Chapter 9. Supplemental Instructions
9.01 Retention of Alternate Jurors
9.02 Response to Jury Questions (revised 11/2013)
9.03 Reading of Testimony
9.04 Sending Jury Home Overnight
9.05 Deadlocked Jury - Return for Deliberations (revised 2014)
9.06 Deadlocked Jury - Discharge (comment only)
9.07 Taking the Verdict (comment only)
9.08 Partial Verdict
9.09 Return To Deliberations After Polling
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9.01Retention of Alternate Jurors
At this time, the regular jurors will begin their deliberations in the case. Nevertheless, the alternate jurors are not excused. While the jury conducts its deliberations, you(describe what is expected of alternate jurors; e.g., you should continue to report to the courtroom at 9 a.m. each morning until I excuse you).
During this time, you must continue to observe all the restrictions I have instructed you on throughout the trial. That is, you must not discuss this case with anyone, including your fellow alternate jurors, the regular jurors, other people involved in the trial, members of your family, friends, or anyone else. Do not speak at all with any of the parties, the witnesses, or the attorneys. Do not permit anyone to discuss the case with you. Do not even remain in the presence of anyone discussing the case. If anyone approaches you and tries to talk to you about the case, please report that to me, through my courtroom deputy, immediately.
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While I do not know whether there is any news coverage of this case, do not watch or listen to any news reports concerning this trial on television or radio and do not read any news accounts of this trial in a newspaper or on the Internet. Do not use the Internet to search for information about the parties, witnesses, lawyers, or anything else associated with the trial. Do not visit the scene of the alleged offense or conduct any kind of investigation of your own. Should you be asked to participate in reaching a verdict in this case, the only information you will be allowed to consider in deciding this case is what you learned in this courtroom during the trial.
Comment
A question may arise concerning the role of the alternate jurors once the regular jurors have begun their deliberations. In 1999, Federal Rules of Criminal Procedure, Rule 24(c)(3) was amended to permit the trial court to retain alternate jurors after the regular jurors begin their deliberation. As amended, the rule provides:
Retaining Alternate Jurors. The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.
To enable to court to replace a regular juror with an alternate if necessary, the court should consider retaining the alternate jurors. The court must instruct the alternate jurors that they are subject to all the restrictions covered in Instruction 2.01(Recesses). The court must also instruct them that they are not to discuss the case with anyone, including the regular jurors and each other unless and until they replace a regular juror during deliberations.
As the rule reflects, the court may replace a regular juror with an alternate. Even once deliberations have begun, the defendant is not constitutionally entitled to have the original jurors render a verdict. Claudio v. Snyder, 68 F.3d 1573 (3d Cir. 1995). The trial court’s decision to remove a juror will be reviewed for abuse of discretion. See United States v. Kemp, 500 F.3d 257, 301-06 (3d Cir. 2007); seealso United States v. Jimenez, 513 F.3d 62 (3d Cir. 2008) (upholding refusal to strike juror and reaffirming abuse of discretion standard); United States v. Boone, 458 F.3d 321, 327-30 (3d Cir. 2006) (discussing removal of juror for refusal to deliberate or for nullification).
The only requirement if the court replaces a juror with an alternate is that the court instruct the jury to begin its deliberations anew.
(Revised 12/2009)
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9.02Response to Jury Questions
Members of the jury, I have received a note from you that says (read note from jury).
Let me respond by instructing you as follows: (response to note determined after consultation with counsel).
Keep in mind that you should consider what I have just said together with all the other instructions that I gave you earlier. All these instructions are important, and you should consider them together as a whole.
You should now return to the jury room and resume your deliberations.
Comment
See Sixth Circuit § 9.01.
In some cases, the jury will have a question while it is deliberating. The trial court has discretion concerning the appropriate procedure and response. United States v. Sriyuth, 98 F.3d 739, 751 (3d Cir. 1996). In United States v. Ulloa, 882 F.2d 41, 45 (2d Cir. 1989), the Second Circuit suggested a four-step response to jury questions:
(1) The jury’s question should be submitted in writing, (2) the question should be marked as a court exhibit and read into the record, (3) counsel should be afforded an opportunity to suggest appropriate responses, and (4) once the jurors are recalled, the question, if substantive, should be read into the record in their presence.
The court should then read its response to the question. The Committee recommends this approach. See United States v. Sriyuth, 98 F.3d 739, 751 (3d Cir. 1996) (noting that the court should read the response to the jury’s question, but finding no error where the court responded with written instructions). See also United States v. Woodson, 508 F. App’x. 189, 2013 WL 49761 (3d Cir. 2013) (non-precedential) (affirming trial court’s grant of new trial on ground that court answered jury question without first consulting with counsel).
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A jury question signals that at least some of the jurors are uncertain or confused, and the trial court’s response should address and seek to clear up the jurors’ uncertainty. See United States v. Combs, 33 F.3d 667, 669-70 (6th Cir. 1994). As a result, a supplemental instruction generally should neither provide just a yes or no answer nor merely reiterate earlier instructions. Combs, 33 F.3d at 669-70. Instead, the court must “tak[e] pains adequately to explain the point that obviously is troubling the jury.” Combs, 33 F.3d at 670. At the same time, “the court must ensure that, in responding, it does not stray beyond the purpose of jury instructions.” Combs, 33 F.3d at 670. In United States v. Tsai, 954 F.2d 155, 161 (3d Cir. 1992), the court noted that it would have been better had the trial court been “linguistically consistent in the original and supplemental instructions,” but also remarked that “[r]esponses to a juror's question are generally extemporaneous and ad hoc, and cannot be expected to be delivered in polished prose.” See also United States v. Perez, 531 F. App’x. 246, 2013 WL 3770659 (3d Cir. 2013) (non-precedential) (court’s refusal to answer jury question with instruction requested by defendant not an abuse of discretion); United States v. Davis, 2013 WL 1800037 (3d Cir. 2013) (non-precedential) (holding trial court did not commit error by reading two instructions in response to jury question); United States v. Wade, 451 F. App’x. 173 (3d Cir. 2012) (non-precedential) (discussing trial court’s supplemental instructions and finding no error).
In Ross v. District Attorney of the County of Allegheny, 672 F.3d 198 (3d Cir. 2012), the trial court received a request to speak with an individual juror after the jury had reported that it had reached a verdict but before the verdict had been returned. The court met in camera with the juror along with defense counsel, the prosecution, and the court reporter; the defendant was not present. During the in camera conference, the court instructed the juror on her obligation to vote to convict or not convict. The Third Circuit held that, although the trial court should be cautious about meeting with and instructing an individual juror apart from the other members of the jury, the trial court in Ross’s case had not committed error. The court emphasized that the juror never wavered in her assertion that the defendant was guilty and the trial court never commented on the specifics of the case. Ross, 672 F.3d at 211-13. The court also concluded that Ross’s Fifth Amendment rights were not violated by his absence at the conference because his presence would not have contributed to the fairness of the proceeding and may well have been counterproductive, given that the juror was expressing concern about possible retaliation. Ross, 672 F.3d at 211-13.
In some cases, the trial court may reopen the record in response to a jury question. See, e.g., United States v. Benjamin, 512 F. App'x. 170, 2013 WL 364901 (3d Cir. 2013) (non-precedential).
(Revised 11/2013)
9. 03Reading of Testimony
Members of the jury, you have requested that (describe what will be read; e.g., that a portion of (name of witness’s) testimony)be read. The court reporter will now read that to you.
Keep in mind that you should consider this testimony together with all the other evidence. Do not consider it by itself, out of context. Do not give it undue weight just because it is being read to you. Consider all the evidence together as a whole.
Comment
See Sixth Circuit § 9.02.
This instruction may be given if the court decides to permit testimony to be read to the jury.
In United States v. Zarintash, 736 F.2d 66, 69-70 (3d Cir. 1984) (citations omitted), the Third Circuit discussed the reading of testimony for the jury:
A trial court has broad discretion in deciding whether to accede to a jury’s request for a reading of testimony. But this discretion is based upon a limited, twofold rationale: first, that requests to read testimony may slow the trial where the requested testimony is lengthy; second, that reading only a portion of the testimony may cause the jury to give that portion undue emphasis. Thus, . . . a trial judge abuses his discretion where the refusal to read requested testimony is not supported by one of these reasons.
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In Zarintash, the court held that the trial court had committed reversible error by refusing the jury’s request to read the testimony of two witnesses. 736 F.2d at 71. In United States v. Bertoli, 40 F.3d 1384, 140001 (3d Cir. 1994), while expressing some concern that giving the jury the written transcript rather than reading the testimony would cause the jury to give it undue weight, the Third Circuit upheld the trial court’s decision to provide the jury with transcripts of the testimony of twelve witnesses. When responding to a request that portions of the testimony be read to the jury, the court should also consider three general concerns:
(1) any transcript provided to a jury should be accurate; (2) transcription of side bar conferences, and any other matters not meant for jury consumption, must be redacted; and (3) as a purely practical matter, a district court “should take into consideration the reasonableness of the jury’s request and the difficulty of complying therewith.”
United States v. Rodgers, 109 F.3d 1138, 1143 (6th Cir. 1997) (citations omitted). See also United States v. Shabazz, 564 F.3d 280, 28586 (3d Cir. 2009) (holding that trial court committed error by refusing to allow requested testimony to be read to jury but that the court cured the error by later giving the jury access to the transcript).
In Bertoli, the court noted that the trial court “should accompany the transcripts with a cautionary instruction to focus on the entire testimony and evidence.” 40 F.3d at 1401. This instruction cautions the jury to consider the testimony read to the jury along with all the other evidence. However, if the defendant does not request an instruction, failure to give an instruction is not plain error. See United States v. Harper, 314 F. App’x. 478 (3d Cir. 2008) (non-precedential).
(Revised 12/2009)
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9.04Sending Jury Home Overnight
We are about to stop for the (day)(week) and recess (until tomorrow)(until next week), and I want to remind you of the instructions I gave you earlier about your conduct as jurors.
During this recess and all other recesses, do not discuss this case with anyone, including your fellow jurors, other people involved in the trial, members of your family, friends, or anyone else. Do not speak at all with any of the parties, the witnesses, or the attorneys. Do not permit anyone to discuss the case with you. Do not even remain in the presence of anyone discussing the case. If anyone approaches you and tries to talk to you about the case, please report that to me, through my courtroom deputy, immediately.
While I do not know whether there is any news coverage of this case, do not watch or listen to any news reports concerning this trial on television or radio and do not read any news accounts of this trial in a newspaper or on the Internet. Do not use the Internet to search for information about the parties, witnesses, lawyers, or anything else associated with the trial. Do not visit the scene of the alleged offense or conduct any kind of investigation of your own. The only information you are to consider in deciding this case is what you learned in this courtroom during the trial.
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You are being entrusted with a great responsibility in being permitted to return to your homes (for the evening)(for the weekend). I am sure that each of you will make every effort to ensure that none of the restrictions is violated.
You must return to the courtroom at (fill in day and time). You must not begin your deliberations again until all twelve of you are present.
Comment
See Instruction 2.01 (Recesses). This instruction should be given when the jury is permitted to return home overnight or over a weekend during its deliberations.
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9.05Deadlocked Jury - Return for Deliberations
Members of the jury, I am going to ask you to return to the jury room and deliberate further. I realize that you are having some difficulty reaching unanimous agreement, but that is not unusual. And often after further discussion, jurors are able to work out their differences and agree.
It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Listen carefully to what the other jurors have to say, and then decide for yourself if the government has proved the defendant guilty beyond a reasonable doubt.
What I have just said is not meant to rush or pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry.
With that instruction, I will return you to the jury room. Thank you.
Comment
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See United States v. Brennan, 326 F.3d 176, 193 (3d Cir. 2003); United States v. Fioravanti, 412 F.2d 407, 419-20 (3d Cir. 1969); 6th Circuit § 9.04. See also United States v. Shannon, 766 F.3d 346,352 n. 9 (2014) (noting that instruction would not be erroneous merely because it deviates from model instruction but cautioning against unduly coercive language); United States v. Cocchiola, 358 F. App’x. 376 (3d Cir. 2009) (non-precedential) (affirming conviction where trial court gave instruction essentially identical to 9.05).
This instruction may be given if the jurors report that they are deadlocked. See United States v. Wecht, 541 F.3d 493 (3d Cir. 2008) (noting that court gave Instruction 9.05). When a jury reports that it is deadlocked or asks whether it must continue deliberating, the court has broad discretion in overseeing the jury’s deliberations. See United States v. Trala, 386 F.3d 536 (3d Cir. 2004); Government of Virgin Islands v. Gereau, 502 F.2d 914, 93536 (3d Cir. 1974) (noting that “[a]bsent peculiar evidence indicative of coercion, it is proper for a judge to instruct a deadlocked jury to continue deliberations and attempt to arrive at a verdict”). However, the court should approach the decision to instruct in such circumstances with caution. The court must also take steps to insure that no juror reveals either the numerical split on the jury or the position of the majority. See United States v. Fiorilla, 850 F.2d 172, 175 (3d Cir. 1988); Government of Virgin Islands v. Romain, 600 F.2d 435 (3d Cir. 1979).
The court may give a supplemental charge encouraging the jurors to continue their deliberations, but the charge cannot be used to coerce or “blast” a jury into reaching a verdict. United States v. Jackson, 443 F.3d 293 (3d Cir. 2006). The propriety of the supplemental charge will be assessed in the context in which it was given. Jackson, 443 F.3d at 297.
The Third Circuit has cautioned courts concerning instructions to a deadlocked jury and prohibits use of the charge approved by the United States Supreme Court in Allen v. United States, 164 U.S. 492 (1896), because it is too coercive. In United States v. Fioravanti, 412 F.2d 407, 419-20 (3d Cir. 1969), the court cautioned that Allen charges are a perennial source of problems and specifically stated:
Hereafter, in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error.
In United States v. Eastern Medical Billing, Inc., 230 F.3d 600 (3d Cir. 2000), the court reaffirmed Fioravanti and stated:
We recognize that when faced with a deadlocked jury, a district court may, in its discretion, provide further instruction to the jurors. In doing so, however, the court should do no more than encourage the jurors to fulfill their duty, and possibly draw their attention again to the same rules governing their task that were explained to them during the original instruction.
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230 F.3d at 615. In United States v. Burley, 460 F.2d 998, 999 (3d Cir.1972), the court condemned the supplemental charge as unduly coercive because it stressed the importance of considering the burdens and expense to the government if the case had to be retried. See also United States v. Shannon, --- F.3d ----, n. 9, 2014 WL 4401054 (2014) (noting that instruction emphasizing expense of retrial is likely to be coercive and require reversal). In Government of the Virgin Islands v. Hernandez, 476 F.2d 791 (3d Cir. 1973), the court held that it was plain error to instruct the jury during the charge in chief that the minority jurors should give special consideration to the views of the majority in order to reach a verdict. But see United States v. Graham, 758 F.2d 879 (3d Cir. 1985) (agreeing that instruction constitutes error, but disagreeing with plain error analysis). In United States v. Brennan, 326 F.3d 176, 193 (3d Cir. 2003), the court stated that telling the jury that it has to reach a decision is coercive and discussed the possible coercive effect of emphasizing the likelihood that continued deliberations would extend into a weekend or holiday.