WPIC 151.00 Basic Concluding Instruction

Use bracketed material as applicable. A bracketed sentence may be used by courts that provide jurors with forms for submitting questions during their deliberations. A sample form is set forth in Appendix G.

Use WPIC 180.01 (Verdict Form A—General) with this instruction.

All jurors to be present whenever jury is deliberating. The WPI Committee added the final sentence of the first paragraph to the instruction in 2018. A defendant has a right under the Washington Constitution, article I, sections 21 and 22, to have all jurors deliberate upon each question before the jury. State v. Lamar, 180 Wn.2d 576, 327 P. 3d 46 (2014) (error for court to instruct jury to bring newly seated alternate juror “up to speed” on deliberations when alternate seated after deliberations had begun). However, mere speculation that during deliberations a juror might have left the jury deliberation room, for example to use the restroom, does not require reversal. State v. St. Peter, 1 Wn.App 2d 961, 963, 408 P.3d. 361, review denied 190 Wn.2d 1026 (2018). It is not manifest error for the trial court not to sua sponte instruct that they must deliberate only when all jurors are present. State v. Sullivan, 3 Wn.App.2d 376, 415 P.3d 1261 (2018). Nonetheless, the WPI Committee is satisfied that it is better practice to caution the jury that deliberations can occur only when all members of the jury are present.

Bias demonstrated by juror during deliberations. In 2018, the WPI Committee added the second paragraph to the instruction, which encourages all members of the jury to be responsible for ensuring that decisions are made based solely on the evidence and not upon preconceived biases or prejudices. The United State Supreme Court in Peña-Rodriguez v. Colorado, U.S. , 137 S.Ct. 855, 869, 197 L.Ed.2d 107 (2017), concluded that the general rule against impeaching a jury verdict must fall when a juror has indicated that he or she relied on racial animus or stereotypes in reaching the verdict. In Turner v. Stime, 153 Wn.App. 581, 222 P.3d 1243 (2009), the court concluded that statements of clear racial bias made by a juror concerning plaintiff's counsel do not “inhere in the verdict” and that it was proper for the trial court to grant a new trial upon proof that such statements were made.

For a discussion of other issues involving both conscious and unconscious bias, see the Comment to WPIC 1.01 (Advance Oral Instruction—Beginning of Proceedings).

Procedures for handling questions from a deliberating jury. The instruction explains for jurors, before they begin their deliberations, the steps they must take if they need to ask the court a question during their deliberations. When deliberating jurors send out such a question, the judge should number the question and review it with the lawyers outside the presence of the jury. The judge should respond to the question in open court or in writing (if the question relates to a point of law, the answer should be written).

If the jury is brought back into open court, the lawyers and the defendant should have the opportunity to be present. The judge should supplement any written response by telling jurors to consider the response together with all the other written instructions in the case. The judge should enter the question, response, and any objections in the record. The judge should carefully refrain from appearing to comment on the evidence, coerce a verdict, or be unfairly prejudicial to one side or the other. For more complete discussions of the issues involved in handling questions from deliberating jurors, see CrR 6.15(f); CrRLJ 6.15(e); Ferguson, 13 Washington Practice: Criminal Practice and Procedure §§ 4413, 4610, and 4611 (3d ed.) (regarding procedures for communicating with jurors during deliberations); State v. Koontz, 145 Wn.2d 650, 41 P.3d 475 (2002) (regarding repeating testimony for deliberating jurors); and WPIC 4.68 (regarding additional jury instructions), WPIC 4.68.01 (regarding changed instructions), WPIC 4.70 (regarding inquiring as to the probability of a verdict), and WPIC 4.81 (regarding deadlocked juries).

Question from deliberating jury—Presence of counsel and defendant. A defendant has a constitutional right to be present at every stage of a trial. This includes the right to be present for communications between the court and jurors after deliberations have begun. See State v. Rice, 110 Wn.2d 577, 757 P.2d 889 (1988) (constitutional right to be present for return of verdict); State v. Caliguri, 99 Wn.2d 501, 664 P.2d 466 (1983) (stating, in a case involving replaying testimony for a deliberating jury, that “[i]t is settled in this state that there should be no communication between the court and jury in the absence of the defendant”); State v. Shutzler, 82 Wash. 365, 144 P. 284 (1914) overruled on other grounds by State v. Irby, 170 Wn.2d 874, 886, 246 P.3d 796 (2011); State v. Burdette, 178 Wn.App. 183, 313 P.3d 1235 (2013) (constitutional right to be present for discussion of court's response to jury's communication requesting guidance about potential deadlock); see also U.S. v. Treatman, 524 F.2d 320 (8th Cir. 1975) (stating that “it is settled law that communications between the judge and the jury in the absence of and without notice to defendant and his counsel are improper,” and “[t]he appellant's right to be present is constitutionally guaranteed by both the Fifth and Sixth Amendments to the federal constitution”); see also CrR 3.4(a) (“defendant shall be present … at every stage of the trial … except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown”); CrRLJ 3.4(a) (same).

Bailiff's communications with deliberating jurors. Bailiffs are prohibited from any communications with deliberating jurors that may affect the case. CrR 6.7; CrRLJ 6.7; see, e.g., State v. Booth, 36 Wn.App. 66, 671 P.2d 1218 (1983) (court should have granted a mistrial after the bailiff had an unauthorized conversation with deliberating jurors about why a certain witness had not testified).

The court rule expressly allows the bailiff to ask jurors if they have agreed upon a verdict and to allow communication upon order of the court. CrR 6.7; CrRLJ 6.7. Moreover, the bailiff may communicate with deliberating jurors in order to take care of housekeeping needs, eating, lodging, personal arrangements, and family messages for jurors. See State v. Smith, 43 Wn.2d 307, 261 P.2d 109 (1953); State v. Carroll, 119 Wash. 623, 206 P. 563 (1922).

Improper communications with deliberating jurors—Harmless error. Washington courts have adopted a harmless error standard for determining whether improper communication between the court and a deliberating jury requires reversal. See State v. Caliguri, 99 Wn.2d 501, 664 P.2d 466 (1983); State v. Langdon, 42 Wn.App. 715, 713 P.2d 120 (1986); State v. Safford, 24 Wn.App. 783, 604 P.2d 980 (1979); State v. Russell, 25 Wn.App. 933, 611 P.2d 1320 (1980); State v. Saraceno, 23 Wn.App. 473, 596 P.2d 297 (1979).

Cross-reference. For a broader discussion regarding interaction between the court and deliberating jurors, see the Comment to WPIC 4.70 (Probability of Verdict).