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WPIC 4.71 View—Before Visiting Site

11 WAPRAC WPIC 4.71Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 4.71 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Washington State Supreme Court Committee on Jury Instructions
Part I. General Instructions
WPIC CHAPTER 4.60. Miscellaneous Instructions During Trial
WPIC 4.71 View—Before Visiting Site
You will now be taken to view a site or area involved in this case. You will be under the supervision of the [the bailiff] [(insert other applicable staff person)] the entire time that you are away from this courtroom. You must remain together at all times until the bailiff excuses you.
You will be taken to view the site for the sole purpose of helping you to understand the evidence presented to you in this courtroom. What you actually see at the site and its surrounding area is not evidence. The physical features at the site may have changed. The conditions that prevailed at the time of the occurrence or other relevant times may have changed. You are to rely solely on the testimony of witnesses and on the exhibits admitted in the courtroom in deciding issues involving the physical characteristics or appearance of the site at the time of the events in question.
During the site visit, you may not ask questions or discuss the case among yourselves or with anyone else. The lawyers may not discuss the case or comment on the site, but may be allowed by the court to point out particular features.
This is not one of the written instructions on the law. It is an oral admonition and explanation to the jury, to be given immediately prior to leaving for the view.
After discussion with counsel, the court should select that point in time during the trial when the view will be most helpful to the jury's understanding of the evidence. The judge should give counsel an opportunity to be heard concerning the features to be pointed out.
After a view by the jury, counsel may wish the court to include WPIC 4.51 (View of Site) in its written instructions at the conclusion of the case.
A view of the site may help jurors to understand the evidence. See State v. Stoudamire, 30 Wn.App. 41, 46, 631 P.2d 1028 (1981). Whether to permit a view of the place in which any material fact occurred is within the discretion of the trial court. CrR 6.9; CrRLJ 6.9; RCW 10.58.080; State v. Land, 121 Wn.2d 494, 501–02, 851 P.2d 678 (1993) (discussing prior cases and holding that a judge may properly reject a requested jury view when the relevant characteristics of the site have been “amply demonstrated” by the evidence admitted at trial); State v. Bernson, 40 Wn.App. 729, 742, 700 P.2d 758 (1985) (affirming the trial court's granting of a jury site visit); State v. Stoudamire, 30 Wn.App. at 46 (same holding as in Bernson).
CrR 6.9 states that the defendant shall be present at the view. While this confers upon the defendant the right to be present, it would seem that the defendant could waive this right. There may be many occasions when a defendant might want to do so. As with the waiver of other rights in criminal proceedings, a careful record should be made to demonstrate that the right to be present at the view was waived intelligently and voluntarily.
The purpose of a jury view is not to take evidence. A motion for a view was properly denied when its only purpose would have been to let the jury make its own observation whether or not a broken window could be seen from the sidewalk after dark. State v. Fricks, 91 Wn.2d 391, 588 P.2d 1328 (1979).
The law that is the basis for WPIC 4.71 is now covered in detail in Tegland, 5 Washington Practice: Evidence Law and Practice, sections 402.44 and 402.45 (6th ed.).
[Current as of May 2019.]
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