Criminal Justice Section
Criminal Justice Magazine
Volume 19 Number 4
Supplemental Arguments: Good or Bad Idea?
By Stephen A. Saltzburg
Stephen Saltzburg, is the Wallace and Beverley University Professor at the George Washington University School of Law in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a Section delegate to the ABA House of Delegates.
Supplemental Arguments: Good or Bad Idea?
Suppose that after hearing the court’s instructions and closing arguments, a jury retires to deliberate and reports that it is deadlocked. Two questions can arise: (1) is it permissible for the trial judge to ask the jury to report on the areas in which there is disagreement and, (2) if so, is it permissible for the judge, upon learning what questions are dividing the jury, to permit counsel to make supplemental arguments to the jury directed at these questions?
In United States v. Ayeni, 374 F.3d 1313 (D.C. Cir. 2004), the United States Court of Appeals for the District of Columbia recently faced these issues. In that case, the defendant was an attorney who served as appointed counsel for criminal defendants in the District of Columbia Superior Court. The government charged the attorney and one of his investigators with participating in the following scheme: The attorney obtained thousands of reimbursement vouchers that superior court attorneys provide to witnesses required to testify in their clients’ cases and gave these vouchers to the investigator. The investigator gave them to friends and family members who were not witnesses. The friends and family members redeemed the $40 vouchers and gave the money (minus a commission) to the investigator who gave it to the lawyer.
The case was tried once and ended in a hung jury. The government then made a deal with the investigator who testified against the lawyer, along with six people who cashed the vouchers, superior court employees who issued the vouchers to the lawyer, and a handwriting expert who compared signatures on the vouchers with those of the lawyer and the investigator. Despite the cooperation of the investigator and the voucher-cashing witnesses, the jury reported after a few hours of deliberation that it was “hopelessly deadlocked.” The defendant moved for a mistrial, but it was denied.
The trial judge’s actions
Judge Richard Roberts invited—but, according to the court of appeals, did not require—the jury to identify for the court its areas of disagreement. The jury resumed deliberations and sent in three questions: What is the lesser count Mr. Ayeni is charged with? Why was the handwriting expert called to testify? Do the defense and prosecution agree that Mr. Ayeni’s signatures in the witness voucher record books are authentic?
Judge Roberts answered the jury’s first question with the consent of both sides. He told the jury that there were no lesser included offenses. Judge Roberts then indicated that he was inclined to give each side time to present supplemental arguments, partly because he could not provide the jury with a fair and adequate response to the second and third questions. The defense objected and again moved for a mistrial. After giving the parties a day to research and brief the issue, Judge Roberts decided to permit the parties to make 10-minute supplemental arguments with the defense going first. Before and after the supplemental arguments, Judge Roberts instructed the jury not to give undue emphasis to the arguments and to consider them along with the evidence, instructions, and other arguments it had heard.
The jury convicted the defendant on all counts. He appealed and argued that Judge Roberts abused his discretion in permitting supplemental arguments.
The majority on appeal
Writing for the court of appeals, Judge Raymond Randolph noted that the defendant made two arguments: (1) Supplemental arguments are never permitted because they subvert the principle that the jury’s deliberations are to remain inviolate. (2) Even if supplemental arguments are sometimes permissible, Judge Roberts abused his discretion in this case in allowing the arguments.
A majority of the court found it unnecessary to decide whether the defendant had waived the first argument, because it concluded that there had been an abuse of discretion. The majority quoted Judge Roberts’s explanation for permitting the arguments:
I could have attempted to fashion an answer that characterized the government’s position concerning the importance of the handwriting expert’s testimony, and the parties’ positions about the questioned signatures. The risk was that such an instruction from the Court, worded so as to avoid lapsing into advocacy, might not sufficiently or fairly capture the parties’ nuanced positions and would be unresponsive. Alternatively, I could have simply instructed the jurors that they had to rely upon their recollection of the evidence and arguments. That would have been of no help. Helpful and responsive answers required advocacy.
(Id. at 1315.)
Both the government and the defendant agreed that the third question asked by the jury could have been answered in one word—“no.” The majority found this persuasive. It also agreed with the defendant that Judge Roberts either could have collaborated with the parties to agree on a response to the jury’s second question (for example,“The handwriting expert was called to testify because the Government and the defendant dispute the authenticity of the signatures on the witness vouchers”), or he “could have told the jurors that the question was not one it could answer because trial strategy was not a proper concern of theirs.” (Id. at 1316.)
The majority recognized that a trial judge has broad discretion in controlling a jury during deliberations. It also recognized, however, that this discretion is not unlimited. Although it declined to address the argument that supplemental arguments are never permissible, the majority wrote as follows: “[W]e note our uneasiness with any use of supplemental arguments in response to a jury’s factual questions. In addition to being almost unheard of—the parties cite but one case in which they were employed—the use of such arguments is, for the reasons Ayeni suggests, troubling. Accordingly, we strongly discourage the use of this innovation by the trial judges of this circuit.” The majority observed that the government did not even try to make a harmless error argument. It wrote “[t]his is unsurprising, since there is no way to know whether the supplemental arguments produced the jury’s verdict.”
Judge Tatel’s concurrence
Judge David Tatel concurred. He noted that the supplemental argument procedure was “so unusual that its use in a federal criminal case has apparently never been the subject of a judicial opinion,” and concluded that such arguments do invade the sanctity of jury deliberations and intrude into its role as the exclusive trier of fact. He acknowledged that it was not necessary to decide the broader question in this case, but reasoned that “jury questions more difficult to answer than those at issue here may lead other judges to consider allowing supplemental arguments.” (Id. at 1317.)
Judge Tatel condemned supplemental arguments for the following reason:
Such arguments give attorneys who, in effect, have “peeked” into the jury’s deliberations—by listening to its questions and hearing its concerns—an opportunity to provide tailored responses to those questions, questions that concern factual matters and that the jurors formulated as part of their deliberative process. The arguments thus permit the lawyers to effectively participate in the jury’s deliberations, almost as if they were in the jury room itself. Indeed, had the supplemental arguments in this case been permissible, then nothing would have prevented the jury from submitting additional factual questions to the court, or the court from permitting additional rounds of such arguments, thus launching an ongoing dialogue between jury and lawyers.
(Id. at 1320.)
Judge Tatel rejected the government’s suggestion that there was precedent for Judge Roberts’s permitting supplemental arguments in cases in which such arguments were permitted after the judge provided supplemental legal instructions. Judge Tatel identified a fundamental difference in lawyers being permitted to address supplemental questions of law in response to new instructions by the judge and being permitted to respond to jury questions about facts.
He explained how the supplemental argument may have produced the convictions in this case. On cross-examination, the government handwriting expert said that she could not say for certain that any of the signatures in the voucher sign-out book were the defendant’s. Judge Tatel concluded that the jurors who had a reasonable doubt felt that this concession was fatal, especially since the prosecutor offered no explanation for it in his closing argument and failed even to mention it despite its emphasis in defense counsel’s closing. Once the jury asked its questions, Judge Tatel found that the prosecutor specifically addressed the concession, offered an explanation, and made it sound as though the explanation was obvious (which was why it had not been offered in the closing argument). Moreover, Judge Tatel noted that the prosecutor offered a new argument that, if the concession bothered the jury, it should forget about it because the expert was not needed to prove guilt beyond a reasonable doubt.
Judge Tatel observed that not every jury question requires a substantive answer. Judges can answer some questions and state that others cannot be answered, and judges can consider a permissible form of antideadlock charge. He emphasized that judges may not “attempt to avoid a mistrial by allowing attorneys to invade the jury’s deliberations and fact-finding process,” and added that “a mistrial . . . plays an important and healthy role in our criminal justice system.” (Id. at 1324.)
Having argued so strongly that supplemental arguments invade the province of the jury, Judge Tatel ended his opinion with something of a surprise— opening the door to such arguments by rule rather than exercise of a particular judge’s discretion:
I do not mean to suggest that supplemental arguments in response to factual questions necessarily infringe “vital constitutional protections.” Although doubting their validity, I am unprepared to foreclose the possibility that such arguments actually represent a worthwhile innovation. But given the extent to which they intrude into the jury’s role as exclusive fact-finder, and given that the nation’s judicial system has a two-hundred-plus-year history of conducting trials without them, I believe they should be adopted, if at all, not by individual judges in the middle of trials, but through some formal procedure, such as legislation or amendments to the rules of criminal procedure, the route Arizona took.
The issues addressed by Ayeni are new in most courts. In civil trials, prestigious groups have recommended use of supplemental argument. For example, Standard 14(f) of the ABA Civil Trial Practice Standards (1998) provides that a trial judge should should consider “[p]ermitting additional arguments by counsel after the jury has reached an impasse in deliberations.” Is the intrusion into the sanctity of the jury deliberations less in civil than in criminal cases? Time may tell.
Does Ayeni cast doubt on the practice of judges’ permitting juror questions during trial? Or, is it sufficient that deliberations have not begun and that jurors are presumed not to deliberate during the trial? Ayeni may inspire additional thought about when a question from the jury comes too late to be addressed by counsel. It is doubtful that the decision is the last word on the subject.
Perhaps the most interesting aspect of the case is that all three judges on appeal in Ayeni assumed that the answer to the first issue posed at the outset— whether or not it is permissible for the trial judge to ask the jury to report on the areas in which there is disagreement—was “yes” and the problem was the use of supplemental arguments. Why isn’t the judge’s inquiry itself an invasion of the sanctity of the deliberations? It is an important question that cries out for an answer.