The Florida Bar

Florida Bar Journal

Allow Instant Replay in Jury Trial?

Trial Lawyers

F ootball does it; basketball and hockey are using it. It’s instant replay. In football, the coach needs only throw a red flag onto the playing field in order to require the officials to review the previous play and ensure that the right call was made. The purpose of instant replay is clear: Sometimes a second look is necessary to get it right.

In the courtroom, the current equivalent to instant replay is the “read back” of testimony. Simply described, the jury begins deliberation, then requests that certain testimony be read back. However, a Florida jury holds no red flag; nor is it instructed that a read back is allowed, still less what can and cannot be read back.

In contrast, frequent is the motion hearing, violation of probation hearing, or sentencing in which the trial judge orders a copy of the hearing transcript in order to review testimony or to insert in an order the exact language used by a witness. This gives rise to a simple question: Why aren’t Florida juries allowed the same luxury?

This article reviews the current state of the law on this question, including conflicts between the Third and Fourth district courts of appeal, as well as issues and conflicts within prior case law. It examines the options available to the court and parties when such a read back request is made. Finally it proposes the idea of playing prior testimony through the court’s own recording system, along with a possible instruction to inform the jury of the luxury of a read back.

Current Law

In both the civil and criminal arenas, the trial court is given great discretion when a read back request is made.1 Although given no red flag, a jury in a criminal case is armed with Florida Rule of Criminal Procedure 3.410:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to the counsel for the defendant.

No such rule exists within the rules of civil procedure.2 Although the rule exists to guide the trial court, no instruction is given to tell the jury it has the right to make such a request, nor what language to use in making such a request.

There also are no statutory factors to guide the trial judge. In its report to the Supreme Court, the Jury Innovations Committee noted:

The Supreme Court should develop specific criteria for denying a read-back request. Such criteria could include relevant factors, such as whether the requested testimony is too lengthy or too vague. While the trial judge should have discretion in granting or denying the read-back of testimony, such a read-back should not be denied unless the court finds that one of the criteria, such as excessive length or vagueness, is met.3

As one can see through the case law cited below, the decision of the trial court to grant or deny a read back has generally been upheld as long as the court 1) does not tell or lead the jury to believe it is not allowed to have testimony read back; 2) does not have a portion of the testimony read back that is misleading or out of context; or 3) refuses to exercise its discretion. Without statutory authority, conflicts have arisen between district courts of appeals.

Conflicts in the Case Law
Two district courts of appeal have recently taken up the read back argument.

The Third District Court of Appeal recently decided Hazuri v. State, 23 So. 3d 857 (Fla. 3d DCA 2009), in which the jury, while in deliberations, sent a note to the judge that read: “Could they get transcripts from the trial?” The state attorney suggested the court inform the jury that it must rely on its own recollection of the testimony. The defense attorney requested the court inform the jury that it could have whatever portion of the transcript read back if the jury had a question about some evidence, but agreed the jury would not be allowed to have a set of transcripts from the trial. The trial court judge agreed with defense counsel that the jury could have portions of the transcript read, but determined he would instruct the jury to rely on its own collective recollection of the evidence. The defense objected. The defendant was found guilty and convicted of aggravated battery with a weapon. In a 2-1 holding, the Third District held that the criminal rules of procedure do not contain a provision allowing the jury to receive transcripts of trial testimony, and because the jury requested “transcripts” as opposed to a “read back” of the testimony, the trial court did not abuse its discretion.

In dissent, Judge Cope argued that the response from the trial court mislead the jury into thinking a read back was prohibited. Further, he argues the majority was “niggling nitpicking” with its decision: “The majority opinion overlooks the fact that jurors are composed of lay persons. If they knew the technical details of the law, then they would have written a better note. But the substance of the question was whether the jury could review the testimony.”

Two months later, the Fourth District issued a decision in Barrow v. State, 27 So. 3d 211 (Fla. 4th DCA 2010), in which the trial court was deemed to have abused its discretion for not fully instructing the jury. Much like the Hazuri jury, the Barrow jury sent out a note 10 minutes into its deliberation requesting transcripts of witnesses’ testimony.4 The trial judge told the parties he would tell the jury there were no trial transcripts. The state attorney suggested the trial judge inform the jury a read back could be requested. The trial judge stated, “No, I don’t do read backs.” The defense attorney then requested that the trial judge instruct the jury on the right to have a read back. Again the trial judge denied the request, and instead sent a note to the jury reading: “There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.” On appeal, the Fourth District acknowledged that a trial judge has wide latitude in determining the appropriateness of a read back. It held, however, that the trial judge abused his discretion when he failed to instruct the jury that they may ask to have testimony read back to them. The appellate court further acknowledged the Third District’s holding in Hazuri, but agreed with Judge Cope’s dissent. In the end, the Fourth District certified a conflict with the holding of the Third District.

The Hazuri case is not alone in such “niggling nitpicking.” In Roper v. State, 608 So. 2d 533 (Fla. 5th DCA 1992), the jury, during deliberations, asked to “see” the victim’s cross-examination testimony. The trial judge told the jury there was no way the jury could “see” such testimony. The Fifth District reversed, however, holding that the trial judge’s statements may have led the jury to conclude that the only recourse was to rely upon its collective recollections and remembrances.

Other decisions suggest that a read back is required to clear up any jury doubt about the testimony requested to be read back. In Penton v. State, 106 So. 2d 577 (Fla. 2d DCA 1958), for example, the court held that failing to reread testimony was error and reversed a conviction.

We realize that the question is a close one but we also realize that there was considerable doubt in the jury’s mind concerning the very testimony which they wished read to them and this testimony was material to the case. The testimony was taken down and the failure of the court to have it read back to the jury at their request was error, and by the very nature of the testimony the error was not harmless, as it was in Bates v. State, 102 So. 2d 826 (Fla. 2d DCA 1958), supra, and Nelson v. State, 148 Fla. 338, 4 So. 2d 375, (Fla. 1941), supra.

Similarly, in Avila v. State, 781 So. 2d 413 (Fla. 4th DCA 2001), the trial court was deemed to have abused its discretion when, after the jury requested a read back of alibi testimony, the court informed the jury there were no transcripts and that jury members should rely upon its collective recollection. The court did not mention that a method of read back was available. Thereby, the jury was led to believe it was not allowed such a read back.5

However, in Johnson v. State, 10 So. 3d 680 (Fla. 3d DCA 2009), the Third District Court of Appeal held that although the trial judge erred in instructing the jury that, “the law did not permit him to read back testimony,” the error was harmless due to the overwhelming evidence of guilt.6

One decision held that a failure to grant the jury’s request for a read back constituted fundamental error. In LaMonte v. State, 145 So. 2d 889 (Fla. 2d DCA 1962), the jury requested testimony be reread on matters dealing with the location of a found rubber mask and whether there was a rear door. The trial court replied that 1) it was not able to comment upon the evidence; 2) it could not tell the jury what was in the record; and 3) the jurors had heard the testimony. The appellate court held that such instruction was fundamental error. The appellate court found the case highly circumstantial and, therefore, the jury’s question “most important.”

The trial court is allowed to read back only portions of the proceedings, as long as such a read back is not misleading. In Garcia v. State, 644 So. 2d 59 (Fla. 1991), the trial court did not abuse its discretion when portions of the trial testimony were read back to the jury. The jury, on three occasions, requested portions of the testimony read back. In answering the requests, the trial judge determined which portions of the testimony were relevant and corrected a transcription error. The Florida Supreme Court deemed the portions of testimony read back directly related and responsive to the jury’s request and not misleading nor placing undue emphasis on any particular statements.7

Although questions concerning the read back of testimony have long been a concern for the courts, the issue was especially burdensome in the era of typed and written transcripts. Consideration for the court reporter was considered a valid reason for a judge to refuse a read back of testimony. For example, in DeCastro v. State, 360 So. 2d 474 (Fla. 3d DCA 1978), the court found no abuse of discretion in disallowing a read back of trial testimony when the trial judge did not believe the read back was practical because the testimony was extensive and the court reporter was physically exhausted. In Miller v. State, 605 So. 2d 492 (Fla. 3d DCA 1992), the court found no abuse of discretion in denying a read back of testimony because the court reporter did not have her notes with her. And in Simmons v. State, 334 So. 2d 265 (Fla. 3d DCA 1976), the trial court did not abuse its discretion in refusing to have testimony read to the jury when the typewritten copy of testimony specifically requested by the jury was not available and the court reporter, after long hours of work, was physically incapable of reading the approximate seven hours of testimony back to jury.

Today, however, we live in an electronic age. Nearly every courtroom is equipped with microphones and video cameras. In another room, a digital database is recording every statement, objection, or utterance from each witness, judge, attorney, and clerk.8 With a mere press of a button, a judge can replay testimony. Although a read back from the court reporter is still an option, in the modern era, trial courts have a far better and easier option through the playing back of testimony.

Options Available to Courts and Parties
As discussed above, the trial judge is left with great discretion whenever a read back request is made by the jury. The Supreme Court has approved both civil and criminal instructions that are to be given once a read back request is made by a jury.9 For civil trials, the language is found in §7.3(b) of the Florida Civil Jury Instructions. Its criminal counterpart is §4.4 of the Florida Criminal Jury Instructions. Both have identical language which reads as follows:

1. Read-back Granted as Requested
Members of the jury, you have asked that the following testimony be read back to you: (describe testimony) The court reporter will now read the testimony which you have requested.
2. Read-back Deferred
Members of the jury, I have discussed with the attorneys your request to have certain testimony read back to you. It will take approximately (amount of time) to have the court reporter prepare and read back the requested testimony.
I now direct you to return to the jury room and discuss your request further. If you are not able to resolve your question about the requested testimony by relying on your collective memory, then you should write down as specific a description as possible of the part of the witness(es)’ testimony which you want to hear again. Make your request for reading back testimony as specific as possible.
3. Read-Back Denied
Members of the jury, you have asked that the following testimony be read back to you: (describe testimony)
I am not able to grant your request.

Whenever a request for a read back is made, the trial court is required to inform all parties. In discussing the failure to provide such notice, the Florida Supreme Court stated: “[A] [R]ule 3.410 violation constitutes per se reversible error.”10 If the trial court allows a read back, it must be done in open court.11

As with most issues, if a party objects to the read back, either in total or in part, a contemporary objection must be made to preserve the issue for appeal.

Proposed New Jury Instructions
Given the conflicts within the case law, as well as the simplicity of replaying recorded testimony,12 the author proposes that at the close of evidence, a new instruction should be read to the jury in order to end the disputes in the above cases. In both civil and criminal cases, the instruction would be titled, “Read Back of Testimony”: “If any of you have questions during your deliberations about any part of the testimony and wish to have parts of the testimony read back to you, please make such a request in writing, giving it to the bailiff which will then be reviewed by me and the parties.”13 With such an instruction, the jury instantly would be aware of their right to a read back, thus, ending any “niggling nitpicking.”

What arguments would prevent the playback of testimony? First, a read back of testimony may place undue influence on this testimony. In order to remedy this issue, an amendment to Criminal Instruction 4.4 and Civil Instruction 7.3(b) would be necessary. The amendment would read: “I am granting your request to read back (witness(es) name(s)). granting your request for a read back of this testimony I do not intend to emphasize it over any other part of the evidence presented. Further, you are not to give it undue emphasis simply because I have granted a read back.”14

Second, the read back could be misleading. However, playing the witness’ recorded testimony solves this problem. A court reporter’s reading lacks inflection and emotion. But the actual recording holds every word, pause, stutter, and ruling by the court. A replaying presents not only the actual words used, but how they were spoken by the witness.

Amendments to Criminal Instruction 4.4 and Civil Instruction 7.3(b) would resolve the disputes in the case law regarding the jury’s ability to have testimony read back. Such amendments would arm the jury with a proverbial red flag — the ability to review the testimony and get it right.

1 See Florida Power and Light Co. v. Robinson, 68 So. 2d 406 (Fla. 1953) (citing Routh v. Williams, 193 So. 71 (Fla. 1940)); Francis v. State, 808 So. 2d 110 (Fla. 2001); Avila v. State, 781 So. 2d 413 (Fla. 4th D.C.A. 2001).

2 Such discretion appears to have first been given to the trial court in Barton v. State, 73 So. 230 (1997), in which the Supreme Court, citing holdings from various other jurisdictions, determined a read back was within the discretion of the trial court. However for a short time, this discretion was taken from the trial judge. In Furr v. State, 9 So. 2d 801 (Fla.1942), the jury announced that certain jurors contended part of the testimony was one thing and others contended it was another thing. The Supreme Court held that it was the duty of the trial court to ascertain which witness it was whose testimony was the subject of disagreement and, if that witness had given material testimony, to then have the testimony of such witness read to the jury. In its holding, the Supreme Court reviewed §220 of the Florida Criminal Procedure: “Jurors May Return Into Court Room For Instruction. After the jurors have retired to consider their verdict if they desire additional instruction upon any point of law arising in the cause or to have any testimony, about which they are in doubt or disagreement, read to them, they shall, upon their request, be conducted into the court room by the officer who has them in charge and there the court shall give them such additional instruction or shall order such testimony read to them. Such instruction may be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.” Florida Criminal Procedure Act, Acts 1939 (emphasis supplied). See also Nelson v. State, 4 So. 2d 375 (Fla. 1941) (it is the duty of the trial court to have testimony read back; however, in that case, the error was deemed harmless).

3 In re Amendments to The Florida Rules of Civil Procedure, The Florida Rules of Criminal Procedure, The Standard Jury Instructions in Civil Cases, and The Standard Jury Instructions in Criminal CasesImplementation of Jury Innovations Committee Recommendations, 967 So. 2d 178 (Fla. 2007).

4 The jury requested transcripts of five different witnesses.

5 See also Vasquez v. State, 830 So. 2d 929 (Fla. 4th D.C.A. 2002). In Vasquez, after only 10 minutes of deliberation the jury requested to review the testimony of the defendant’s alibi witness, as well as a verification of the service entrance exits. Over the request of defense counsel to have the testimony read, the trial judge denied the jury’s requests. The court of appeal reversed, finding that the trial court erred in denying the request.

6 The court also stated in a footnote that its opinion should not be read to suggest that an erroneous procedural instruction always constitutes harmless error. Also, it is interesting to note that Judge Cope penned a dissenting opinion arguing a new trial should be ordered.

7 Haliburton v. State, 561 So. 2d 248 (Fla.1990), cert. denied, 501 U.S. 1259, 111 S. Ct. 2910 (1991). See also Vasquez v. State, 830 So. 2d 929 (Fla. 4th D.C.A. 2002).

8 Article 5 required the use of recording instruments instead of the use of court reporters, except in cases involving a capital felony.

9 In re Amendments to The Florida Rules of Civil Procedure, The Florida Rules of Criminal Procedure, The Standard Jury Instructions in Civil Cases, and The Standard Jury Instructions in Criminal Cases — Implementation of Jury Innovations Committee Recommendations, 967 So. 2d 178 (Fla. 2007).

10 Bradley v. State, 513 So. 2d 112 (Fla. 1987), cited in White v. State, 31 So. 3d 816 (Fla. 2d D.C.A. 2010).

11 Any read back of testimony should take place in open court. Transcripts or tapes of testimony should not be sent back to the jury room. Notes on Use of Instruction 4.4; see also Young v. State, 645 So. 2d 965 (Fla.1994) (stating it was error to allow the jury to take the taped depositions of the child victims into the jury room).

12 The author is aware that not all recording systems are the same across the state.

13 Language original, but heavily borrowed from both the Minnesota Jury Instruction Guide and Kansas Jury Instructions.

14 Language original, but heavily borrowed from the Ohio Jury Instructions.

Jonathan Olson is an assistant state attorney for the Fifth Circuit in Tavares. He received his J.D. from Valparaiso University School of Law.

This column is submitted on behalf of the Trial Lawyers Section, Clifford C. Higby, chair, and D. Matthew Allen, editor.

Trial Lawyers