Trial by Jury

In August 1993, the ABA House of Delegates approved a revised set of ABA Criminal Justice Standards on Trial by Jury. The “black letter” Standards were subsequently published along with commentary in a volume entitled ABA Standards for Criminal Justice: Discovery and Trial by Jury, 3rd Edition, © 1996 by the American Bar Association.

At the 2005 ABA Annual Meeting, the ABA House of Delegates approved a set of ABA Principles for Juries & Jury Trials. Some of those Principles concern matters not considered in the Trial by Jury Standards; some amplify the Trial by Jury Standards; and some alter the policy set forth in the Trial by Jury Standards. These are included in a separate annotated Addendum that includes links to relevant Principles.

CLICK HERE for the text of the publication containing the “black letter” Trial by Jury Standards and commentary. CLICK HERE for the Addendum.

PART I. THE RIGHT TO TRIAL BY JURY

Standard 15- 1.1. Right to jury trial

(a) Jury trial should be available to a party, including the state, in criminal prosecutions in which confinement in jail or prison may be imposed.

(b) The jury should consist of twelve persons, except that a jury of less than twelve (but not less than six) may be provided when the penalty that may be imposed is confinement for six months or less.

(d) This chapter does not apply to procedures of military justice tribunals.

Standard 15- 1.2. Waiver of trial by jury

(a) Cases required to be tried by jury should be so tried, unless jury trial is waived with the consent of the prosecutor.

(b) The court should not accept a waiver unless the defendant, after being advised by the court of his or her right to trial by jury and the consequences of waiver of jury trial, personally waives the right to trial by jury in writing or in open court on the record.

(c) A defendant may not withdraw a voluntary and knowing waiver as a matter of right, but the court, in its discretion, may permit withdrawal prior to the commencement of the trial.

(d) A defendant may withdraw a waiver of jury trial as a matter of right, and a prosecutor may withdraw consent to a waiver as a matter of right if there is a change in the trial judge.

Standard 15- 1.3. Waiver of full jury or of unanimous verdict*

(a) At any time before verdict, the parties, with the approval of the court, may stipulate that the jury shall consist of any number less than that required for a full jury.

(b) At any time before verdict, the parties, with the approval of the court, may stipulate that the verdict may be less than unanimous. The stipulation should be clear as to the number of concurring jurors required for the verdict to be valid.

(c) The court should not accept such a stipulation unless the defendant, after being advised by the court of his or her right to trial by a full jury, personally waives the right to trial by a full jury, or the right to a unanimous verdict, in open court on the record.

*(a) - See ABA Jury Principle 3(C) (providing that, in any event, a jury should not be comprised of fewer than 6 jurors).

*(c) - See ABA Jury Principle 3(C) (permitting the use of a written waiver of the defendant’s right to a full jury); ABA Jury Principle 4(C) (permitting waiver of unanimous decision either in writing or in open court).

Standard 15- 1.4. Change of venue or continuance*

The following standards govern the consideration and disposition of a motion in a criminal case for change of venue or continuance based on a claim of threatened interference with the right to a fair trial.

(a) Except as federal or state constitutional or statutory provisions otherwise require, a change of venue or continuance may be granted on motion of either the prosecution or the defense.

(b) A motion for change of venue or continuance should be granted whenever there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had. A showing of actual prejudice should not be required.

(c) If a motion for change of venue or continuance is made prior to the impaneling of the jury, the court may defer ruling until the completion of voir dire. The fact that a jury satisfying prevailing standards of acceptability has been selected should not be controlling if the record shows that the criterion for the granting of relief set forth in paragraph (b) has been met.

(d) It should not be a ground for denial of a change of venue that one such change has already been granted. The claim that the venue should have been changed or a continuance granted should not be considered to have been waived by the waiver of the right to trial by jury or by the failure to exercise all available peremptory challenges.

(e) After the court has determined, on the criteria set forth above, that a change of venue should be granted, the appropriate authority should designate the geographical location to which venue will be changed. In determining the location to which venue should be changed, the appropriate authority should consider the following factors:

(1) The nature and extent of pretrial publicity, if any, in the proposed venue;

(2) The relative burdens on the respective courts in changing to the proposed venue;

(3) The relative hardships imposed on the parties, witnesses, and other interested persons with regard to the proposed venue;

(4) The racial, ethnic, religious and other relevant demographic characteristics of the proposed venue, insofar as they may affect the likelihood of a fair trial by an impartial jury;

(5) Any other factor which may be required by the interests of justice.

* (e) - See ABA Jury Principle 9(C) (suggesting seating a “foreign jury” as another alternative to a change of venue).

PART II. JURY SELECTION

Standard 15-2.1 Selection of prospective jurors*

The selection of prospective jurors should be governed by the following general principles:

(a) The names of those persons who may be called for jury service should be selected at random from sources which will furnish a representative cross-section of the community.

(b) Jury officials should determine the qualifications for prospective jurors by questionnaire or interview, and disqualify those who fail to meet specified minimum requirements.

(c) All persons should be eligible for jury service who are eighteen years of age, are United Sates citizens whose civil rights have not been lost by reason of criminal conviction or whose civil rights have been restored, are residents of the geographical district in which they are summoned, and are able to communicate in English.

(d) A person should be excused from jury service only for mental or physical disability which, despite reasonable accommodation for the disability, substantially impairs the capacity to serve or prior jury service within the previous year. Temporary deferral of service should be permitted in cases of public necessity, undue hardship, temporary disability, or extreme inconvenience. Requests for excuse from service should be determined under the direct supervision of a judge.

*(a) - See ABA Jury Principle 10(E) (requiring that the court maintain demographic information as to its source lists, summonses issued, and reporting jurors); ABA Jury Principle 10(A)(1) (requiring annual updates and periodic review and improvement of jury lists, and emphasizing inclusiveness as well as representativeness); ABA Jury Principle 2(B) (listing prohibited bases for denying eligibility for jury service, which frustrate the goal of producing a venire representative of a cross section of the community); ABA Jury Principle 2(D) (recognizing that minimizing the term of service and coordinating efficient use of jurors is essential to achieving representative and inclusive juries); and ABA Jury Principle 10(C)(2)(a) (providing that those summoned for jury duty should be excused only if they meet specified criteria and specifying the nature of the “substantial impairment” that should warrant excusal).

*(c) - See ABA Jury Principle 2(A) (those eligible to serve should include convicted felons no longer under supervision even without restoration of rights, and non-English speakers when an interpreter is available). *(d) - See ABA Jury Principle 10(C)(2)(b) (recommending that courts be permitted to excuse from service those jurors who have served in at least one trial lasting one day or more during the preceding two years); ABA Jury Principle 10(C) (requiring that requests for excuses or deferrals and their disposition should be either written or on the record, and that specific uniform guidelines for determining such requests should be adopted by the court).

Standard 15-2.2. Juror questionnaires*

(a) Basic questionnaire

Before voir dire examination begins, the court and counsel should be provided with data pertinent to the qualifications of the prospective jurors and to matters ordinarily raised in voir dire examination.

(1) The questionnaire should include information about the juror's name, sex, age, residence, marital status, education level, occupational industry, employment address previous service as a juror, and present or past involvement as a party to civil or criminal litigation.

(2) Such data should be obtained from prospective jurors by means of a questionnaire furnished to the prospective jurors with the jury summons, and to be returned by the prospective jurors before the time of jury selection.

(b) Specialized questionnaire

In appropriate cases, the court, with the assistance of counsel, should prepare a specialized questionnaire addressing particular issues that may arise.

(1) The questionnaire should be specific enough to provide appropriate information for utilization by counsel, but not be unnecessarily embarrassing or overly intrusive.

(2) If questionnaires are made available to counsel prior to the day of the voir dire, the identity of the jurors may be protected by removing identifying information from the questionnaires.

(1) The jurors should be advised of the purpose of the questionnaire, how it will be used and who will have access to the information.

(2) All questionnaires should be provided to counsel in sufficient time before the start of voir dire to enable counsel to adequately review them before the start of voir dire.

*(c)(1) - See ABA Jury Principle 7(A)(4) (recommending that courts explain to jurors how information they provide will be secured, the length of time it will be retained, and who will have access to it).

Standard 15-2.3. Challenge to the array

The prosecuting attorney or the defendant or defendant's attorney may challenge the array on the ground that there has been a material departure from the requirements of the law governing selection of jurors.

Standard 15-2.4. Conduct of voir dire examination*

(a) Questioning of jurors should be conducted initially by the court, and should be sufficient, at a minimum, to determine the jurors' legal qualifications to serve.

(b) Following initial questioning by the court, counsel for each side should have the opportunity, under the supervision of the court and subject to reasonable time limits, to question jurors directly, both individually and as a panel.

(c) Voir dire examination should be sufficient to disclose grounds for challenges for cause and to facilitate intelligent exercise of peremptory challenges.

(d) Where there is reason to believe the prospective jurors have been previously exposed to information about the case, or for other reason are likely to have preconceptions concerning it, counsel should be given liberal opportunity to question jurors individually about the existence and extent of their knowledge and preconceptions.

(e) Jurors should be examined outside the presence of other jurors on sensitive matters or prior exposure to potentially prejudicial material.

(1) Sensitive matters are those matters which might be potentially embarrassing or intrusive into the juror's private life, feelings or beliefs, or those matters which if discussed in the presence of the jury panel, might prejudice or influence the panel by exposing other potential jurors to improper information.

(2) Examination of the prospective juror with respect to that juror's exposure to potentially prejudicial material should be conducted in accordance with ABA Standards for Criminal Justice relating to Fair Trial and Free Press.

(f) It is the responsibility of the court to prevent abuse of voir dire examinations.

*See ABA Jury Principle 7(A)(1) (establishing that voir dire should be open to public view subject to limited exceptions, including, but not limited to situations involving a threat to juror safety or an attempt to intimidate or influence the jury); ABA Jury Principle 11(B) (requiring that voir dire be on the record and that appropriate demographic data be collected).

Standard 15-2.5. Challenges for cause

(a) Each jurisdiction should develop a list of grounds, establishment of which will sustain a challenge to a particular juror for cause. The list of enumerated grounds should permit a challenge for cause on the ground that the juror has an interest in the outcome of the case, may be biased or prejudiced for or against one of the parties, is serving a criminal sentence, is on parole or supervised probation, has been charged with a criminal offense, or is unable or unwilling to hear the case at issue fairly and impartially.

(b) If, after the voir dire examination of a juror, the court is of the opinion that grounds for challenge for cause have been established, the court, upon either party's challenge of the juror for cause or upon the court's own motion after consultation with counsel, should excuse that juror from the trial of the case.

*(a) - See ABA Jury Principle 11(C) (listing “a familial relation to a participant” as an appropriate basis for disqualification, but not including being “charged with a criminal offense” as such a basis).

Standard 15-2.6. Peremptory challenges

(a) Peremptory challenges should be allowed in all cases, but in a number no larger than ordinarily necessary to provide reasonable assurance of obtaining an unbiased jury, but the court should be authorized to allow additional peremptory challenges when special circumstances justify doing so.

(b) The procedure for exercise of peremptory challenges should permit challenge to any of the persons who have been passed for cause.

(d) In cases involving a single defendant, both the defendant and the prosecution should have the same number of peremptory challenges.

Standard 15-2.7. Procedure for exercise of challenges; swearing the jury

(a) All challenges, whether for cause or peremptory, should be addressed to the court outside of the presence of the jury, in a manner so that the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of the court's ruling on the challenge.

(b) After completion of the voir dire examination and the hearing and determination of all challenges for cause, counsel should be permitted to exercise their peremptory challenges by alternately striking names from the list of panel members until each side has exhausted or waived the permitted number of challenges. A party should be permitted to exercise a peremptory strike against a member of the panel who has been passed for cause.

(c) The court should not require the attorney for the defendant to exercise any challenges until the attorney has had sufficient time to consult with the defendant, and in cases involving multiple defendants, with counsel for the codefendants, regarding the exercise of the challenges.

(d) No juror should be sworn to try the case until all challenges have been exercised, at which point all jurors should be sworn as a group.

Standard 15-2.8. Impermissible peremptory challenges*

Neither party should be permitted to use peremptory challenges to dismiss a prospective juror for constitutionally impermissible reasons.

(a) It should be presumed that each party is utilizing peremptory challenges validly, without basing those challenges on constitutionally impermissible reasons.

(b) A party objecting to the challenge of a prospective juror on the grounds that the challenge has been exercised on a constitutionally impermissible basis, establishes a prima facie case of purposeful discrimination:

(1) by showing that the challenge was exercised against a member of a constitutionally cognizable group, and

(2) by demonstrating that this fact, and any other relevant circumstances, raise an inference that the party challenged the prospective juror because of the juror's membership in that group.

(c) When a prima facie case of discrimination is established, the burden shifts to the party making the challenge to show a nondiscriminatory basis for the challenge.

(d) The court should evaluate the credibility of the proffered reasons. If the court finds that the reasons stated are constitutionally permissible and are supported by the record, the court should permit the challenge. If the court finds that the reasons for the challenge are constitutionally impermissible, the court should deny the challenge and, after consultation with counsel, determine whether further remedy is appropriate. The court should state the reasons, including whatever factual findings are appropriate, for sustaining or overruling the objection on the record.

*See ABA Jury Principle 11(F) (adding post- Batson third step, requiring that when a prima facie case of discrimination has been established, the burden shifts to the party making the challenge to show a nondiscriminatory basis for it; and providing that the trial court should be permitted to initiate a Batson inquiry sua sponte if it believes peremptory strikes are being exercised in a constitutionally impermissible manner).

Standard 15-2.9. Alternate jurors*

The court may impanel one or more alternate jurors whenever, in the court's discretion, the court believes it advisable to have such jurors available to replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.

(a) Alternate jurors should be selected in the same manner, have the same qualifications, be subject to the same examination and challenges, and take the same oath as the regular jurors. Jurors should not be informed of their status as regular jurors or as alternates until time for jury deliberation.

(b) A juror who becomes incapacitated during trial, in the discretion of the court, may be replaced by an alternate juror, who shall then have the same functions, powers, facilities and privileges as a regular juror.

*(a) - See ABA Jury Principle 11(G)(2) (recommending that, rather than not informing jurors of their status as regular jurors or as alternates until deliberation, selecting alternate jurors randomly at the time of deliberations).

PART III. CONDUCT OF THE TRIAL

Standard 15- 3.1. Defendant's presence at proceedings

The defendant should have the right to be present at every stage of the trial proceedings, including selection and impaneling of the jury, all proceedings at which the jury is present, and return of verdict.

(a) If a defendant, with knowledge that the trial is going on, voluntarily absents him or herself from the court, the proceedings may continue to verdict without the defendant's physical presence, and the defendant should be deemed to have waived the right to be physically present at the trial.

(b) No trial or proceeding on the merits of the case should commence without the physical presence of the defendant, unless the defendant has personally waived physical presence in the courtroom.

Standard 15- 3.2. Control, restraint or removal of defendants and witnesses

(a) During trial the defendant should be seated where he or she can effectively consult with counsel and can see and hear the proceedings.

(b) The court should not permit a defendant or witness to appear at trial in the distinctive attire of a prisoner, unless waived by the defendant.

(c) No defendant should be removed from the courtroom, nor should defendants and witnesses be subjected to physical restraint while in court unless the court has found such restraint necessary to maintain order. Removing a defendant from the courtroom or subjecting an individual to physical restraint in the courtroom should be done only after all other reasonable steps have been taken to insure order. In ordering remedial measures, the court must take all reasonable steps to preserve the defendant's right to confrontation of witnesses and consultation with counsel.

(d) If the court orders physical restraint or removal of a defendant from the courtroom, the court should enter into the record of the case the reasons therefor. Whenever physical restraint or removal of a defendant or witness occurs in the presence of jurors trying the case, the court should instruct those jurors that such restraint or removal is not to be considered in assessing the proof and determining guilt.

Standard 15- 3.3. Substitution of judge

If, by reason of death, sickness, or other disability, the judge before whom a jury trial has commenced is unable to proceed with the trial, another judge, upon certifying that he or she has familiarized himself or herself with the record of the trial, may proceed with and finish the trial.

Standard 15- 3.4. Opening statement and closing argument

(a) Opening statement

(1) Each party should be afforded the opportunity to make an opening statement for the purpose of explaining the issues and the evidence to be adduced at trial. The defense should have the option to present its opening statement either at the outset of the trial or at the beginning of the defense case in chief.

(2) In the opening statement, counsel should not allude to evidence to be presented unless, in good faith, there is a reasonable basis for believing that such evidence will be tendered and admitted in evidence.

(b) Closing argument

(1) Each party should be afforded the opportunity to make a closing argument before the jurors retire to consider the case.

(2) Procedures should be adopted relating to the timing and the order of the closing arguments.

Standard 15- 3.5. Note taking by jurors*

During the trial of the case, the jurors should be permitted to make notes and keep these notes with them when they retire for their deliberations.

(a) The notes should be used by the juror solely for the juror's purposes during the jury deliberations, and should be made available to other jurors solely at the discretion of the juror taking the notes. No person, other than the juror taking the notes, should have the right to view the notes.

(b) The jurors should be informed at the beginning of the trial that, at the close of the deliberations, all jurors' notes will be collected by the court and destroyed.

*See ABA Jury Principle 13(A) (adding that the court should ensure that jurors have the implements for taking notes, that the jurors should receive appropriate cautionary instructions on note-taking and note use, and that, in addition to requiring that the notes be collected and destroyed at the end of the trial, during the trial, the notes be collected each day and remain at the courthouse overnight).

Standard 15- 3.6. Method of making and ruling on motions and objections

(a) During trial, when in the presence of the jury, counsel should raise any motion, or any objection to the introduction of evidence, testimony of witnesses, or orders of the court, by stating only that counsel has a "motion" or an "objection," and by then stating the legal grounds for the motion or the objection.

(b) Any further argument or discussion that may be required or permitted by the court should be conducted outside the hearing of the jury.

(c) Rulings on motions and objections should be made by the court in the presence and hearing of the jury, but the reasons therefor should be stated outside the hearing of the jury.

(d) Objections, motions, statements of grounds, argument and discussion, the ruling of the court, and the reasons given by the court for its ruling, should all be made a part of the record.

Standard 15- 3.7. Evidence of prior convictions

When the defendant's prior convictions are admissible solely for the purpose of determining an enhancement of an offense or the sentence to be imposed, the jury should not be informed of them, either through allegations in the charge or by the introduction of evidence, until it has found the defendant guilty of the offense.

Standard 15- 3.8. Motion for judgment of acquittal

(a) After the evidence on either side is closed, the court on motion of a defendant or on its own motion should order the entry of a judgment of acquittal of one or more offenses charged if the evidence is legally insufficient to sustain a conviction of such offense or offenses. Such a motion by the defendant, if not granted, should not be deemed to withdraw the case from the jury or to bar the defendant from offering evidence.

(b) If the defendant's motion is made at the close of the evidence offered by the prosecution, the court may not reserve decision on the motion. If the defendant's motion is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.

(c) If the jury returns a verdict of guilty or is discharged without having returned a verdict, the defendant's motion may be made or renewed within a certain time, set by statute or rule, after discharge of the jury or within such further time as the court may fix. Such a motion is not barred by defendant's failure to make a similar motion prior to the submission of the case to the jury.

PART IV. JUDICIAL RELATIONS WITH JURY; JURY INSTRUCTIONS

Standard 15- 4.1. Control over and relations with the jury*

(a) The court should take appropriate steps ranging from admonishing the jurors to sequestration of them during trial, to ensure that the jurors will not be exposed to sources of information or opinion, or subject to influences, which might tend to affect their ability to render an impartial verdict on the evidence presented in court.

(b) The court should require a record to be kept of all communications received from a juror or the jury after the jury has been sworn, and he or she should not communicate with a juror or the jury on any aspect of the case itself (as distinguished from matters relating to physical comforts and the like), except after notice to all parties and reasonable opportunity for them to be present.

(c) At the outset of the case, the court should instruct the jury on the relationship between the court, the lawyers and the jury, ensuring that the jury understands that counsel are permitted to communicate with jurors only in open court with the opposing party present.

(d) When scheduling recesses and time for adjournment, the court should keep in mind that it is equally offensive to jurors to subject them to too stringent or too lenient a schedule, and should take all reasonable steps to avoid wasting the jurors' time.

*(d) - See ABA Jury Principle 12(A) (providing that jury trial proceedings with jurors present should take precedence over other proceedings, that the court should enforce time limits on the trial itself; and that jurors should be informed about the schedule).

Standard 15- 4.2. Right of judge to give assistance to the jury during trial*

(a) The court should not express or otherwise indicate to the jury his or her personal opinion whether the defendant is guilty or express an opinion that certain testimony is worthy or unworthy of belief.

(b) When necessary to the jurors' proper understanding of the proceedings, the court may intervene during the taking of evidence to instruct on a principle of law or the applicability of the evidence to the issues. This should be done only when the jurors cannot be effectively advised by postponing the explanation to the time of giving final instructions.

(c) The development of innovative mechanisms to improve juror comprehension of the issues of the case and the evidence presented should be encouraged consistent with the rules of evidence and the rights of the parties.

*See ABA Jury Principle 13(D) (recommending that the court exercise self-restraint and preserve an atmosphere of impartiality and detachment, but may question a witness if necessary to assist the jury; generally not question a witness about subject matter not raised by any party with that witness, unless the court has provided the parties an opportunity, outside the hearing of the jury, to explain the omission; and afford the parties an opportunity to develop the subject by further examination prior to its questioning of the witness).

Standard 15- 4.3. Judicial communication with jurors*

While it is appropriate for the court to thank jurors at the conclusion of a trial for their public service, such comments should not include praise or criticism of their verdict.

(a) All communications between the judge and members of the jury panel, from the time of reporting to the courtroom for voir dire until dismissal, should be in writing or on the record in open court. Counsel for each party should be informed of such communication and given the opportunity to be heard.

(b) After the conclusion of the trial and the completion of the jurors' service , the court may engage in discussions with the jurors. Such discussions should occur only on the record and in open court with counsel having the opportunity to be present. This standard does not prohibit incidental contact between the court and jurors after the conclusion of the trial.

(c) At the conclusion of the juror's service, with the concurrence of all the parties and the court, the judge may conduct a discussion with the jurors who agree to participate for the purpose of educating the court and counsel.

(d) Under no circumstances should the court state or imply an opinion on the merits of the case, or make any other statements that might prejudice a juror in future jury service.

(e) At the conclusion of the trial, the court should instruct the jurors that they have the right either to discuss or to refuse to discuss the case with anyone, including counsel or members of the press.

*(a) - See ABA Jury Principle 13(E)(3) (specifying that, concerning all communications between judge and jury from “the time of reporting to the courtroom for juror selection,” the parties should, in addition to having an opportunity to be heard, also be present).

*(e) - See ABA Jury Principle 18E (indicating courts should tell jurors they may ask the court for assistance if they are persistently questioned, over their objection, about their jury service).

Standard 15- 4.4. Jury instructions*

(a) Instructions to the jury should be not only technically correct but also expressed as simply as possible and delivered in such a way that they can be clearly understood by the jury. The instructions should not contain comments by the court reflecting the court's personal belief regarding credibility of certain witnesses, evidentiary value of specific items of evidence, or the guilt or innocence of the defendant. A written copy or audio version of the instructions should be given to the jury when it retires to deliberate.

(b) At the beginning of the trial, the court should give preliminary instructions to the jury deemed appropriate for their guidance in hearing the case, which may include instructions on the law of the case. Instructions on the law of the case should be given only after consultation with counsel.

(c) A collection of accurate, impartial, and understandable pattern jury instructions should be available for use in criminal cases in each jurisdiction. Whenever necessary, the pattern instructions should be modified or supplemented.

(d) At the close of the evidence or at such earlier time as the court reasonably directs, the courts should allow any party to tender written instructions and may direct counsel to prepare designated instructions in writing. Copies of tendered instructions and instructions prepared at the direction of the court should be furnished the other parties.

(e) At a conference on instructions, which should be held out of the hearing of the jury, and, on request of any party, out of the presence of the jury, the court should advise counsel what instructions will be given by providing the instructions in writing prior to their delivery and before the arguments to the jury. Counsel should be afforded an opportunity to object to any instruction. The grounds of any objection should be stated on the record. No party should be permitted to raise on appeal the failure to give an instruction unless such party shall have tendered it or made timely objection to its omission. No party should be permitted to raise on appeal the giving of an instruction unless such party objected thereto. In either instance, the party should state distinctly the matter to which the party objects and the grounds of the objection. However, if the interests of justice so require, substantial defects or omissions should not be deemed waived by failure to object to or tender an instruction.

(f) At the conclusion of the evidence, and before closing arguments in the case, the court may instruct the jury on the law of the case. At the conclusion of the closing arguments of counsel, the court should give the jury its final instructions on the law of the case, if not given earlier, and other appropriate closing instructions.

(g) All instructions, whether given or refused, should become a part of the record. All objections made to instructions and the rulings thereon should be included in the record.

*See ABA Jury Principle 13(D)(3)(b) (recommending that if the court asks questions of a witness, the court should instruct the jury that questions from the court, like questions from the parties, are not evidence; that questions by the court should not be given special weight or emphasis; and the fact that the court asks a question does not reflect a view on the merits of the case or on the credibility of any witness).

*(b) - See ABA Jury Principle 6(C)(1) (recommending that, immediately after the jury is empaneled, the court give preliminary instructions explaining the jury’s role, the trial procedures, the nature of evidence and its evaluation, the issues to be addressed, and the basic relevant legal principles, including the elements of the charges and claims and definitions of unfamiliar legal terms).

PART V. JURY DELIBERATIONS; RETURN OF VERDICT

Standard 15- 5.1. Materials to jury room

(a) The court in its discretion may permit the jury, upon retiring for deliberation, to take to the jury room a copy of the charges against the defendant; the court should permit the jury to take exhibits and writings that have been received in evidence, except depositions, and copies of instructions previously given.

(b) The court may refrain from sending certain material to the jury room if the court determines:

(1) that the material may be subjected to improper use by the jury; or

(2) that the material might be dangerous to jurors or to others.

(c) In sending any exhibits to the jury, the court should ensure that the evidentiary integrity of the exhibit is preserved.

Standard 15- 5.2. Jury request to review testimony

(a) If the jury, after retiring for deliberation, requests a review of certain testimony the court should notify the prosecutor and counsel for the defense, and allow all parties to be heard on the jury's request. Unless the court decides that a review of requested testimony is inappropriate, the court should have the requested parts of the testimony submitted to the jury in the courtroom. The court may permit testimony to be reread outside the presence of counsel, with the personal waiver of the defendant and the stipulation of the parties.

(b) The court need not submit testimony to the jury for review beyond that specifically requested by the jury, but in its discretion the court may also have the jury review other testimony relating to the same factual issue so as not to give undue prominence to the testimony requested.

Standard 15- 5.3. Additional instructions*

(a) After the jury has retired to deliberate, the court should have no communication of any kind with the jurors, until counsel have been notified of the proposed communication, and have had an opportunity to be heard on any issues arising.

(b) If the jury, after retiring for deliberation, desires to be informed of any point of law, the court should give appropriate additional instructions in response to the jury's request unless:

(1) the jurors may be adequately informed by directing their attention to some portion of the original instructions;

(2) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or

(3) the request would call upon the court to express an opinion upon factual matters that the jury should determine.

(c) The court should give additional instructions to the jurors, or re-read instructions initially given, only when the jury has been returned to the courtroom, with the defendant and counsel for the parties present, after notice to counsel and opportunity to be heard.

(d) The court need not give additional instructions beyond those specifically requested by the jury, but in its discretion the court may also give or repeat other instructions to avoid giving undue prominence to the requested instructions.

(e) The court may recall the jury after it has retired and give additional instructions in order:

(1) to correct or withdraw an erroneous instruction;

(2) to clarify an ambiguous instruction; or

(3) to inform the jury on a point of law which should have been covered in the original instructions.

(f) The provisions of standard 15-4.4(e) and (g) also apply to the giving of all additional instructions, except that the court in its discretion should decide whether additional argument will be permitted.

*(b) - See ABA Jury Principle 15(D) (providing that when jurors submit a question during deliberations, the court, in consultation with the parties, should supply a prompt, complete and responsive answer or should explain to the jurors why it cannot do so).

Standard 15- 5.4. Length of deliberations; deadlocked jury*

(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:

(1) that in order to return a verdict, each juror must agree thereto;

(2) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

(3) that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors;

(4) that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and

(5) that no juror should surrender his or her honest belief as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.

(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in section

(a). The court should not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.

*(c) - See ABA Jury Principle 15(C)(2) (recommending that a jury not be required to deliberate after normal working hours unless the court, after consultation with the parties and the jurors, determines that evening or weekend deliberations would not impose an undue hardship upon the jurors and are required in the interest of justice.).

Standard 15- 5.5. Entry of plea during deliberations

If the defendant should elect to enter a plea at any time after the jury has been sworn but before the jury has returned a verdict, the jury should be dismissed immediately upon acceptance of the plea by the court and should not be permitted to return a verdict.

Standard 15- 5.6. Polling the jury

When a verdict has been returned and before the jury has dispersed, the jury should be polled at the request of any party or upon the court's own motion. The poll should be conducted by the court or clerk of court asking each juror individually whether the verdict announced is his or her verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

Standard 15- 5.7. Impeachment of the verdict*

(a) Upon an inquiry into the validity of a verdict, no evidence should be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined.

(b) The limitations in section

(a) should not bar evidence concerning whether the verdict was reached by lot.

(a), a juror's testimony or affidavit should be received when it concerns:

(1) whether matters not in evidence came to the attention of one or more jurors, under circumstances which would violate the defendant's constitutional right to be confronted with the witnesses against him or her; or

(2) any other misconduct for which the jurisdiction permits jurors to impeach their verdict.

*See ABA Jury Principle 19(A) (allowing a juror’s testimony or affidavit to be received concerning, inter alia, whether “matters not in evidence came to the attention of one or more jurors,” without reference to whether they did so, as Standard 15-5.7 requires, “under circumstances which would violate the defendant's constitutional right to be confronted with the witnesses against him or her”).

American Bar Association TM American Bar Association

PART II. JURY SELECTION

PART III. CONDUCT OF THE TRIAL

PART IV. JUDICIAL RELATIONS WITH JURY; JURY INSTRUCTIONS

PART V. JURY DELIBERATIONS; RETURN OF VERDICT