4 is permissible.

5. Jury instruction manual

In Hebb, 44 Md. App. at 680-85, the Court of Special Appeals held that, although the jury is instructed from the MPJI-Cr, it was reversible error for the jury to have that book during deliberations.

C. Jury requests and other communication

In Winder v. State, 362 Md. 275 (2001), the Court of Appeals stated:

The rules governing communications between the judge and the jury are basic and relatively

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