PERSONAL INJURY Corner
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PERSONAL INJURY Corner
Jury Requests for Readback of Testimony
TED BABBITT
In Philip Morris USA , Inc . v . Duignan , 42 Fla . L . Weekly D2426 ( Fla . 2nd DCA Nov . 15 , 2017 ), the Court was faced with the question of what , in a civil case , a trial judge should say to a jury when they ask for a read-back of testimony . This case was yet another Engle progeny case involving the death of a smoker . During the trial , the jury asked for the read-back of deposition testimony which had been read in evidence . The trial court responded that although such a read-back was “ not impossible ” it “ is not generally done ” and that the jury should rely on its “ collective recollection .” In reversing the trial court ’ s response to the jury question , the Second District relied on the case of Hazuri v . State , 91 So . 3d 836 ( Fla . 2012 ). Hazuri was a criminal case in which a jury sent a note to the Judge asking to see trial transcripts . The trial court told the jury only that the transcripts were not available and that it should rely on its “ collective recollection ” of the evidence to decide the case . The defendant was convicted and appealed the trial court ’ s refusal to allow the jury to have parts of the transcript read back . The Third District affirmed in Hazuri v . State , 23 So . 3d 857 ( Fla . 3rd DCA 2009 ). The Supreme Court quashed the Third District ’ s decision and held that the trial court had abused its discretion in failing to inform the jury of its right to request a read-back of testimony . At 2429 the District Court held
It began by observing that the jury did not request a readback – it only requested transcripts – but decided that the trial court was required to inform the jury of the possibility of a readback nonetheless . Id . at 845 . It tethered this holding to the core function of the jury , explaining that “ the role of a jury as a factfinder is of utmost importance ” and that “ a jury cannot properly fulfill its constitutionally mandated role if it cannot recall or is confused about the testimony presented in a case .”
Id . Because “[ a ] jury is composed of laypersons often unfamiliar with legal terms of art ,” the court explained , “ there should be no magic words required for a read-back request .” Id . Failing to require further instruction concerning a read-back after a jury has requested transcripts leaves the jury without the means to refresh its memory of witness testimony – testimony that could be critical to the outcome of the verdict .” Id .
The court thus adopted “ the following two rules : ( 1 ) a trial court should not use any language that would mislead a jury into believing read-backs are prohibited , and ( 2 ) when a jury requests trial transcripts , the trial judge should deny the request , but inform the jury of the possibility of a read-back .”
Prior to the Duignan case , the rule in Hazuri had never been applied in a civil case . In Duignan the Second District noted that since Hazuri was a criminal case Fla . R . Crim . P . 3.410 applied . That rule contained a one sentence statement that the trial court “ may ” read-back trial testimony to a jury . Nevertheless , the Second District in Duignan at 2429 holds
Although no rule of procedure governs readbacks in the civil context , a trial judge in a civil case must , to carry out his or her responsibility to order and facilitate the jury ’ s deliberations , enjoy a similar discretion about readbacks to that given a trial judge in a criminal case under rule 3.410 .
At the heart of the question presented to the jury in this case was the issue of whether a trial court abuses its discretion by misleading a jury into believing that testimony cannot be read back . At 2429 , the Duignan court holds
A jury in a civil case is thus no more able to “ properly fulfill its constitutionally mandated role if it cannot recall or is Confused about the testimony presented ,” see Hazuri , 91 So . 3d at 845 , than a jury in a criminal case is . Because Hazuri ’ s rules concerning the possibility of a readback when transcripts are requested seek to ameliorate that confusion and permit
PALMBEACHBAR . ORG 14 the jury to perform its core function as a trier of fact , we see no reason why those rules should not be applied in civil cases as well .
The holding in this case is that when a jury requests testimony be read-back , it is the trial court ’ s responsibility to accede to that request within reason . While the trial court has discretion upon this subject , that discretion does not extend to falsely implying to the jury that no testimony can be read back in a trial or that it is highly unusual to allow that to be done .
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