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WPI 6.19 Jurors Rehearing Trial Testimony—Cautionary Instruction

6 WAPRAC WPI 6.19Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 6.19 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part I. General Instructions

Chapter 6. Oral Instructions During Trial

WPI 6.19 Jurors Rehearing Trial Testimony—Cautionary Instruction

You have asked to rehear(identify the requested trial testimony). After consulting with the attorneys, I am granting your request.

In making this decision, I want to emphasize that I am making no comment on the value or weight to be given to any particular testimony in this case.

The testimony you requested will be [read to you] [replayed for you] here in the courtroom. You will hear it only one time.

After you have heard the testimony, you will return to the jury room and resume your deliberations. When you do, remember that your deliberations must take into account all the evidence in the case, not just the testimony that you have asked to rehear.

NOTE ON USE

This cautionary instruction should be used whenever the judge decides to grant a deliberating jury's request to rehear selected trial testimony.

Although judges have discretion in responding to these requests, the case law disfavors repeating trial testimony for deliberating jurors. See the Comment.

COMMENT

Repeating testimony, although discretionary, is disfavored. Judges have discretion when ruling on a deliberating jury's request to have testimony repeated for them. State v. Monroe, 107 Wn.App. 637, 27 P.3d 1249 (2001). This discretion exists whether the testimony is read for jurors from a trial transcript or is replayed for jurors from an electronic recording. See State v. Koontz, 145 Wn.2d 650, 655–58, 41 P.3d 475 (2002) (citing State v. Caliguri, 99 Wn.2d 501, 664 P.2d 466 (1983) as to rereading trial transcripts, and citing Ninth Circuit cases with approval as to replaying videotaped testimony). Although these precedents are criminal cases, the WPI Committee assumes that this discretion would also exist in civil cases. See, e.g., Annot., Right to Have Reporter's Notes Read to Jury, 50 A.L.R.2d 176, 178 (1956); see 75B Am.Jur.2d Trial § 1386 (2021) (including both civil and criminal cases).

Repeating trial testimony for deliberating jurors, however, is disfavored in the case law, at least for criminal cases. See Koontz, 145 Wn.2d at 654. The concern addressed in the case law is that rereading requested selections from a trial transcript can lead jurors to give undue emphasis to the selected testimony. Koontz, 145 Wn.2d at 654; State v. Monroe, 107 Wn.App. 637. Although not yet addressed in our state's appellate opinions, an additional concern is that reading the trial transcript selections to the jurors could constitute an unconstitutional comment on the evidence. See Const. art. IV, § 16.

These concerns may be heightened with regard to trial testimony that has been recorded by means of an audio-video recording. Replaying a video recording, in particular, “allows the jury to hear and see more than the factual elements contained in a transcript.” Koontz, 145 Wn.2d at 655. Moreover, the video record “does not duplicate the perspective or view of the jurors during trial,” it “may focus on things the jurors did not consider during trial,” and in essence it gives the jury a different view of the trial. Koontz, 145 Wn.2d at 654–55.

Court rules. CR 51(i) and CRLJ 51(i) each authorize a court to grant a jury's request to rehear or replay evidence. The rules state:

In its discretion, the court may grant a jury's request to rehear or replay evidence, but should do so in a way that is least likely to be seen as a comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes the possibility that jurors will give undue weight to such evidence.

Caution needed. Although judges have discretion to repeat testimony at a jury's request, this discretion needs to be exercised with care. The WPI Committee recognizes, in fact, that in many cases the request for repeated testimony should be denied.

For example, jurors often request the testimony of a single witness rather than requesting balanced testimony from multiple witnesses that more accurately reflects the positions taken by both parties. If the judge grants such a limited request, then one party's version of the case might be unduly emphasized, yet if the judge expands on the request by repeating the requested testimony along with other relevant testimony, then the judge runs the risk of improperly commenting on the evidence. Moreover, the judge needs to take into account the time necessary to locate and reread testimony for jurors, especially if the judge is supplementing the jury's request with additional testimony necessary for a balanced presentation of the evidence.

Additionally, if a jury's request is not sufficiently specific as to clearly indicate which testimony is being requested, the judge should require greater specificity, or deny the request altogether, rather than make subjective decisions as to which particular passages relate to the jury's request.

Because of the difficulty in resolving these issues, the WPI Committee recommends that the jurors be told at the beginning of the trial and before deliberations that they will rarely, if ever, be able to rehear testimony. See WPI 1.01 (Advance Oral Instruction—Beginning of Proceedings), WPI 1.08 (Concluding Instruction—For General Verdict Form), and WPI 1.11 (Concluding Instruction—For Special Verdict Form).

Procedures. If selections from the trial transcript are going to be read to jurors, the judge needs to carefully consider the proper procedures. The Washington State Jury Commission's Report to the Board for Judicial Administration (July 2000) emphasizes that appropriate safeguards must be in place before testimony is repeated:

Judges should give a cautionary instruction advising jurors to keep in mind all the evidence in the case, not just the testimony being reheard or replayed, and advising that the judge is not making any comment on the value or credibility of the testimony at issue. The testimony should be read or played to the jurors in the courtroom and should not be given to the jurors in written form to take to the jury room. Because of concerns over commenting on the evidence, the judge ordinarily should not select additional testimony for the jury to hear along with the requested testimony.

Jury Commission's Recommendation 40 (accompanying text).

State v. Koontz, 145 Wn.2d 650, 657, 41 P.3d 475 (2002), highlights additional procedural issues to consider when deciding whether to replay videotaped trial testimony:

Protections to prevent undue emphasis in the manner of video replay may include replay in open court, court control over replay, and review by both counsel before presentation to the jury. Other protections may include the extent to which the jury is seeking to review facts, the proportion of testimony to be replayed in relation to the total amount of testimony presented, and the inclusion of elements extraneous to a witness' testimony. A determination to allow videotape replay should balance the need to provide relevant portions of testimony in order to answer a specific jury inquiry against the danger of allowing a witness to testify a second time. It is seldom proper to replay the entire testimony of a witness. These considerations are not exhaustive …

Caveat. Washington's case law has not yet addressed these issues of repeating testimony in the context of a civil case, nor has it considered whether repeating testimony can constitute a judicial comment on the evidence. See Const. art. IV, § 16.

[Current as of December 2020.]

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