*1
436 Mich PEOPLE v FRANCE
PEOPLE PANNELL
84104,
(Calendar
Argued
9,
January
Docket Nos.
84324.
5-
Nos.
6).
September 12,
Decided
1990.
by
Bay
LaNathan France was convicted
Circuit
Court,
J.,
Caprathe,
robbery
William J.
of armed
and of break-
ing
entering
occupied dwelling
and
an
with intent to commit
larceny.
Appeals,
The Court of
and R. P. Hatha-
Mackenzie
way, JJ.,
(Beasley, P.J., concurring),
unpub-
reversed in an
opinion
curiam,
per
ground
lished
on the
that comments were
by
jury during
made
a bailiff to the
deliberations outside the
presence
regarding requests by
courtroom and the
of counsel
(Docket
89986).
people
for certain information
No.
appeal.
by
Earl L. Pannell was convicted
in Detroit Recorder’s
Court, George
Crockett, III, J.,
third-degree
W.
of five counts of
P.J.,
Appeals,
criminal sexual
Sullivan,
conduct.
Court of
Cynar
JJ.,
opinion per
Taylor,
and R. J.
affirmed
an
curiam, finding
judge’s
jury,
written
to the
note
counsel,
consulting
to continue deliberations was
(Docket
92623).
appeals.
not error
No.
The defendant
opinion
joined by
In an
Riley,
Chief Justice
Justices
Supreme
Brickley, Boyle,
Griffin,
Court held:
reviewing
parte
Before a
court can determine whether an ex
deliberating jury
communication to a
resulted
reason-
defendant,
possibility
prejudice
categorize
able
it must
substantive, administrative,
the communication as either
housekeeping.
encompasses supplemental
1. Substantive communication
in-
given by
deliberating
struction on the law
a trial court to a
presumption
jury. A substantive communication carries a
aggrieved party, regardless
of whether
favor
References
2d,
Am Jur
Trial
1001.
§§
jurors
Postretirememt out-of-court communications between
grounds
in criminal case.
trial
as
for new trial or reversal
43 ALR4th 410.
may
only
presumption
objection
be rebutted
is raised. The
an
showing
prejudice.
of an absence of
a firm and definite
re-
include instructions
2. Administrative communications
garding
availability
pieces
in-
of evidence and
of certain
encourage
to continue its deliberations
structions that
*2
object
presumption
prejudice. Failure to
when
no
of
and have
that
the
of
a communication is evidence
made aware
such
raised,
prejudicial.
objection
If
is
the
was not
an
instruction
nonobjecting party
to demonstrate
burden lies with the
Alternatively,
any prejudicial
lacked
effect.
the communication
volition,
court,
may
reviewing
upon
an
own
find that
a
its
encouraged
which
a
to continue its delibera-
instruction
prejudicial
it violated the
tions was
to the defendant because
5.4(b), adopted
Jury
in
Instruction
ABA Standard
(1974).
Sullivan,
Pannell, affirmed.
Cavanagh
joined
Levin,
by
Archer,
Justice
Justices
and
dissenting,
Supreme
stated that decisions of the
Court and the
Michigan
absolutely proscribe
by
Court Rules
communication
a
judge
parties
or a court officer
awith
without notice to the
presence.
in the courtroom
their
A conviction should not
reversed, however,
necessarily be
because communications with
deliberating jury
a
occurred outside the courtroom and the
counsel,
presence
of the communication
where the terms
stenographically
in the courtroom or
were
transcribed
preserved
by
a note that
was had means of
was
communication
record,
writing,
part
appears
it
from the
assessed
as
context,
possibility of
there was not
reasonable
by
prejudice
complaining party.
line
drawn
Supreme
requiring
previous
a
reversal without
Court
cases
showing
room
enters the
where
responds
begins
where the
after
to deliberate or
respecting
subject
jury request
to a
for further information
through
orally
matter
court officer should
of its deliberations
to.
adhered
proposed
tripartite
ap-
majority
for
has
classification
by
pellate
parte
or a
of ex
communications
the court
review
substantive,
deliberating jury:
court
with a
administra-
officer
tive,
housekeeping.
the communication is oral and
Where
transcribed,
stenographically
is not
or where
is not had
writing
preserved
part of the
note or
another
as
record,
appellate
generally
adequate
court
will
have an
record
to base such a classification. The classification
on which
cases,
begs
question
is the
most
scheme
what
central
namely,
respecting
subject
the communication was
whether
jury’s
matter
and whether it
of a sort
deliberations
*3
prejudice. Clearly,
pose any
possibility
of
could
reasonable
communication,
once it
oral or
is established
whether
nature,
written,
housekeeping
would be extraordi-
was of
nary
any
possibility
prejudice.
to be
of
for there
reasonable
Also,
unavailability
pieces
about the
of certain
of
statements
ordinarily
any
pose
possibility
reasonable
of
evidence will
prejudice. If a substantive or administrative communication is
recorded,
nothing
stenographically
there
or otherwise
will be
show;
appellate
further
be
it will
for the
court to determine
any
possibility
prejudice.
whether
there was
reasonable
of
contemporaneous
stenographic
Where
is not a
or other
there
record,
show,
prosecutor
able
written
will not be
and an
determine,
appellate
generally will be unable to
whether
court
may
is administrative or substantive and
communication
difficulty determining
an
even
whether
oral communica-
have
However,
contemporane-
housekeeping.
tion is
there is a
where
record,
appellate
generally
ous written
court
will be able
assessment,
regard
has
of
make an
to who
the burden
persuasion,
any
possibility of whether there was
reasonable
parte
prejudice,
though
against
ex
even
rule
communica-
deliberating jury
tion with a
was violated.
affirmed, resulting in
in both cases should be
decisions
in
and a
an affirmance of the defendant’s conviction
Pannell
and remand for a new trial
in
of the conviction
reversal
France.
(1988)
App
Before a deliberating jury resulted in reason- communication to a defendant, categorize prejudice possibility it must to the able administrative, substantive, the communication as either encompasses supple- housekeeping; substantive communication given by law a trial court to a mental instruction on the presumption prejudice deliberating jury and carries a aggrieved party, regardless objection of whether an favor may raised; presumption only rebutted a firm and showing prejudice; of an absence of administrative definite regarding availability communications include instructions encourage pieces of and instructions that of certain evidence presumption its deliberations and have no to continue prejudice; housekeeping communications are those which occur orders, regarding a court officer meal rest between a facilities, general "housekeep- or matters consistent with room being ing” any way needs that are unrelated to the case carry presumption of no decided and (MCR6.414[A]). defendant Kelley, Attorney . General, J. Louis J. Frank George Caruso, General, Mullison, B. Solicitor Prosecuting Attorney, Mettee, and Martha G. As- Prosecuting people Attorney, for the sistant France. Kelley, Attorney General,
Frank J. Louis J. General, O’Hair, Caruso, cuting Attorney, Timothy John D. Solicitor Prose- Baughman, Chief,
A. Training Ap- Division, Research, Criminal Prosecuting peals, Joseph Puleo, A. Assistant people Attorney, for the Pannell. Schuck) Appellate (by F. Michael
State Defender *4 in France. for the defendant Carter) Appellate (by A. Defender Derrick State the defendant Pannell. for Court granted appeal in these leave to C.J. We Riley, appeal, purposes cases, of this consolidated for two requiring reversal of a the strict rule to review of communication with a in the event conviction deliberating jury and the outside the courtroom presence of counsel.1 deliberating pro-
Communication with 6.414(A).2 Any communication MCR hibited with the court with a not conformance discouraged by been, be, and continues to rules has practice However, trial this Court. the realities of that the harsh rule of lead us to the determination goes beyond the limits neces- automatic reversal sary safeguard right fair of a defendant to a today modify Therefore, trial. we the rule of auto- matic reversal.3 linchpin of new rule centers on a show-
ing prejudice. purposes rule, we For "any possi- broadly define as reasonable bility prejudice.” deliberating
We find that communication with a
categories:
three
can be classified into one of
Raschke,
577;
Zaitzeff v
387 Mich
verdict on the evidence court. The court any juror pertaining communicate with the or to the case notifying parties permitting pres- them to be pertaining ent. The court must ensure all communications any juror to the case between the court and the made a are part of the record. adopt today apply The rule that we will to both criminal and civil cases. *5 People France Opinion of the Court housekeeping. administrative, substantive, Upon appeal, or upon reviewing a it is incumbent categorize communication that to first court necessarily appeal. lead This will basis of the party dem- a has the determination of whether prejudicial, was that the communication onstrated lacked reasonable that the communication or prejudicial effect.4 supple- encompasses communication
Substantive given by the trial instructions on the law mental deliberating jury. A commu- a substantive court to presumption carries a nication regardless aggrieved party of whether favor of the presumption may only objection is raised. The an showing of an firm and definite a be rebutted prejudice. absence of include instruc- communications
Administrative pieces availability regarding certain tions encourage and instructions evidence com- An administrative its deliberations. continue presumption. The failure to no munication carries object of the communication made aware when the administrative taken as evidence will be Upon objection, prejudicial. an was not instruction nonobject- persuasion lies with the burden of ing party that the communication to demonstrate Alternatively, any prejudicial a re- effect. lacked may upon viewing volition, find that court, its own encourages to continue which an instruction prejudicial to the defendant its deliberations Jury In- ABA Standard it violated the because provide examples may following paragraphs of what three substantive, administrative, housekeeping communica constitute category examples each are not intended included within tions. to be an exclusive may be included list of the communications category. of communications the classification each We leave within they opinion as arise future in this to be decided not enumerated cases. 436 Opinion of the Court 5.4(b),5 adopted by as this Court struction (1974). Sullivan, 220 NW2d Housekeeping are those which communications regarding and a court officer occur between orders, facilities, rest room or matters consis- meal general "housekeeping” tent needs that are being any way A unrelated to the case decided. housekeeping presump- communication carries *6 objec- prejudice. First, tion of no there must be an aggrieved communication, tion to the and then the showing party firm must make a and definite effectively presumption of no which prejudice. rebuts We conclude that the in instructions each category cases at bar fall into the of administra- except typewritten communication, tive defini- second-degree tion of criminal sexual conduct which was a substantive communication. With regard to the administrative communications in objection case, each the defense counsel waived regard when made aware of the instructions. With Pannell, to the substantive communication in prosecution effectively presumption overcame the Furthermore, to the defendant. note written court in trial was conformance Sullivan rule and included the record. We find that the record evidence indicates "any neither defendant has suffered reasonable possibility prejudice” as a result of the commu- nications.
Accordingly, we reverse the decision of Appeals Court France and affirm the decision Appeals in of the Court of Pannell. The current version of this instruction is found in 3 ABA (2d 15-4.4(b). ed),
Standards for Criminal Justice Standard France Opinion of the Court
I. FACTS PROCEEDINGS AND
A. PEOPLE v FRANCE 1985, jury September, of a At the conclusion of armed trial, France was convicted LaNathan entering occupied an breaking and and of robbery6 larceny.7 to commit dwelling with intent sexual second-degree criminal him of acquitted from to serve a term of He was sentenced conduct.8 robbery, for armed prison twenty forty years years from ten to fifteen term of and a concurrent entering. breaking for prison the courtroom to after left Moments deliberations, the trial court asked de- its begin if ask counsel, jurors] "[a]ny objection, fense [the exhibits, into them by to send them just for the . . . ?” counsel said he of the bailiff Defense way object. did not deliberating, the trial court
While the indicated that there had been con- several times jury. and the On each tact between bailiff occasion, had no defense counsel stated that he objection. *7 began when the
The first of these conversations that had sent out a explained trial court house, asking diagram for a of the victim’s as note produced by well as the exhibits that had been stated, "I The trial court instructed prosecution. jurors] diagram to tell that on [the bailiff] [the exhibit, not one the board wasn’t made an thus it’s brought of the exhibits that can be to them. Their The trial court then stated response okay.” was to them. given that the other exhibits had been responded: objection Defense counsel ”[n]o 6 750.529; MSA 28.797. MCL 7 750.110; 28.305. MCL MSA 8 28.788(3)(l)(c). 750.520c(l)(c); MCL MSA 436 138 146 Court handling diagram in [of] the the manner which you your did, Honor.” day, that
Later in the the trial court stated asking had a note for a received from further definition of criminal sexual conduct. The trial court
reported given it had approved by written instruction a form was counsel. counsel defense Defense stated on the record that the recitation of the trial court was correct.9
Finally, the trial court said that had requested police report. He told counsel response jurors] police [the [the "the was that report] was marked but not received in evi- give and, therefore, dence; we were not able to response them that.” Defense counsel’s same: was the objection your that, "[n]o Honor.” Appeals, presented many In the Court of France Believing merit, claims of error. of one had the Court Appeals declined to discuss the others. Appeals Court followed the strict rule
prohibiting deliberating communication with a presence outside the courtroom and the People counsel, Cain, 858; v 409 Mich 294 NW2d and reversed the conviction of the solely defendant.10 The Court based its decision on Judge the doctrine of stare decisis.* signed Beasley opinion sep the unanimous added urged arate concurrence in which he this Court to "revisit and reverse” the automatic reversal rule Appeals regarding Court held that there was no error typewritten given definition of criminal sexual conduct that was Anderson, jury, citing People the (1983). solely The reversal was based on the comments made jury. bailiff to the 11"Although rule, we have some concern for this automatic reversal requires stare decisis our adherence and reversal the instant case.” France, unpublished opinion per curiam of the Court of 89986). (Docket Appeals, August decided No. *8 Opinion of the Court Raschke, in Zaitzeff 577; 198
stated (1972). which sought appeal, leave prosecution The 30, 1989.12 on June granted we B. PEOPLE v PANNELL November, 1985, to trial Earl L. Pannell went first-degree criminal sexual eight counts of on conclusion, him not At the found conduct.13 eight regard counts. With guilty of three counts, was convicted remaining five Pannell sexual third-degree the lesser offense of criminal He sentenced to five concurrent conduct.14 was prison. to fifteen years terms of from ten day The was instructed near the end of the morning, 1985. The next the jury on November and, 10:30 began deliberating, at asked a.m., police for the vic- "[pictures, report, court [and In the absence of defense coun- statement.” tim’s] sel, give directed the bailiff to that were admitted into evidence. photographs However, to the re- respond the court waited to police report for the victim’s state- quest appeared at 12:20 ment until defense counsel p.m. time, placed At the matters were on the agreed police Both that neither parties record. nor the victim’s statement should be sent to report the items were not admitted into jury because Furthermore, no evidence. defense counsel had jury receiving photographs. objections 4:30 excused that afternoon at p.m. reaching a verdict. 14, 1985, following morning, at November 10:38 sent a note to the which a.m., MCL MCL 750.520b(l)(f); 750.520d(l)(b); (1989). MSA MSA 28.788(2)(l)(f). 28.788(4)(l)(b). *9 436 Mich 138 op the Court agreement.” Without read, reach an "we can not immediately replied judge consulting counsel, the your read, deliber- "[c]ontinue a note which with p.m. afternoon, the 12:12 . . . .” At ations "[m]ay jury stated, note which sent out a second consulting Again, without the hammers?” we see give judge to the counsel, the bailiff the directed jury entered into evidence hammers that were the attorneys to the the returned as exhibits.15 When p.m. afternoon, 12:20 the same courtroom at the the occurrences for the above summarized again, objection no to there was record.16Here sending jury that were exhibits evidence, in this instance the ham- entered into mers. place the of the However, to on defense counsel wanted request jury objection to the record an previous testimony day. objection was that the regarding police the victim’s statement of a should have been objection, officer jury.17 During the
reread to the jury verdict at returned with its p.m. 12:25 trial, admissibility objected During of the defense counsel they not the actual hammers used in
hammers because perpetration objection dence. were crime, actually merely used. This similar those into evi and the hammers were admitted was overruled p.m. Thursday, November 1985—12:20 reconvened; jury) (Proceedings presence of out of the Belcoure, Donahue, we have received The Court: Mr. Ms. during day. jury At or some communications from the about an saying, the instruction that that be shown to that it says, can not reach 10:38 the wrote a note which We 10:38, agreement. to the the Court wrote a note About it, deliberations, my your initials on with Continue and retrieved so file, put in the Court which was done. could says, May wrote a note which we see At 12:12 give jurors you. I instructed the bailiff to hammers? Thank 10-B, 10, 10-A, rather. Strike that. Exhibits 10 and 10-A or 10-B, are the hammers. which that, testimony previous day, defense on the This was the same jury. agreed given to the counsel should not be People Opinion of the Court Appeals
The Court of
affirmed the convictions of
People
App
Pannell,
the defendant.
v
(1988).
doing so,
768;
We also state that like a number of appellate judges, disagree our fellow with the requiring strict rule reversal set forth 644, 648; App (1980)]. Cain Mich [94 *10 Sawyer Judge People in his in v Like concurrence 307, 311; Lyons App Mich 416 422 [164 (1987)], we do believe that contact with a deliberating can jury never be harmless error. We Sawyer join Judge urging Supreme Court to this issue. at review [Id. 771.] sought appeal, The defendant leave to which we granted 30, on June 1989.19
II. ANALYSIS
A
years
It has been clear for well over a hundred
deliberating jury
that contact with a
must be
carefully
People Knapp,
267,
limited.
v
42 Mich
(1879);
Alpena
269-272; 3
NW
Churchill v
(1885).20
Judge,
Circuit
56 Mich
In In Wil- numerous occasions. on address issue 190; 112 NW2d Hartley, son v room and a clerk entered a bailiff delivered of deliberations day on the second said The Court judge. from the message an oral method of improper such not "condone did trial,” the conviction but affirmed handling a no to there was ground on the ver- returned its whom the plaintiff (against dict). Wilson, 189-190, emphasized we pp procedure: conforming to the correct importance responsibility to a communi- judges Trial have in the open court and jury directly to the cate to, of, parties their notice presence or after of the secrecy of the deliberations counsel. judge. the trial responsibility written, communications, either oral or question of jurors room parties third from appeals to this subject of several has been the impor- This year. in the last indicates Court of the entire trial calling to the attention tance of preserve secrecy duty their bench jury deliberations. later, a new the Court ordered
A few months trial had di- case in which the trial give the sheriff oral instructions rected *11 201; People Kangas, v 366 Mich deliberating jury. Churchill, (1962). Citing Knapp and 113 865 NW2d separately trial the Court ordered the new any there was question whether discussing also case. The Court particular in that and they to be sure that judges cautioned trial deliberating contact with improper others avoid juries:_ 97, (1937), Pizzino, 107-108; People 824 20 NW2d v 313 Mich
556 (1945), (1960). Nick, 219; People 360 Mich 103 NW2d and People Opinion of the Court judges of the trial We call to the attention safeguard by jury to jury trial duty this State their suspicion tampered may from deliberating. Frequently while of late this Court has had similar incidents called to its attention appeal in which there is reason to believe tampering present. opportunity for bailiffs, judges . . . that sher- caution trial [W]e iffs, personnel and other court should be warned practices involving jurors about associations with might out of the courtroom which both their opportunity create the influence decisions. [Kangas, supra at 208.] Woods, Harper
In Salvatore v 372 Mich 19- (1963), 21; 124 NW2d the trial returned a deliberating jury spoke to the courtroom and the absence of counsel. The Court said the trial proceed court should not fashion "unless undue delay jury’s delibera- tions would result or agreed unless counsel have stipulation permit on record to such further absence.” Id. instruction in their at 21. The Court court, however, affirmed the trial judgment in Salvatore had observing proceedings occurred in open court and had been recorded. wrestling
After
with three
involving
more cases
outsiders,21
contact
deliberating jury
between a
Raschke,
the Court decided Zaitzeff v
supra.
case,
deliberating
out a
jury passed
note
asking
that certain
be reread. The
testimony
courtroom,
brought
back to the
jurors
where
Hardwick,
640, 665-668, 673-674;
Bunda v
376 Mich
138 NW2d
(1965),
317, 331-332,
Co,
York
R
377 Mich
DeCorte v New
Central
333-357,
Schram,
(1966).
145, 150-154, 157-166;
Later judge, trial where the murder conviction had attorneys, of the obtaining permission exhib- twenty-one room to deliver entered 182, 183-184; 200 Heard, 388 Mich v People its. (1972). nor attorneys Neither this, and defense to do judge had asked returned objected counsel when courtroom. Cain, reinstated an this Court People supra, A deliber- a new trial. granting a defendant
order asking .note whether passed had out a ating jury reason, being had, attorneys to waive chosen for some attorneys Apparently present its verdict. when the returned the courtroom to discuss returned to also absent when the were testimony. rereading request for a its France Opinion of the Court unanimous. The read its verdict had to tell the jurors the note and told the bailiff their verdict had to be unanimous. Because *13 error, granted the trial court the defendant a new trial, set aside. This Appeals which the Court new Court reinstated the trial court’s order for a trial, the oral statement to the jury since bailiff’s instruction, an off the record "was nature of of) (at counsel, the the perimeter and without jury room, jury deliberating.” the and while 648. App Mich opinion
The Court’s most recent this area is Anderson, People v 31; 340 NW2d 634 (1983). In Anderson: judge his instructions concluded would, com-
statement menced that he before deliberations, lawyers discuss with the just given. instructions had If there were no he instructions, "personally he then additional come would your jury you and advise that there room instructions,” whereupon "any be no more will us cease.” verbal communication between shall determining After instructions, that there would be no further would, judge announced that he counsel, with the consent of both advise the deliberations, apparently commence did so. at [Id. 45.]
The Court of Anderson’s convic- Appeals reversed ground, tion on a different and this Court re- conviction, finding parte instated the the ex communication with the was not error which had required reversal because the trial ex- pressed his intention to communicate with in that neither had ob- party fashion and had been on notice of jected, though put even each Nevertheless, judge’s proceed. intention to contact was again Court once cautioned that such improper: 436 Opinion op the Court showing simply
There is no this in any case .... This view should not be taken way approval practice employed as of the prejudicial potentially case. It was an unwise better, simpler, practice procedure. The and wiser require would the trial to communicate with jury only from the bench in the courtroom and experience suggests on the record. While time- may sometimes be a cumbersome consuming procedure, price paying it is a worth factfinding process, preserve integrity of the appearance jury independence, and the expense, delay, consumption and appellate avoidance judicial resources involved in evalua- the court and tion of room contact between jurors, at [id. 40-41.] on numerous presented This issue has also been recent Appeals. occasions to the Court of Two Kent, are noteworthy. decisions *14 780, (1987), 789-792; 404 App the defendant’s convic- Appeals Court of reversed rulings, evidentiary tions because of errors contention that went on to address the defendant’s when a required place which reversal took error during from the jury court clerk took meal orders its Defense counsel and defendant deliberations. objected. the fact and neither were informed after order as a "purely The Court identified the meal id. at matter,” and concluded housekeeping Before improper. that the communication was Kent issue, Court criti- leaving strongly urged rule a automatic reversal cized the in the manner with which this greater flexibility treats Court issue.23_ Kent, 791-792, language supra bears the exact at We believe today: repeating light of our decision egregious especially designed address rules of law Broad petrified without additional on occasion become
situations
Opinion op the Court
App
People Lyons,
307, 309; 416
(1988),
issued a this Court rule. reversal to reexamine the automatic noting supra Lyons, 311-313. While at must be looked into the room an "invasion upon Judge great concern,” contin- Sawyer proposi- stating, agree on, "I with the ued cannot can never be considered that such an invasion tion analysis periods It little sense to have a over of time. makes potential result is reversal of an rule so absolute insignificant contact errorless trial because of am otherwise who which does not even raise the concern those with a were promulgate present during proceedings. Those who consequences such rules would do well to consider reversal contrary, where, despite of convictions clear instructions secretary’s juror suddenly appears at desk and a a request babysitter, juror for water or to call a makes knocks at the door and exhibits, verbally requests or a certain indicating voting how the stands. Is a note is sent to a court meal, officer, taking prohibited jury to a from when indicating spending verbally limits? enough today in institutions Little confidence exists our perpetuating personnel further its erosion an automatic rule applied obey the law to court who are under oath to *15 nothing more is revealed than an incidental contact where judicial system demon- unrelated to the case itself. The must some confidence in those who are entrusted with its well- strate and, fact, being in the outcome of a have little interest (or, matter, tiny, showing scru- when there is no of after such). hint even a of 436 Mich the Court of Judge Additionally, Sawyer Id. at 311. harmless.” requiring policy the victim of concern of raised put through another trial the crime to "be no useful futile reverence to a rule which serves purpose.” Id. at 313.24 apparent increasing readily
It is that an number remaining Appeals jurists, loyal of Court of while decisis, have found consid- to the doctrine of stare disfavor with the rule of automatic reversal erable in the event of ex deliberating jury.
parte communication with a B A review of federal cases that address the issue deliberating parte of ex communications with a jury indicate that the nature the communica- tion can be classified as either substantive or parte administrative. Substantive ex tion occurs when the trial court communica-
provides supplemental with Administrative ex instructions on matters of law.
parte communication includes regarding availability instructions certain pieces evidence, an instruction which en- courages to continue its deliberations. involving
One the earliest cases the issue of taken, excerpt quotation The full from which this reads: regrettable I find it the citizens’ tax dollars must be giving wasted on a defendant another trial when he has re- fair time. I ceived a the victim must be trial first find unconscionable that put through another trial in futile rever- purpose. to a rule It ence wonder that victims which serves no useful is little may be reluctant to come forward when justice system places upon following our them the burdens of Judge out, pointed such absurd rules. As as we are erosion of am constrained to vote for Harrison such results compelled today only deepen to reach serve to Therefore, public judiciary. confidence in our I while reversal, urge Supreme I Court system. us and restore common to reverse some sense *16 Opinion of the Court Fillippon parte ex communication substantive Co, 76; 435; 63 L 250 US 39 S Ct Albion Vein Slate brought per- employee Ed 853 where an against employer injury work- his for sonal action Fillippon, jury injuries. in- was related applicable Pennsylvania on law and had structed it a written for deliberations when sent retired inquiry asking plaintiff to the court whether negli- contributorily found to have been should be supple- gent. responded with a written The court explanation contributory mental of the law of negligence. Supreme found that
The United States
Court
given
supplemental
jury
instruction
was
Pennsylvania law,
in
not
accord with
and that
it
"calculated
to mislead
excluded a material element
that needed to be
determining
plaintiff
considered in
whether
should
guilty
contributory negligence
held
. . .”
.
82.
Id. at
The Court said that "the trial court
giving
supplementary
erred in
instruction
parties
in the absence of the
and without
affording
opportunity
present
them an
either to be
timely objection
or to make
at 81.
to the instruction.” Id.
Although
provided
remedy
the Court
for
no
parte communication,
the error of ex
it held that
presump-
erroneous
instructions
are
trials
injurious
tively
grounds
and furnish
for reversal
affirmatively appears
they
unless it
were
Fillippon
harmless. The
rule was then extended to
States,
criminal cases
Shields v United
273 US
(1927).
583;
478;
47 S Ct
juror
the matter
trial about
reasons,
is,
deemed
obvious
for
before
pur
prejudicial,
presumptively
suance
structions and
if
made
in
and the
of the court
of known rules
during
the court made
directions of
knowledge
parties. The
trial,
full
presumption
conclusive,
the burden
but
is not
*17
upon
heavily
establish,
the Government to
rests
after
hearing
defendant, that
of the
notice to and
juror
was harmless
with the
such contact
Emphasis added.][26]
[Id. at 229.
defendant.
prosecution can meet
the
manner
which
One
establishing
that the instruction
its burden
harmless
illustrated
United
to the defendant
(CA 1987).
York,
830 F2d
8,
States v
885, 894
"
question,
jury posed
'[c]an we find York
though
may
guilty
have
he
on Count n even
"
”
responded
gun?’
with,
'[i]n
a
The court
carried
answer
of
presumption
pages
question
you
your
I refer
to
to
31-33
”
my
court held that
instructions.’
because,
was overcome
nothing
parte
did
"[t]he
ex
communication
court’s
correct
to the neutral
more than direct
explanation
.”
895. See also
law . . .
Id. at
of the
(In
(CA 1981)
Stephens,
662 F2d 3,
Black v
requesting
response
jury’s
a definition of
note
merely
force,
recited the
the trial court
excessive
by bringing
juror during
profit
in a verdict
trial
that he could
distinction,
Notwithstanding
this
we
defendant.
favorable to the
parte jury
type
contact must be
of ex
believe that
the nature of
Supreme
Court’s treatment
as substantive and
classified
analysis here.
is relevant
to our
the communication
(CA 1984),
Pennell,
6,
cert den
737 F2d 521
In United States v
Supreme
Court’s subse
the court held that
As illustrated case law has deter- mined that it is error for the court to instruct or jury in of coun- communicate with the the absence without notice to the defendant and coun- sel and sel. United States 6, ing (CA Reynolds, 489 F2d 1973), the court held that the test for determin- error if a forbidden communication constituted " requiring reversal was whether 'there is *18 ”28 prejudice.’ possibility of reasonable (CA Mesteth, 8, 333 In United States v 528 F2d 1976), requests jury the the sent two written testimony judge. of a wit- The first asked for the inquiry read, and the second was an ness right- regarding or whether the defendant writing judge responded by "no” left-handed. The 27 (ED Pa, 1970), Wood, Supp F 118 the court held In Gleeson v timely objection parte to make a to a substantive ex that instruction failure requested by jury objection resulted in a waiver of precluded it time. the assertion of at a later jury height if the could have the of The foreman asked bailiff relayed question judge’s secretary The bailiff to the the defendant. repeated judge. turn it to the used the same who in jury system it could not in reverse to tell the communication information. The court held that the communica have additional prejudice. possibility of tion did not create a reasonable 436 Mich Opinion of the Court signature of each note. The
and his on bottom applied Reynolds court communications were not substantive test to find that
"of an affirmative or nature,” no and held that "there was possibility prejudice, error, if reasonable and the any, was harmless.” at 335. Mesteth category administrative
Included within encourages communication is an instruction which a to continue its deliberations. General (CA 1969), Corp Walden, 10, Motors 406 F2d 606 time, after the had for some it deliberated " read, honor, sent a note to the court which 'Your sitting apparently one, we are get please ing five to cannot you closer. We do not know what to do. Will ” Id. 609. instruct us?’ at Without consult- " responded, '[t]he counsel the court Court has your you received continue to deliberate.’ court note and advises that are to ” Id. Within an hour the informed counsel the note re- and its sponse. divulge However, the court did not how objected, the moved for a was divided. Neither counsel requested
mistrial, further instruc- tions. The court the trial court was "an administrative direction to the found that statement jury” hold, and went on to "the communication parties was the issues harmless both to the and collateral for submitted determination jury.” Id. at 610. Again, in Reazin v Blue Cross & Blue Shield (D 1987),29 Supp
Kansas, Inc, Kan, 663 F citing Corp, 1382, Acree v Minolta 748 F2d (CA 1984), response the court said that the of jury request trial court to a for evidence or to a question proceed whether should is an Aeree, held, administrative direction. In the court "[notwithstanding general [Fillippon] rule, given is not error if the instructions 1990). (CA 10, Aff’d 899 F2d 951 *19 Opinion of the Court merely are administrative directions rather than supplementary instructions.” Id. at 1385.30
c persuaded by analysis preced- We are our ing Michigan cases that rule of automatic justice reversal does not serve the best interests of many may very and, in instances, it well serve to justice. Michigan defeat rule was borne of the frustration of this Court with the failure of our practice entering state trial courts to cease the deliberating. room while the Not- withstanding today, message our decision repeating: parte bears ex communication with a deliberating jury 6.414(A); is error under MCR discouraged by been, has and continues to be Court.
However, as observed
the United States Su-
preme
Spain,
Court in
114,
Rushen v
464 US
118-
453;
104 S Ct
tion of loss of car for 9 months in instruction #15?” Response: "Loss of car was not included because the court damage ruled that he was not entitled to for this item.” Question: missing police report "We seem to be re: point machines. Is that relevant to our deliberations?” Response: police to, report "A was referred but was not offered or admitted into evidence.” responses The court held that the of the trial did not consti- explanation tute error because trial court’s did not "[t]he instruct the jury on apply what the law is or on how to the law to the evidence. Nor did it instruct the at 1385. merely gave on how to conduct itself. It collateral information that did not affect its deliberation.” Id. *20 436 op the Court placed potentially in a every compromising ally impossible or juror time has been . . it is virtu- . situation [because] every contact jurors from to shield might their theoretically influence affect S Ct Phillips, 455 US vote.” Smith v [102 (1982). scarcely a L Ed 2d There 78] jurors one or do lengthy trial in which more speak about have occasion to trial something, sonal comfort or to some per- The it relates matter of whether to a aspect the trial. of un- federal an lower recorded courts’ conclusion trial parte ex communication between ig- juror can never be harmless error life these realities of day-to-day nores and tration of criminal courtroom society’s adminis- undermines interest justice. longer persuaded this no We are Court can reality "ignore day-to-day life” of courtroom right Michigan. mindful to a While we are of ignore society trial, we cannot interest of fair in the administration of the state enforcement resources. in the concern for the victims
justice, the interest of judicial of effective use its and law Furthermore, we find merit expressed crime of Judge Lyons We, in his concurrence. Sawyer too, believe that it is unconscionable that victim put through must be ence to another trial in futile rever-
a rule interests which fails serve the of reasoning justice.31 Therefore, we draw from the of urged Appeals jurists us to the Court who have reasoning issue, as from the review as well modify courts, to rule of automatic the federal reversal. linchpin rule of the new on a centers show- ing prejudice. purposes rule, For the of this we " possi-
broadly prejudice 'any define as reasonable 31 Pannell, raped three men. It victim was brutalized nightmare by requiring a is unthinkable to have her relive the trial new merely because there were administrative communications with firmly jury, any have which we did not communications believe possibility of to the defendant. reasonable Opinion op the Court ”32 reviewing prejudice.’ bility A must court that a if determines reverse the conviction parte prejudiced by an ex defendant has been jury. with the communication reviewing court can make We hold that before a determination regarding prejudicial effect of a an categorize parte communication, it ex must first categories: the communication into one of three housekeeping. substantive, administrative, or This regarding necessarily to a decision wilJ lead party has demonstrated that the com- whether munication cation lacked prejudicial or that the communi- prejudicial reasonable effect.33 *21 encompasses supple- Substantive communication given by mental instruction on the law the trial deliberating jury. A court nication carries a a substantive commu-
presumption prejudice of aggrieved regardless party favor of whether objection presumption may only an The raised. showing be rebutted a firm and definite of an prejudice.34 supra. Remmer, absence of See Administrative communications include instruc- regarding availability pieces tions of certain of encourage evidence and instructions that continue its deliberations. munication has no a An com- administrative presumption prejudice. The object failure to when made aware of the commu- as the instruc- nication will be taken evidence that Upon prejudicial. objection, tion was not an nonobjecting party to demon- burden lies with the 32Reynolds, supra at 8.
33See n 4. presumption prejudice prosecution may rebut the with a showing merely the instruction was a recitation of an instruction originally given objection, placed it on the and that Black, addition, presumption prejudice supra. See In record. showing expressed would be overcome with a that the trial court had prior given its intent to communicate with the consent to the instruction. and counsel had communication, as well as to the substance of Anderson, supra. 436 op the Court any prejudi- lacked that the communication
strate cial effect.35 its own upon reviewing Alternatively, court, may volition, find that an instruction encouraged its delibera- to continue which tions was violated prejudicial because to the defendant 5.4(b), Jury Instruction
the ABA Standard supra. adopted by Sullivan, this Court as Housekeeping those which are communications regarding officer and a court occur between meal facilities, consis-
orders, or matters rest room "housekeeping” general are needs that tent with unrelated housekeeping being any way A to the case decided. presump- carries the communication objec- prejudice. First, an there must be tion of no tion to the aggrieved communication, and then showing party definite make a firm and must presumption effectively of no rebuts the which prejudice.36 D Appeals France, found no error the Court regard typewritten definition of second- to the with degree was sent to criminal sexual conduct which prior had received the because the note analy- approval followed the of counsel. Court People Anderson, 340 NW2d sis that no was shown and held agree. regard typewritten note. We *22 depart In order to best Here somewhat from the Aeree rule. we balancing safeguard right to a fair trial when the defendant’s judicial against law in effective use of its the state’s interest resources, persuasion the burden of enforcement we believe prosecution prejudicial of remain with the to show a lack should However, preju presumption of we reiterate that there is no effect. dice to overcome regard to administrative communications. (D NJ, Dinorscio, Supp 661 F See United States v (the 1987), the the Remmer rule burden is on which held that harmless) presumptive prejudice government prove that the government improper only contact the to the "if the shifts burden jury”—the guilt pending or innocence before the involves the matter of the defendant. People v France Opinion op the Court typewritten findWe the note was a sub- supple- stantive communication because it was a However, mental instruction on the law. we hold presumption by that the of was overcome prior consent the of the defense counsel to the being jury. Anderson, instruction the sent to As judge expressed engage the his intention to in an parte jury, ex communication with the and both parties consented to the communication after hav- ing put by been on notice the court. Id. Further- merely original more, the note recited the instruc- second-degree on tion criminal sexual conduct to objection given which there was no when supra.37 Black, at the Therefore, close of trial. any possibility we are unable to find prejudice reasonable type- to the defendant as a result written note. by
The comments made bailiff France requests were a result of made pieces information, review certain some that were taken into evidence and some that were not. provided instance, In each either evidence, with the or he instructed the information was unavailable because it Pannell, was not entered into evidence. In communications were similar. We find that the ex parte given instructions in both cases come within category of administrative communication. In objection case, each the defense counsel waived instructions, when he was made aware of the arewe possibility unable to find reasonable prejudice to the defendants. regard
With to the note written the trial judge merely Pannell, court required we find that to continue its deliberations. The require require court did not or threaten to 37See n 34. *23 436 Mích 138
166 Dissenting Opinion by Levin, J. for for an time or to deliberate unreasonable Therefore, we find no vio- intervals. unreasonable adopted in Sullivan. lation of the rule
III. CONCLUSION trial, not a A to a fair defendant entitled perfect Today, we forth rules which one.38 have set acknowledge of the realities the court- we believe room to safeguarding right of an individual while Reviewing courts first fair trial. must receive a categorize nature of communication—sub- housekeeping—and stantive, administrative, analyze then whether the communication carried possibility de- of reasonable doing so, fendant. In we find that communica- as for each of the tions which serve the basis appeals any possible did not instant prejudicial result
effect to defendant. Thus, reverse of the Court we decision Appeals in the case to the France remand Appeals for of the remain- Court consideration ap- ing has on issues which defendant raised peal. Conversely, we affirm the decision of the Appeals Court of Pannell. JJ., concurred Boyle, Griffin,
Brickley, C.J. Riley, 1 (dissenting). J. Decisions this Court* Levin, proscribe absolutely and court communica rules2 Arsdall, 673, 681; 1431; 106 S 89 L Ed Delaware v Van US Ct 231-232; States, (1986); Ct 2d 674 v United 411 US 93 S Brown States, 123, 135; 1565; (1973); 36 L United 391 US Ed 2d Bruton v (1968). Ct 88 S 20 L Ed 2d accompanying See ns 12-16 and text. provides: procedure A rule civil Rendering
Rule Verdict 2.512 Dissenting Levin, J. or a court officer with the tion a (DXD officers, including attorneys, trial must attend All court *24 jury during until verdict of the is the trial of an action the announced. 2.512(D)(1) 1963, repeats of GCR 512.4. The the substance MCR committee notes state: responsibility the 512.4 is intended to indicate Sub-rule attorneys officers to attend the court until a and other court Hawkins, Honigman Michigan & verdict is to be received. [2 Annotated, 512, p Court Rules Rule 490.] The "Authors’ Comments” state: judge jury, All communications between the trial and case, place open must take in court and after submission in the counsel, counsel, propounded and to, of, presence parties their or after notice or right, has no without the consent of and the court jury question to send to the room an answer to a writing jurors. in to him the M.L.P. Trial 306: § 1879, Howell, see, Russell, 8; Donville v N.P. Finkel v 630; 276; Hopkins [1939], 291 Mich Misch Co NW [Otto] 1892, p
Bishop, [Id., 902. NW 493.] procedure provides: Another rule of civil Jury 2.516 Rule Instructions to (B)(4) jury deliberating, may While the the court further jury presence
instruct the
the
in the
of or after
notice to
reasonable
parties.
repeats
This rule
substance of GCR
516.4.
procedure provides:
A
criminal
rule of
Jury
Rule 6.414 Conduct of
Trial
(A)
Responsibility.
court
Court’s
The trial
must control
proceedings during trial,
arguments
limit
and
the evidence
to
to
matters,
appropriate
proper
steps
take
relevant and
ensure
influences that
and
exposed
jurors
not be
to information or
will
might
ability
impartial
to render
affect their
an
presented
may
verdict on the evidence
in court. The court
not
jury
any juror pertaining
or
to the case
communicate with the
notifying
parties
permitting
pres-
them be
pertaining
ent. The court must ensure that all communications
to
made
jury
any juror
and the
are
the case between the court
part
of the record.
(cid:127)
The standard
both civil and
criminal,
include an instruction
if the jury
wishes to communicate with the
while it is
deliberating,
foreperson
shall write a note and
bailiff,
it to
proper
deliver
and that
it is not
require
The court rules do not in terms
further instructions
deliberating jury
ato
be delivered in the courtroom. But the court
requirement
rule
ered in the
that further
instructions to
shall be deliv
"presence”
parties,
only
presence
counsel, means in effect that further instructions shall be
delivered
*25
(see
Hartley,
the courtroom. Decisions of this Court so state
Wilson v
188, 189;
Anderson,
[1961],
People
The followed the instructions and sent notes to the judges. not, however, judges did follow the decisions of Court and the court in responding rules notes from the juries. judges responded parte ex to the notes consulting lawyers repre- first with the France, In
senting parties. instructed a court officer off the record to communicate orally record, judge’s response again off the orally, Pannell, jurors. judge responded notes handed to a court officer that were delivered the court officer to jurors, judge’s and the part notes were made a of the record._ you you If wish to communicate with the Court while are deliberating, please your have foreman write a note and deliver proper or other directly judge, It bailiff. is not to talk with the officers, case, attorneys, persons court involved nothing if even the discussion has to do with the case. deliberation, During your you must not disclose the state of your unless even in Therefore, deliberations to others outside room. verdict, you information, reach a do not disclose this courtroom. you If wish to examine the exhibits that have been admitted evidence, please give your into it to the bailiff. The exhibits will then may have foreman write a note given you you examine them the room. [SJI2d 60.01.] given The instruction on exhibits was Pannell but not in France. are, substance, The standard criminal instructions identical. CJI 3:1:20 and 21. 9The instruction in Pannell elaborated: *26 note, door, your foreperson have write a knock on It and the "[P]lease added.) (Emphasis appears deliver it to the bailiff.” from other i.e., transcripts judges jury, we have examined that so instruct the if that attract knock on the door when he returns with a note response. the wishes to deliver a note it should knock on the door to and the bailiff is instructed to bailiff, the attention of the stating judge’s the 138 436 by Dissenting Opinion Levin, J. I Although judges in cases violated the instant the rules concern- and the court this Court’s decisions ing deliberating jury, we with a communications agree majority the that a convic- with nevertheless necessarily of reversed because not tion should deliberating jury outside awith "communication presence and the of counsel.”10 the courtroom majority agree the the where We with judge, this Court’s decisions in violation of albeit rules, communicates with the court consulting lawyers for the first parties, where trial should not be ordered a new stenographi- were terms of the communication cally or the commu- transcribed courtroom writing by of a note or nication was means appears part preserved record, as of was writing context, that, there assessed from possibility reasonable party. complaining would, however, the line drawn adhere to We showing requiring reversal, without a this Court begins prejudice, where, to deliber after jury room,* in Zaitzeff ate, enters the as (1972),12 Raschke, 577; 198 10Ante, p 142. parties lawyer representing of the and a court Unless a each stenographer jury room and the court also shall have entered the stenographer transcribes all that occurs. testimony portion The of the be read. asked that a reporter reporter jury room and the court the court entered the and read a concerning testimony jury. that had been reread portion record was silent to the testimony portion trial, ordering reversing
jury. this Court said: new plainly in 1961 for Wilson v was written so With what concerning supra],
Hartley,
the indefensible
Mich 188
[n
there,
entering
jurors
practice
no matter
are
room while the
done,
this Court had
one would think that
whom
practice
place
enough
prevent
here. Yet the
what took
said
*27
People
France
v
by
Dissenting Opinion
Levin, J.
on,
on,
on, encouraged occasionally by "no
go
and
and
seems to
group
who cannot
prejudice
hope
the
of a
of Justices
shown” conclusions
hinted,
said,
done,
gestured, or
or
or
what was
to know
supra, p
[Zaitzeff,
sanctity
jury room.
579.]
of the
Wilson,
p
supra,
a written note to the
the
"the foreman sent
n 3
rendering
judge inquiring
to be used in
as to what form was
trial
verdict.
gave
case,
process
trying
judge,
oral instructions to
another
was in the
The
who
give
to the
the clerk entered the
to
the clerk of the court
certain
inquiry.”
response
jury
jury
The bailiff and
to
what was
that he did not remember
The bailiff testified
room.
"
responded
'no form
that there was
testified that he
said. The clerk
which
he has reached a
you
your
giving your
if
you
I will ask
foreman
use in
verdict.
will
verdict,
so,
it is. He will tell me what
and if
what
you
agreed
a form to
and that will
And then I will read
have
on.
”
be all.’
This Court said:
jury
responsibility
judges
to communicate to
have a
Trial
of,
to,
presence
secrecy
directly
open
or after notice
and in the
court
of
of
parties
jury
of the deliberations
or their counsel. The
question
judge.
responsibility
of the trial
is a
written,
parties
communications,
third
from
either oral
subject
jury
of several
jurors
has
in the
room
been
the
appeals
importance
year.
last
This indicates
to this Court
calling
the entire trial bench
to the attention of
preserve
secrecy
duty
deliberations.
their
question
thereto
and the answer
here in
The communication
bearing upon
pertain
any phase of the case
did not
reply
right
and the
plaintiff’s
pertained solely
to recover—instead the note
proper
should
form in which a verdict
improper
Although
such
we do not condone
rendered.
trial,
handling
we
under the circumstances
method of
are of
that the situation does
of the verdict and
plaintiff
opinion
and
resulted to
that no
just
for reversal
not constitute a
reason
judgment. [Id., pp 189-190.]
Woods,
14, 20;
Harper
by
where the
372 Mich
Salvatore v
Wilson was followed
and
returned to the courtroom
124 NW2d
judge
figures placed by
inquired
responded
that
a witness on a blackboard.
about
counsel,
parties
of the
the record in the absence
on
exhibit,
figures
an
and made other
were not
the blackboard
did
the record. This Court concluded
observations on
appear
light
colloquy
prejudiced
read in
the defendant was
Hartley
distinguished
v
on the
Wilson
of the verdict. The Court
convey
jury room to
clerk entered the
that there the bailiff and
basis
proceedings
instructions,
judge’s
in Salvatore "the
while
the
occurred in
oral
open
and were recorded.”
court
although
absence from
"counsel’s
in Salvatore said that
The Court
does not
further instructions
returns for
the courtroom when
bar
proceeding,
unless undue
he
not do so
from
should
the trial
jury
they
verdict
In a
returned its
court,
of the trial
which we found to be reversible
the action
error.
and neither
case,
strenuously objected,
the instant
defense counsel
counsel,
judge
jury,
requested
nor
that the
the
had
bring
[Heard,
p
supra,
in these exhibits.
184.]
14
responded
People
judge
Chaney,
It
the
in
v
is unclear how
(1981),
1052;
through
whether
a court officer or
Mich
in
ported
Docket No.
peremptorily
reversed the unre
some other manner. This Court
(decided
24, 1980,
Appeals
of
decision of
Court
October
78-444),
201;
authority
People Kangas,
on the
of
v
366 Mich
Cain,
(1962), Zaitzeff, Heard,
People
give
they
immediately
them that. Then almost
did come back
[Emphasis
with a verdict.
added.]
them,”
"give[n
The record did not indicate what had been
it
NW2d
nor was
to]
Marks,
Brigham
911;
that
in contrast with
claimed
Mich
immediately preceding
n
and text
response was written.
15This Court described what had occurred:
Opinion by
Dissenting
Levin, J.
(1980),16
Although those decisions of this Court have been
characterized as a "strict
rule”
"automatic”
judge
reversal whenever the
deliberating jury
communicates with a
in the
other than
courtroom and
presence
counsel,
strict rule of rever-
showing
actually
sal without a
has
applicable only
held
this Court to
been
judge
jury
{Zait-
cases where the
entered the
room
deliberations,
During the
course
there
a knock on
room
into
door and
sheriff went
room.
occurred,
Some conversation
after which the sheriff came out
judge.
and asked to see the trial
trial
the
and
The sheriff talked with the
trial,
judge
private.
opinion
In his
on motion for new
stated he had discussed the matter with both counsel
together they
point
question.
researched the
Later the
counsel,
judge,
hearing
out of
instructed the sheriff to return
room,
jurors. Shortly
where he talked with the
thereafter,
jurors
open
called the
into
court and
jury.
judge acknowledged
instructed the
In his instructions the
given
through
he had
he wanted to clear
them instructions
the sheriff and stated
up any points concerning
instructions. He
disregard
given
did not advise the
the instructions
them
by
tions and
the sheriff. The
left the courtroom for further delibera-
*29
subsequently
manslaughter
came back with a
verdict.
[Kangas, supra, p 205.]
adopted
dissenting opinion
Ap
This Court
the
in the
Court
peals,
Cain,
644,
(1980).
People
App
647-648;
v
94 Mich
order the jury trial where that had ordered new peals and the asking "to see the exhibits had a note sent by send- responded the had transcript,” judge and the room jury the to the door of ing bailiff with a jury, the note from the the exhibits and transcript that judge, notation added "There was This Court said: in evidence. Fur- room. jury presence no unauthorized ther, trial court communicated correctly Id. transcript in evidence.” there was no jury Anderson, 40- Earlier, found this Court had 41; 340 reversal where requiring was not error there and after begun had before deliberation judge, determined with counsel and he had consulted instructions, told there would be no additional begin room to at the door of the jurors deci- This Court said that its their deliberations.18 approval in any way be taken as sion "should not stating judge he would discuss concluded his instructions instructions, lawyers, no and if there were additional them with he would then come no more there would be to the room and advise that instructions, whereupon "any verbal communication between determining instruc that there were no further us shall cease.” After would, tions, judge with the consent of both announced that he deliberations, apparently counsel, advise the to commence did so. follow, procedure he would thus had announced justices agreed lawyer. objection All the no was made defendant’s requiring majority said it would no reversal. The that there was not count as emphasized error commenced, whether deliberations had factor parties’ leave had acted with "the rather any objection any party party voiced and no or counsel for *30 added.) Id., (Emphasis p judge’s proposed procedure .” 40. . . . People by Dissenting Levin, J. employed practice It an in case. was this the of prejudicial procedure.” potentially and unwise Despite reversal,” "harsh” the rhetoric—"strict characteriza- "automatic” reversal the rule—and tion, (or unreported reported decision no there is aware) the Court of of we are of which decision19 hi) (see ordering part trial, where, Appeals a new responded although without the parties, consulting lawyers he the for with the first did so writing in the the record not on in albeit courtroom. practice” simpler, better, and wiser "the
While require might to communi- the indeed be only from the bench with the cate practice, many judges that follow courtroom,20and transcripts in appears and in Pannell from transcripts abeyance we cases, and from other examined, that the actual time to time many from have respond judges from practice to notes is to of penned response jury by on the handwritten separate jury’s note or other written note or response oral handed to communication._ Brigham this Court reversed than the decision Other
Marks, supra. 40-41, Anderson, pp supra, said: this Court case, I showing and simply of no There is colleague’s trial is not my that a new conclusion
concur required, not be of deliberations should commencement but the not be taken This view should in the determination. a factor any way employed It approval practice in this case. as procedure. potentially prejudicial The bet- judge unwise and was an require ter, practice trial simpler, would and wiser jury only in the court- from the bench with the communicate room suggests experience the record. While and on time-consuming proce- may dure, factfinding process, be a cumbersome sometimes integrity preserve paying price worth it is a jury independence, appearance consumption judi- expense, delay, avoidance of appellate room evaluation involved resources cial contact [Emphasis jurors. added.] court and between the *31 436 Mich Dissenting by Levin, J. To extent that this Court’s decisions and the recognize practice court sponding do rules not of re- jury by separate to the note or other response, written fying this Court should consider modi- recognize the court rules to may respond either in the courtroom note or response, long other written as as the does consulting lawyers so after first with the for the parties in the courtroom or in chambers on the presence record, and in the of the defendant in a response case,21 criminal is communicated exchange oral between the jurors and the court officer when he returns to the judge’s response. room with the written
ii majority asserts that "the realities of trial practice lead us to the determination that goes beyond harsh rule of automatic reversal necessary safeguard right limits of a defen- " day-to-day dant reality to a fair trial.”22 That and 'the Michigan”23 together
of courtroom life’ society with "the interest of in the administration justice, of and the interest of the state in the judicial effective use of its and law enforcement resources”24and "concern for the victims of crime” ("it put is unconscionable that a victim must be through another trial in futile reverence to a rule
21See n 3. 22Ante, p barring parte 142. The rule ex communication with the developed cases, applies in both civil and criminal with equal safeguards only force in civil and criminal cases. The rule right trial, of the defendant in a criminal case to a fair but the right people safeguards to a fair trial in a criminal case. It also rights plaintiffs and defendants in civil cases to a fair trial. 23Ante, p 162.
24Id. Dissenting Opinion Levin, J. justice”)25 interests of fails to serve the which adopted. persuade that a new rule should be them showing prejudice. The "new rule centers on purposes broadly preju- rule, we define For ”26 possibility prejudice.’ 'any reasonable dice as
A majority goes classify on to communications deliberating categories: into three encompasses "supplemen- —Substantive, which law”; instructions on the tal *32 including —Administrative, re- "instructions pieces garding availability of certain of evi- encourage a and instructions dence continue its deliberations”; —Housekeeping, described as communications regarding a officer meal "between a court facilities, orders, matters consistent rest room general 'housekeeping’ that are un- needs being any way related in to the case decided.”27 carry A would substantive communication presumption prejudice. housekeeping A commu- of carry presumption preju- nication of no would dice. An administrative communication would presumption. carry no object
A failure of defense counsel to to a sub- preclude appel- stantive communication would not late assigning appeal. from error on A counsel object failure to to an administrative communica- tion, however, "will be taken as evidence that the prejudicial.”28 administrative instruction was not Where there has been a communica- substantive prosecution tion, would have burden 25 Id.
26 Ante, p 142.
27 Ante, p 144.
[28] Ante, p 143. 436 Mich Dissenting Opinion Levin, J. showing” rebutting "by firm and definite regard prejudice”29 to whether "absence objected. lawyer there has Where defendant’s trial communication, "the bur- an administrative been nonobjecting party persuasion den of lies with the communication lacked to demonstrate lawyer any prejudicial effect” if the defendant’s objected trial level.30 A defendant must at pre- object housekeeping to a communication to a firm and defi- serve the issue and "must make nite showing presump- effectively rebuts the which prejudice.”31 tion of no
B majority classify the would communications cases as administrative at communications.32 The issue instant
majority concludes that "the record evidence indicates that neither defen- 'any possibility reasonable dant has suffered prejudice’ as a result of the communications.”33 majority The Appeals reverses the decision Court France, where defendant’s convic- ordered, tion was reversed and a new trial was and affirms the decision of the Court of Appeals App Pannell, the defendant’s conviction affirmed.
where
iii We would affirm the decisions of the Court of Appeals Pannell, and, thus, and both France Appeals, would, with the Court of affirm Pannell’s (Emphasis original.) Id. 30 ld.
31Ante, p 144. lawyers object 32 "France’sand Pannell’s trial did not when made aware of the communications. 33Ante, p 144. France Dissenting Levin, J. France’s conviction reverse conviction remand new trial. for a
A left was instructed France, after the agreement judge courtroom, the obtained parties event the of counsel for judge them exhibits, could send asks for through later, An officer. hour a court to the diagram asking see a sent a note complainant house and the Brenda Villanueva’s prosecution. produced by the that were exhibits reported subsequently judge the record on The officer "to tell them a court that he had instructed diagram an wasn’t made on the board that can exhibit, of the exhibits thus it’s not one response brought They’re was [sic] to them. given okay.” to them. exhibits were And the judge another had received said that he The testimony, asking well as as to hear France’s note prosecutor testimony. The Villanueva’s Brenda requests. France’s had no comment on said he objection lawyer to the han- no said that he had diagram dling in which in the manner responded, like the that he would but had testimony of both wit- hear the entire played testimony back nesses. After jury, jury resumed its deliberations. p.m. response judge reported 4:30 at legal jury request criminal definition of for a
to a type- jury conduct, he had sent to the sexual sexual conduct version of criminal written approved by degree earlier that had been second reported lawyer. that he also France’s p.m. jury at 3:45 a note from the had received report police "May inquiring: on see the we Exhibit into an exhibit? entered Brenda that was *34 436 by Dissenting Opinion Levin, J. response "And to them said: #4?” not re- 4 was marked but was was that Exhibit therefore, evidence; and, not we were ceived give And that at 3:50 he p.m., to them that.” able stating: note "We have reached had received a verdict.” complainant, Villanueva, had been Brenda impeached original statement with her originally police police 4. She told the set forth exhibit perpetrator, identify could not that she alleged the trial. It was but identified France at that trial exhibit there other inconsistencies between the were reported testimony and the statements 4.34 argues appeal
France on that the court officer jury "something” may that have told the would 4 should have led the to believe that exhibit ignored evidence. because did constitute argues slight "[a]ny He clerk in this area could have led the disregard misstatement impeachment
substantial evidence. Such guarded against a misstatement when counsel is present help formulate language.”35_ hours, During early morning France broke into the home of Brenda Villanueva. Villanueva identified France as the man who her, put gun money. awakened in her face and demanded Villa that as France moved around the first floor of her then touched her he threatened her with a knife nueva testified home with her, happened, breasts. When this Villanueva screamed and ran out the front door. France fled. France testified in his own behalf and confessed that he broke into Villanueva’s home with the intent activities in steal. He described all his great detail. He told the that he made a lot of noise breaking into the house because he wanted to be certain that no one was home. testified he into France went Villanueva’s bedroom saw leaning upon quiet her the bed. He told her to be and took her having any weapon anything downstairs. France denied sort of designed weapon. fashioned or ing nervous when she could not find her to look like a France denied threaten- Villanueva, acknowledged got to kill but that he more and more purse. argues: lawyer France’s France Dissenting Opinion Levin, J. sure,
To be France’s trial lawyer responded *35 objection he had no the judge reported when what had Had lawyer occurred. France’s the objected, officer, and, read, court been after the verdict had each member of the and the jury, possibly judge, could questioned have been sworn and by the prosecutor But lawyer. and France’s it was already too late have attempted any to to miscom- rectify by munication the instruction. jury corrective allegedly jury The court the clerk instructed to tell the that pcr map impeach the the particularly evidence of house and the the used to [exhibit 4] Amy victim and were evidence. error not This was important jury clerk the because the instructed on course, easily its use. she and Of could as have told something them these items tute evidence. This is a court that would led the have to believe that disregarded they to be were because did consti- particular problem here because the considered, only pursu- that instructed evidence could be cji Any slight by ant area . . to . . misstatement the clerk disregard impeach- led the could have to substantial guarded against ment evidence. Such a counsel instructions here constituted sufficient is when misstatement present help language. to is formulate the The clerk’s may well have affected the verdict and so potential prejudice require to a new trial. crucial, impeachment particularly The evidence was itself the pcr, damaged general credibility because it the the of Com- plainant Amy specifically impeached and and on the evidence pcr Amy whether Defendant was The that armed. indicated police originally nothing told the had .... that she seen This directly testimony contradicted her that she had a knife- seen pcr object. Complainant like not anyone. Defendant at trial. Also the of The indicated herself did get good perpetrator identify identify at a look and so could not alleged ability This conflicted with her to pcr indicated that unsure she was perpetrator gun ambigu- or whether the had a a knife. Such ity weapon question a would lead whether was hotly involved at all—a contested issue here where Defendant having any weapon, primary denied as his There was defense. pcr testimony regarding much Defense counsel referred to it There was possibility and discussion at trial. closing extensively of .... certainly potential prejudice and a reasonable of here. pcr question generated Also the answer to the on the answering question, verdict. Within five minutes after They reached verdict .... were no doubt undecided impeachment Any because of this to a evidence. answer question had quickly that causes a verdict so cannot said to have on no affect the verdict. Dissenting Opinion Levin, J. on moved Finger” had written "Moving The lawyer France’s half hour before over an require lawyer To opportunity object. an given his to preserve in order inquiry, to insist on an position. him in an awkward position, puts client’s challenging act not be some lawyer The would conduct. prosecutor, judge’s but rather position questioning put lawyer occurred, of what accuracy judge’s report the court seeking "cross-examination” officer, prove jurors judge, and possibly incomplete. it was inaccurate hearing be both the officer would his court would be principal a witness. The witness on the officer, state just who has heard to have supposed what the court officer was record establishing If the succeeds lawyer said. *36 was the court said more than the officer officer said, and the supposed to have the court officer embarrassed, say to the least. very would be judge in day have to that court lawyer may practice The the too day. expecting after Is it not much to that seek to embarrass lawyer require he think judge? court officer and the I so.36_ adoption tripartite by the set forth classification however, would, inquiry, majority and not to require lawyer to seek an such obligingly say objection” judge reports that he "no when has, parte, jury. ex authorized an oral communication with the who, parte inquiry, judge responded ex A after he has to a record, reports, concerning the on the to counsel communication rule, jury, required, possibly by to amendment of the should be an jury, explain why engaged parte ex he in an communication with so, i.e., attempted he was unable to do to reach counsel but longer responding "undue in have in have waited would resulted Salvatore, supra, (Emphasis original.) delay.” p 21. in See n lawyer’s objection may no be seen France’s statement that he had communication, "waiving” firstly parte secondly the commu- as the ex oral, evidentiary concerning being thirdly hearing nication an judge actually what and the court officer and what said said, again jurors noteworthy anything, response. that in if in It is right implicates the case asserted constitutional a criminal of the defendant waiver throughout Rogers present See to be trial. Harris, supra. People Percy n 3 United States and Dissenting Opinion Levin, J. expressed in
This Court’s conclusion Zaitzeff impossible, difficult, it if not that will be to recon- actually struct what communications experience. occurred where there are oral product
with the lapse, What occurred France was a infrequently, that The reason such almost never is seen to occur.
departures do not is be- occur judges cause know that oral communication with a deliberating jury no-no, is an and we absolute keep way by retreating should "en- couraging” compliance with the rule.
B We would affirm defendant’s conviction Pannell. While the trial violated this Court’s responding decisions and the court rules in to the consulting lawyer without first with Pannell’s prosecutor, readily and the we can determine any prejudice whether there was to Pannell’s rights judge’s failure to have done so be- responded orally. cause he with a note and not expressed inability Pannell had its morning to reach a verdict on the of the second day imagine argu- of deliberations. cannot We lawyer ment that could Pannell’s have made that persuaded judge, early would have so the that the jury’s respond deliberations, other than jury should continue to deliberate. saying
We do not wish to be understood as must be shown when the violates responds the rule and without consult- ing lawyers. saying with the Rather we are *37 prejudice, where is manifest there nowas rever- required sal is because of a failure to consult lawyers responding. the before
IV argument society that the interest of in the Mich 138 436 Levin, J. Dissenting adoption of a requires the of justice administration the record of reversal. out rule is not borne new Appeals of the Court of eight decisions There are aware) (or which we are unreported reported decided, re- since Zaitzeff was eighteen years the of im- a new trial because ordering versing the and a judge between communication proper cases the com- In each of these deliberating jury. and thus there orally, munication was delivered was said other actually no of what record of what he report after-the-event judges’ than the expected to occur: occurred or believes Stanton, —Marchlewicz v App 50 Mich (1973), where, retired jury after the had NW2d 317 deliberate, room and jury entered the judge foreman; the jury conversed with 546, 547; 233 —People Zeegers, App 61 Mich (1975), responded, where the court officer NW2d the court or knowledge approval counsel, just we con- jury inquiry, to a "[s]hould or all of the evidence?” tapes, sider evidence”; "all of the should consider jury Olson, 66 Mich 197, 198; —People App entered where and, after jury, room to talk to trial, verdict, motion for a new response to a room "nothing was discussed said recess and time when the would except course, resume, which, are within the subjects discretion”; Court’s sole 373, 375; Washington,
—People v
App
(1982), where,
case
as in the instant
—People Foreman, unpublished opinion per curiam of the Court Appeals, decided (Docket 14, 91819), October p No. where Washington like the in judge, judge and the France, judge responded instant case of to a note from the jury asking police reports to see by instructing a court officer to tell the jurors reports were not evidence police "the this case” (emphasis added); v France.38
—The instant cases of The Court Appeals, affirming the defen- Pannell, dant’s conviction in the instant case of captured the essence of this Court’s decisions Kangas, Zaitzeff, Heard, Cain, and the line that distinguishes cases required where reversal is without a showing of from prejudice cases where a showing prejudice is required, when it said: Cain, Lyons, as in the trial sent orally jury’s question.
bailiff to answer the In both cases, impossible it was to know what was said and, by consequently, bailiff to deter- mine whether any prejudice there was Pannell, rights. [People supra, p defendants’ 770. Emphasis added.] Similarly, when a enters the jury room and responds to an personally inquiry jury, from the accompanying See n 33 and text. Mich Dissenting Opinion Levin, J. "impossible generally was to know what said consequently, [judge] jury by and, to deter-
mine whether there rights.” Id.
defendants’ Eight Appeals eigh- by the Court of reversals suggests years stated teen rule *39 applied by Zaitzeff, this in Court Court requiring subsequent decisions, reversal without a jury showing prejudice where, after delibera- of begun, enters the tions have either responds inquiry from the room or to an interfering through orally officer, not court is may promoting with, rather it but society justice, of of in the administration interests of the in the effective and also the interests use of state judicial resources, and and law enforcement may concern for the that it also be consistent with avoiding unnecessary crime retrials. victims of
v Appeals judges A asked of Court of have number to reconsider "automatic reversal Court eight only rule.”39 have been reversals Since there eighteen appears years, the "automatic predicate reversal rule” for their not so automatic. request may, however, be instances questionable unreported reversal decisions Appeals. the Court of reviewing unreported decisions
The task of Appeals in criminal cases in order of the Court to concerning decisions communication locate deliberating certainly be a tedious would a one. think, however, if have there would
One questionable in unre- reversal been instances 39 Pannell, 311; supra, p Lyons, supra, p People 771. People v See v Kent, 780, 791-792; App 404 668 People NW2d See also (1987). . Dissenting Opinion by Levin, J. decisions, upon who have called judges ported change the rule could locate them this Court provide and thus evi- difficulty too much of their that we support dence exhortation an exhortation40 a rule that has replace with parte eliminate ex largely worked to reduce deliberating jury. communication with exhortation will experience The lesson of is that guard against parte ex communication See Wilson v Hart- deliberating jury. with a (1961), 188; ley, Mich NW2d Woods, Harper Salvatore discussed in n 12. This Court’s in ZaitzelT pronouncement result failure of exhortation. no present working. Judges longer rule is begins room after the to delib-
enter barring the rule ex judges obey parte erate. Most deliberating with a and con- jury, communication lawyers responding sult with the before to a note from the unless it would cause "undue de- jury, *40 so, arrangements to do have been made in lay”41 respond advance how the should to judge specific inquiries.42 a rarely judge responds
We see case where a to inquiry except stenographi- an from the on a jury record or a note or other cally by transcribed that If writing part becomes of the court file. trial judges perceive they respond that off may orally record, progress the the that achieved in has been 40 majority states: [Cjonformance been, with the court rules has and continues be, discouraged by [Ante, p Emphasis this Court. 142. added.] 41Salvatore, supra, p (emphasis original). n 12 21 42 example, lawyers together may put For the exhibits and them,
agree room, jury they may jury if the that without need for the asks for be sent into the judge to consult further with counsel. 138 Mich 436
188 Dissenting Levin, J. ex barring the rule with obtaining compliance deliberating jury may awith communication parte less com- become may "busy” judges Some be lost. barring parte ex communica- the rule with pliant requests, with jury responding tion when appel- for the grist more there will be result are trou- who judges Appeals mill. Court of late troubling find more rule present may bled circuit were may result added workload to backslide judges Court and Recorder’s Ap- the Court work for provide more thereby peals. in the connection, noteworthy it is
In this
this Court’s
for
being
abeyance
held
five cases
cases,
Appeals
the Court
in the instant
decisions
case:43
every
affirmed the convictions
Bethea,44
responded
—People v
where the
43
requiring
Appeals
error
that there was not
found
The Court
following
in the
cases:
reversal
(1974),
329;
Johnson,
App
People
where
220 NW2d
v
53 Mich
stenographer
room and reread
to enter
instructed the
Court
lawyer
prosecutor
presence
and defendant’s
instructions
Rushing v
agreement
this was done.
pursuant
reached before
bailiff,
(1984),
Co,
121;
App
where the
Wayne
138 Mich
NW2d
door, momentarily
entered
responding
threshold.
on the
to a knock
began asking
jurors
that when various
He later testified
judge.
simply
questions,
note for the
told them to write a
he
trial is
Appeals
whether a new
also considered
Court of
has
particular juror
before the
required
converses with
where
Szopko v
begins
ordered in
A new trial was
to deliberate.
64;
Transit,
App
Marine
Kinsman
conversation, without
judge had an off-the-record
where the
presence
that had occurred
counsel,
concerning
particular juror
an incident
similarly
during
Court
course of the trial. The
Harris,
supra,
People Percy
the conversation
n 3
where
so held
again
the trial.
(1974),
during the course of
an incident that had occurred
concerned
Bennett,
App
—People
v
sent a note
where the
Ross47
break,
requesting a fifteen-minute
defense counsel
unavailable,
was
and the
instructed
respond
court officer to
could
orally
jurors
minutes,
a break and return in
take
fifteen
and
related
on the
was
record after
the noon
recess;48_
45Unpublished opinion per
Appeals,
curiam of the Court of
decided
97464).
(Docket
4,1989
January
No.
Appeals
requiring
The Court of
found that
there was no error
Pannell,
citing
People
supra, People
reversal
its decisions in
v
n 39
v
Brown,
428, 429-431;
App
Allen
People Kent,
159 Mich
judge said he would wait a few but not later than six o’clock. party objected. guilty Neither minutes reversal: returned with a verdict ten requiring The court concluded later. that there was no error present egregious The facts case are even less than Kent, apparently only those in door to the room which the in the that since the bailiff knocked on the then, deliberating response jury’s request, informed the trial deliberating. apparent was almost finished It is not the bailiff entered the room or that he interacted with Brown,
jury. merely messenger. [People He was v Allen supra, p 431.] Ross, supra, The Court in n 47 also relied on its decision in (1989). Montgomery, App 501; *42 138 436 Mich 190 by Dissenting Levin, J. 501; Montgomery, App
—People (1989), the asked the foreperson where lunch, the go judge if could to officer the jury court informed the officer so approved, the court at return 2:15 jurors and that were to this communi- p.m.; the informed counsel of judge objection;49 there no cation and was (On Rehearing), —People Wytcherly where the 440 NW2d App a responded writing note from people it was to two stating that down verdict working.”50 reaching agreement, "keep a from total Appeals the Court of affirmed convic- While Montgomery, although Ross tions officer, there orally through a court was responded improper influ- little risk of miscommunication or in a statement on deliberations jury’s ence recess take a fifteen-minute or that could jurors go a statement that could lunch p.m. at 2:15 There was no and were return there Montgomery Ross or suggestion respecting subject matter communication any their deliberations.
vi a classifica- majority proposed tripartite has of ex appellate parte tion for review communica- court with a by tions court or a officer deliber- substantive, administrative, ating jury: house- keeping. and is not
Where the communication is oral a note or stenographically by transcribed other record, writing preserved part as parte questionable drew "an ex The Court distinction between officer,” parte by and an communication court ex communication the p judge. Montgomery, supra, 503. rehearing Appeals appeared to the Court On both judge responded. had been consulted before the counsel Dissenting Opinion Levin, J. generally appellate court will not have an ade- quate record on which to base such a classification. majority nevertheless states: Upon appeal, upon reviewing it is incumbent categorize court to ñrst the communicationthat is appeal. necessarily
the basis of the This will lead party to the determination of whether a has dem prejudicial, onstrated that the communicationwas or that the communication lacked prejudicial reasonable [Emphasisadded[51] effect. *43 proposed tripartite begs what, classification question, namely cases, in most is the central respecting whether the communication was subject jury’s deliberations, and, matter of the particularly, more it whether was of a sort that pose any possibility prejudice. could reasonable of Clearly, once it is that established a communica- only tion, written, orders, oral or concerned "meal facilities, rest room or matters consistent with general 'housekeeping’ needs that are unrelated in any way being decided,”52it to the case would be extraordinary any possi- for there to be reasonable bility as a result of the communica- Similarly, agree, tion. I would a statement pieces unavailable, "certain of evidence” are will ordinarily pose any possibility not reasonable prejudice.53 issue, not
The troublesome where there is a occurred, written record of what is a factual one: only Whether the in France told a police report54 is not an exhibit or whether what reasonably was said the court officer was sus- being ceptible understood as an instruction that 51Ante, p 143.
52Ante, p 144.
53Ante, p 143. case, deposition transcript. inOr another 436 Mich Dissenting Opinion Levin, J. jurors of the to consider the contents
the police report were not Indeed, when a asks
as evidence. police report in evi- that was not received for a may appropriate exhibit, for the be dence as an police explain that while the to report exhibit, contents, as related on is not an may stenographic record, be considered the impeach assessing credibility and reported police whose statement witness attempt report, jurors should through memories, testi- recall, mony their collective
regarding police report. response request judge’s for an exhibit and not introduced into evidence that was marked may "supplemental encompass, effect, in thus law,” and thus constitute a sub structions on administrative, stantive, than an communic rather lawyers can sure that will so ation.55 One contend, tripartite rightfully so. The classifica resolving question tion will not assist possibility there is reasonable whether response police report prejudice in an oral that a that was marked as an exhibit was evidence.56 "encourag[ing] jury to continue An instruction may also be a substantive com its deliberations”57 munication, possibly includes, if the communication *44 supplemental include, in if it fails to along law, the lines of the instruc struction on the adopted People Sullivan, tion this Court in (1974). 324; prosecution majority place on the would rebutting prejudice by "firm a claim of burden showing” prejudice” and definite of "an absence and the where the communication is substantive 55 Ante, p 143. ante, ante, 37; Foreman, Washington, preced pp See 184-185 and n
ing n 38. 57 Ante, p 143. Dissenting Levin, J. persuasion” "burden of to "demonstrate [an communication which the de- administrative] [to objected] fendant any prejudicial lacked effect.”58 If the "substantive” or "administrative” communica- recorded, tion is stenographically or there is other communication, written record of the there will be nothing further to "show.” And then it will for be appellate court to determine whether there was any reasonable possibility prejudice. If there stenographic record, is not a or written prosecution will position be in no better than the defendant to "show” whether there was or was not prejudice. sum, where there is not a stenographic or
other contemporaneous written record of the com- munication, the prosecutor will not be able to show, and an appellate court generally will determine, unable to whether the communication "substantive,” is "administrative” may, case, a rare even have difficulty determining whether an oral communication is "housekeep- ing.” Where there is a contemporaneous written communication, record of the appellate court will generally assessment, be able to make an regard to whether plaintiff in a civil case prosecutor or a in a criminal case or the defendant, in a case, civil or criminal has the burden of persuasion, of whether there reasonable possibility prejudice, though even against rule ex parte communication with a deliberating jury was violated.
VII Reference has been made by the majority decisions of the federal courts.
In United Mesteth, States v 528 F2d 58Ante, pp 143-144. *45 436 138
194 by Dissenting Opinion Levin, J. (CA deliberating 1976), 8, responded to a testimony certain reread requests have jury’s left- or the defendant was and to be told whether 'no’ "writing right-handed. judge responded by The notes, delivering signature” on the and his through the The them to the marshall. court’s that we approach is consistent with analysis believe to be correct.59 Stephens, 662 F2d 181 see Black v
Similarly, York, v (CA United States 1981), 830 885 3, F2d (CA 1987), v Minolta 748 1382 Corp, Acree 8, F2d (CA 10, 1984), Walden, 406 Corp Motors v General Wood, (CA 1969), v 10, 321 F Gleeson F2d 606 (ED Pa, 1970), by majority, 118 cited Supp " 59 long recognized orderly 'the conduct of It has been ” " present person jury’ requires parties by 'in or trial by proceedings impan at all from the time the counsel States, discharged Rogers 422 until it is v United eled US 2091; [38]; quoting Fillippon 95 45 2d 1 35 S Ct L Ed Co, 435; 250 39 S 63 L 853 v Vein US Ct Ed Albion Slate (1919). recognized presumption of This court has that a presence instructing arises from court’s of outside defendant, presumption "in some instances but giving may a 356 indication lack be overcome evidence clear States, 709, (CA 8, prejudice.” Rice v United F2d 1966). 1975) Treatman, (CA 8, See also States v 524 F2d United (CA Hutto, 8, 1975), v 508 F2d 890 and cases and Jackson Decisions applying right F R P 43 clear the Crim make cited. jury’s open request defendant have a answered court heard, opportunity only after there has been to be but a may Rogers of Rule 43 be harmless error. See v violation States, [39-40]; Reynolds, supra States v 489 F2d United United (CA 1969). (CA Schor, 6, 1973); 2, States United v F2d determining the test is harmless is And whether prejudice.’ for whether error " 'any possibility of there exists reasonable ” supra Reynolds, States at 8. United alleged instant communications in the case are upon jury, they to affirmative delivered outside had a effect nor were of an have coercive nature, such as the instructions substantive presence of the defendant Evans v 1960). (CA States, only F2d 393 court’s United trial requests. response simply to Thus there was no was refuse error, possibility prejudice, any, if reasonable harmless. Mesteth, supra, p States [United 335.] Dissenting Opinion Levin, J. *46 appears response where also it was writing or transcribed on the record.60_ 60 appears by majority It that in two of the cases cited that the jury Reynolds, communication to the 59 was oral. In United States v n 7-8, supra, pp the court said: Reynolds’ complaint main is that the trial communi- jury presence cated with the outside the of or his defendant during jury counsel. The record reveals that foreman asked the bailiff if the deliberations the jury height could have the of Reynolds. relayed inquiry defendant The bailiff judge’s secretary repeated judge. who turn it to the
judge, using
order,
system
the same communication
in reverse
jury
informed the
it could have no additional
information.
[Emphasis added.]
43,
P, explicitly
Rule
FR Crim
states that "The defendant
present
stage
every
shall
...
at
. . .
the trial
.” The
cases hold that it is error for the court to instruct or communi-
cate with the
in the absence of counsel and without notice
States,
(CA
Chang
805,
to them. Ah Fook
v United
91 F2d
810
9, 1937);
(CA
Marken,
9,
186,
United States v
457 F2d
188
1972).
requiring
present
stages
The rule
that a defendant be
at all
together
52(a),
of the trial must be considered
with Rule
FR
P,
provides
Crim
regarded.
which
that harmless error
is to be dis-
(CA 5,
Gradsky,
1970);
United States v
434 F2d 880
States,
(CA 1969).
6,
Thus,
Yates v United
418 F2d 1228
a
forbidden communication does not constitute reversible error in
every
by
case. "The standard
which to determine whether
'any
reversible error
. .
occurred
. is . . . whether
there is
”
possibility
prejudice.’
States,
reasonable
Wade v United
142
(1971).
App
[360];
1046,
present
US
case the
DC 356
441 F2d
1050
In the
told the
it could have no further informa-
tion.
possibility
This communication did not create a reasonable
prejudice.
Kansas, Inc,
951,
In Reazin v Blue Cross & Blue Shield of
899 F2d
(CA 10, 1990),
the court said:
argues
Blue Cross also
the district court "erred in
permitting private communications between its law clerks and
jury.”
the
with the
towards
. . . We find no error. The court’s communications
progress
making
all related to the
reaching
a verdict and occurred after the
had
deliberating
period
been
for
considerable
of time. The record
"[n]othing
confirms the district court’s conclusion that
was done
prior knowledge
approval,
acquies-
without the
or at least
cence, of counsel . . . .”
v Blue Cross & Blue Shield of
[Reazin
Kansas, Inc,
(D
Kan,
Supp
1987).] [Emphasis
663 F
added.]
cases or US F2d 521 NJ, do not cited Butler, jury. deliberating States with a United court officer Pennell, (1987); App United States DC 822 F2d 1191 (D Dinorscio, (CA 6, 1984); Supp F States v United 1987).