You don't often see a felon-in-possession gun case reversed because the trial judge blew a discretionary call, but the Ninth Circuit did it yesterday. Whether or not you agree with the opinion, it helps fill out one section of your trial notebook page on jury glitches: the section you turn to when the jury wants testimony read back.
It's called U.S. v. Richard, and it has a common fact pattern: one traffic stop, four passengers, one gun stuffed into the back seat upholstery. Two of the passengers convinced police that the gun belonged to a third passenger, Jacquan Richard. (Richard had just told the police that the first two were a pimp and prostitute, so their loyalty to him may have faltered.)
Maybe he'd gained weight
The female passenger, Nicole Reeder, was the only one to say she'd seen Richard with the gun, and her testimony had its weak points:
Reeder had significant, ongoing difficulty identifying Richard in the courtroom as a passenger in Martin’s vehicle. She failed to do so on four successive attempts over the course of several minutes, despite being prompted with a photograph of Richard she had previously identified as the backseat passenger who possessed the gun and specifically directed to look at the defense table. On the fifth attempt, after additional prompting and direction, Reeder finally acknowledged that Richard looked like the passenger in Martin’s vehicle, explaining that he had apparently gained weight and changed his hairstyle.
During deliberations, the jury asked to hear Reeder's "testimony and cross-examination" again. The trial judge explained there was no transcript, only an audiotape, and told the jury, "you have to let us know what part you want to hear." The jury said they wanted to hear the part "right around the time she was being asked to identify the defendant."
"would make him 'look like an idiot'"
Oh, right around that time. Richard's counsel objected, and moved to have the entire testimony replayed. No luck:
The judge denied the motion as untimely, expressing concern that reversing course at that point and requiring the jury to hear all of Reeder’s testimony would make him "look like an idiot." He also rejected Richard’s argument that, because Reeder’s credibility was at issue, it was important for the jury to hear her entire testimony, and stated that he would also overrule the objection on the merits because it was not his "place" to instruct the jury that it was required to hear "the entire testimony of everybody, or of Ms. Reeder, or anyone else."
So the excerpt was read, without the part where Ms. Reeder admitted the other male passenger was her boyfriend, or the part where she had such trouble identifying Richard, or any of the cross-examination. The verdict was guilty.
What to do when the jury wants testimony
The Ninth Circuit reviewed its prior guidelines on reading testimony back, summarizing them as follows:
- "[I]t is preferable to have the testimony reheard (or reread) in open court with all parties present."
- "[T]he jury should ordinarily be provided with the witness’s entire testimony—i.e., direct and cross-examination, and should be admonished to weigh all the evidence and not focus on any portion of the trial."
- "[A] district court should consider the 'quantum of other evidence against the defendant' and 'the importance of the [testimony to be replayed] in relation to other evidence.'"
Richard's trial judge had followed the first guideline but not the others, the court said, so the conviction was reversed. There was a dissent: "[T]he majority's rigid, rule-based approach effectively usurps the trial court’s function."
Your new trial notebook page
How to use this case: take out a sheet of paper, write "If jury wants testimony read" at the top, and write down those three guidelines. If you practice in federal court in the Ninth Circuit, just write down the cites to Richard and the cases it discusses. If you practice elsewhere, take a few minutes sometime and find out what the relevant cases are where you are. Put it in your trial notebook, or start one. The page might never come in handy, but it might.
(Photo by Tim Dobbelaere at http://www.flickr.com/photos/storem/139950080/; license details there.)
