241.1Jury Procedures During Trial
- Jurors’ notetaking, sequestration, visits to the crime scene, and requests to review testimony or exhibits (in the courtroom) during deliberation are all left largely to the judge’s discretion.
- Jurors may only examine exhibits in the jury room if all parties consent.
- Jurors may also pose questions to witnesses, in the judge’s discretion, but may not participate in the trial as witnesses themselves.
G.S. 15A-1228 provides that unless the judge directs otherwise (on his or her own motion, or upon the motion of any party), jurors are permitted to make notes during the trial and to take their notes into the jury room during their deliberations. Most judges who allow the jury to take notes will give them a cautionary instruction at the beginning of the trial and then again before they begin their deliberations, reminding the jurors that their notes can be used to refresh their recollection of the evidence but should not be given undue weight. See N.C.P.I.—Crim. 100.30 (“Making Notes by Jurors”).
Review of Exhibits/Testimony
If the jury has begun its deliberations and asks (by way of a written note or otherwise) to review certain testimony or other evidence, all the jurors must be brought back into the courtroom. G.S. 15A-1233(a); State v. Ashe, 314 N.C. 28 (1985). The judge must then exercise his or her discretion and decide whether to direct that requested parts of testimony be read out to the jury, or permit the jury to reexamine in open court any exhibits that had been admitted into evidence. See State v. Johnson, 346 N.C. 119 (1997); State v. Starr, 365 N.C. 314 (2011). The consent of the prosecutor or defendant is not required for either of these options. State v. Barnett, 307 N.C. 608 (1983). See also State v. Benson, 323 N.C. 318 (1988); State v. Eason, 328 N.C. 409 (1991) (no error in refusing to allow jurors to review testimony of expert when judge’s intent was to avoid emphasizing testimony of any particular witness). In his or her discretion, the judge may also have the jury review “other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.” G.S. 15A-1233(a).
We want the transcript….
Jurors who are used to seeing trials on television may assume it’s a simple matter to ask to “see the transcript” of a particular witness’s testimony to assist them in their deliberations. Obviously the official transcript of that testimony does not exist yet, and most judges will decline to incur the expense and delay that would be involved in generating an expedited transcript from the court reporter’s records, or risk the error that could result from asking the court reporter to read back a witness’s testimony from the reporter’s raw notes.
Nevertheless, the judge should avoiding telling the jury that he or she “can’t” provide the jury with a transcript, because that incorrectly suggests the judge is failing to exercise discretion in denying the request. See State v. Hinton, 226 N.C. App. 108 (2013). Instead, the judge should say something to the effect of “in my discretion I’m denying that request, and I instruct you to rely instead on your own recollection of the testimony.” For more information about this topic, see Jessica Smith, "Jury Review of the Evidence: Say the Magic Words," N.C. Criminal Law Blog, March 6, 2013.
The jury might also ask to take certain exhibits back into the jury room with them during its deliberations. The trial judge may allow this, in his or her discretion, but only if both the prosecutor and the defendant consent to the jury’s request. See State v. Huffstetler, 312 N.C. 92 (1984). If either party objects, it is error to send the exhibits into the jury room. See State v. Mumma, 372 N.C. 226 (2019); State v. Mason, 221 N.C. App. 223 (2012). Failure by the defendant or prosecutor to object to the jury’s use/review of evidence is considered implicit consent to the jury’s request and results in a waiver of objection. State v. Byrd, 50 N.C. App. 736 (1981). The judge must instruct the jury not to conduct experiments with the evidence, if such an instruction is requested by the defendant or prosecutor. Note that the trial judge errs if he or she responds to a jury’s request to review evidence by sending the requested evidence to the jury room instead of bringing the jury out to the courtroom first, as required by G.S. 15A-1233. See G.S. 15A-1233(b); State v. Harrison, 218 N.C. App. 546 (2012) (error, but defendant not prejudiced).
Ensuring that the jury examines the exhibits
Most attorneys will object to the jury’s request to examine an exhibit in the jury room, because there is no way of knowing why they want it or what they plan to do with it, and there is a risk that they could become confused or distracted by an irrelevant issue. If there is a particular reason why the prosecutor does want the jury to examine an item, the better technique is to ask the court for permission to publish it by giving it to the jury immediately after it is introduced, and then reminding the jury about it in closing. This method has the added benefit of ensuring that each juror will be examining the item at the point in the trial when it will make the strongest impression. (“Ladies and gentlemen, I want you to remember how sharp and heavy state’s exhibit #9 was. It clearly could have caused the type of injuries inflicted on the victim….”)
On motion of either party, or on the judge’s own motion, a judge has the discretion to order the sequestration of a jury. G.S. 9-17 (“The presiding judge, in his discretion, may direct any jury to be sequestered while it has a case or issue under consideration”); G.S. 15A-1236(b); (“The judge in his discretion may direct that the jurors be sequestered”); G.S. 15A-1214(j) (“In capital cases the trial judge for good cause shown may direct that jurors be selected one at a time…. These jurors may be sequestered before and after selection”). In advising the jury of the decision to sequester, the judge should not disclose which party (if any) requested it. The judge should order sequestration if the case is so notorious or the issues are such that, in the absence of sequestration, highly prejudicial matters are likely to come to the attention of the jurors; however, the decision is left to the judge’s discretion, and that decision will not be disturbed on appeal absent a showing of abuse of discretion. See State v. Looney, 294 N.C. 1 (1978) (question of whether to sequester the jury during the deliberations was within the discretion of the trial court); State v. Hyatt, 32 N.C. App. 62 (1977) (it is within sound discretion of trial court whether to require sequestration of jury during course of trial); see also State v. McLaughlin, 323 N.C. 68 (1988) (failure to sequester jurors was not prejudicial).
Sequestration can be either complete (with separate lodging facilities at night) or partial (during lunch or in vicinity of courthouse). See G.S. 15A-1236(b), Official Commentary. The trial judge should enter an order that the costs of jury sequestration must be paid by the state, as required by G.S. 9-17. Note that in a capital case, both prospective and sworn jurors may be sequestered. G.S. 15A-1214(j).
Jury Views – Crime Scene or Person
On motion of the defendant or the prosecutor, the trial judge has discretion to allow the jury to view a crime scene or other “place in question.” See G.S. 15A-1229(a). In exercising its discretion, the court may consider factors such as whether photos and testimony are sufficient to adequately convey the scene to the jury, along with the practical or logistical issues related to conducting the view. See, e.g., State v. Tucker, 347 N.C. 235 (1997) (court properly allowed jury to view police vehicle and see bullet holes in it, since the location of the bullet holes was relevant to determining defendant's intent and "the police vehicle view would be helpful to an understanding of this matter by the jurors"); State v. Simpson, 327 N.C. 178 (1990) (no abuse of discretion in declining to order jury view of crime scene where photos, diagrams, and witness testimony were sufficient to allow jury to visualize the scene); State v. Cathey, 162 N.C. App. 350 (2004) (trial court properly exercised its discretion in denying jury view of scene on grounds that it would unnecessarily delay the trial, it was extremely hot outside, and the viewing could not be easily accomplished for logistical reasons); State v. Davis, 86 N.C. App. 25 (1987) (no abuse of discretion in allowing jury view of art museum to directly observe the damage done to facilities and artwork).
If the court does allow a viewing of the crime scene, the jury must be transported to the scene (and back) in the custody of an officer, and the officer must not allow the jury to communicate with anyone (including the officer) about the trial. G.S. 15A-1229(a). The judge, jury, prosecutor, defendant, and defendant’s attorney must all be present for the jury view of the crime scene or other place in question. See State v. Harris, 333 N.C. 543 (1993) (trial judge, prosecutors, defense counsel, and defendant were all “present” at a house during jury view, even though jurors were permitted to roam independently around the home and were not held together as a group). The judge also has discretion to allow a witness to testify under oath at the scene and point out objects or physical characteristics material to the testimony. G.S. 15A-1229(b). That testimony must be recorded. Id.
The trial judge may similarly authorize the jury to “view” the defendant (or another person) by instructing the person to stand, assume a certain position, make a gesture, display a scar or tattoo, etc. See State v. Sanders, 280 N.C. 67 (1971) (defendant may be required on cross-examination to show scars to corroborate testimony); State v. Foster, 293 N.C. 674 (1977) (scar wounds of accomplice); State v. Brackett, 218 N.C. 369 (1940) (to determine resemblance of child to father-defendant); State v. Green, 55 N.C. App. 255 (1981) (view of child in bastardy case). The defendant can even be instructed to speak a particular phrase for purposes of voice identification or to put on a mask worn by the perpetrator without violating the defendant’s Fifth Amendment right against self-incrimination. See State v. Locklear, 117 N.C. App. 255 (1994); State v. Perry, 291 N.C. 284 (1976); State v. Suddreth, 105 N.C. App. 122 (1992).
Jury Participation in Trial
Though it’s very rare in practice, jurors are not expressly prohibited from asking their own questions of witnesses. The propriety of allowing a juror to directly question a witness is left to the sound discretion of the trial court. See State v. Jones, 158 N.C. App. 465 (2003), citing State v. Kendall, 143 N.C. 659 (1907). However, given the risks and unpredictability that comes from allowing a lay person to ask questions in court (soliciting hearsay, inviting prejudice, risk of offending the juror by objecting, etc.) the better practice is to require the juror to submit written questions to the trial judge. The judge, outside the juror’s the presence, can then hear and rule on any objections to the proposed question. If the question is permissible, the judge should be the one to ask the question of the witness. See State v. Howard, 320 N.C. 718 (1987) (noting that "Kendall is still good law in this state," but the preferred practice is for the judge to review the proposed question in writing, hear any objections from counsel, and "after ruling on any objections out of the presence of the jury, [the judge] should then ask the questions of the witness").
Jurors are, however, prohibited from being called as a witness in the same case in which they are sitting as jurors. See N.C. Rules of Evidence, Rule 606(a). For more information, see the related entry on Examination of Witnesses – Competency and Qualifications.