12.13Jury Matters During Deliberations
A.Separation or Sequestration of the Jury
Sequestration of a jury is within the trial court’s discretion. People v King, 215 Mich App 301, 304 (1996); MCL 768.16; M Crim JI 2.15. It is within the trial court’s discretion whether to permit jurors to separate after deliberations have started. People v Nick, 360 Mich 219, 225 (1960). Where the deliberations are lengthy, it is proper to permit the jury to recess from time to time and to go home at night. Id.
There are three categories of communication with a deliberating jury. People v France, 436 Mich 138, 142-144 (1990). These categories are discussed below. Ex parte communication with a deliberating jury is discouraged. Id. at 161. Consistent with MCR 2.513(B), a court must ensure that all case-related communications between the court and the jury are made part of the record.
1.Substantive
“Substantive communication encompasses supplemental instructions on the law given by the trial court to a deliberating jury. A substantive communication carries a presumption of prejudice in favor of the aggrieved party regardless of whether an objection is raised. The presumption may only be rebutted by a firm and definite showing of an absence of prejudice.” France, 436 Mich at 143.
An example of a substantive communication is where the jury asks the trial court for a further definition of a particular crime, and the trial court provides the jury with a typewritten definition of that crime. France, 436 Mich at 144, 146 n 9.
2.Administrative
“Administrative communications include instructions regarding the availability of certain pieces of evidence and instructions that encourage a jury to continue its deliberations. An administrative communication carries no presumption. The failure to object when made aware of the communication will be taken as evidence that the administrative instruction was not prejudicial. Upon an objection, the burden of persuasion lies with the nonobjecting party to demonstrate that the communication lacked any prejudicial effect.” France, 436 Mich at 143.
An example of an administrative communication is where the jury asks the trial court for an exhibit or police report, and the trial court responds that because those items were not received in evidence, they are unavailable to the jury. France, 436 Mich at 145-146. See also People v Marshall, 298 Mich App 607, 624 (2012), vacated in part on other grounds 493 Mich 1020 (2013)1 (prejudice was not presumed from the absence of a record regarding whether there were any communications between the jury and the trial court concerning four handwritten juror notes that were stapled to the verdict form, where each note referred to an evidentiary matter); People v Powell, 303 Mich App 271, 274-276 (2013) (the trial court’s instruction that the jury should continue its deliberations until it could reach an agreement was administrative in nature and did not violate the defendant’s rights to be present and to have counsel at a critical stage of trial).
3.Housekeeping
“Housekeeping communications are those which occur between a jury and a court officer regarding meal orders, rest room facilities, or matters consistent with general ‘housekeeping’ needs that are unrelated in any way to the case being decided. A housekeeping communication carries the presumption of no prejudice. First, there must be an objection to the communication, and then the aggrieved party must make a firm and definite showing which effectively rebuts the presumption of no prejudice.” France, 436 Mich at 144.
Committee Tip:
In order to effectively respond to written jury questions:
•Provide jury with envelopes and paper for questions;
•Meet with attorneys to see if an agreement can be reached on a response;
•Have attorneys review the written response;
•When next on the record, describe the question, agreement with counsel, and the response;
•Always obtain consent of counsel, on the record, for written, substantive communications with the jury.
C.Materials in Jury Room and Juror Exposure to Extraneous Evidence
The court must allow the jurors to take their notes (if they were permitted to take notes)2 and final jury instructions3 into the jury room when retiring to deliberate. MCR 2.513(O); see also MCR 2.513(H). The court may allow the jurors to take the reference document (if prepared under MCR 2.513(E)) and any exhibits or writings admitted into evidence into the jury room when retiring to deliberate. MCR 2.513(O).
“Consistent with a defendant’s right to a fair and impartial jury, ‘jurors may only consider the evidence that is presented to them in open court.’” People v Stokes, 312 Mich App 181, 187 (2015), quoting People v Budzyn, 456 Mich 77, 88 (1997). A trial court may not provide the jury with evidence that has not been admitted. People v Davis , 216 Mich App 47, 57 (1996). “Where the jury considers extraneous facts not introduced in evidence, this deprives a defendant of his [or her] rights of confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment.” Budzyn, 456 Mich at 88.
“To be successful in a claim regarding extraneous information obtained by the jury, a defendant has the burden to show both that the jury was exposed to extraneous influences, and that there was a real and substantial possibility that the extraneous influences could have affected the jury’s verdict.” People v Serges, ___ Mich App ___, ___ (2024) (cleaned up). “Generally, in proving this second point, the defendant will demonstrate that the extraneous influence is substantially related to a material aspect of the case and that there is a direct connection between the extrinsic material and the adverse verdict.” Id. at ___ (quotation marks and citation omitted). If the defendant establishes his or her initial burden, the burden shifts to the prosecution to demonstrate that the error was harmless beyond a reasonable doubt, by proving that the extraneous evidence was duplicative of evidence produced at trial, or that the evidence of guilt was overwhelming. Budzyn, 456 Mich at 89-90.
In Serges, the defendant contended that “the COVID-19 pandemic constituted [an] extraneous influence” and “insist[ed] that fear of the virus caused the jurors to fail to pay attention to the evidence, prejudge him for insisting on going to trial during a pandemic, refuse to engage in typically close-knit jury deliberations, and feel coerced to simply reach a verdict as soon as possible to escape the courtroom.” Id. at ___. However, because “the jury selection allowed jurors overly fearful of COVID-19 to opt out of jury service,” the Court reasoned that “defendant’s jury was comprised of individuals who were not so afraid of the virus that they would abandon their sworn oaths as jurors and ignore evidence in the case.” Id. at ___. “Nothing in the record indicate[d] that any juror failed to pay attention, let alone because of fear of COVID-19.” Id. at ___ (noting that the defendant’s contentions “merely rest on his speculation”). In sum, the defendant “failed to present any evidence that the jurors in his case disregarded their duty to deliberate fairly because of COVID-19.” Id. at ___ (rejecting defendant’s argument that “the trial court’s decision to hold the trial during the COVID-19 pandemic resulted in an unreasonably high risk that the jury would return a coerced verdict because of fears of contracting the virus or resentment against defendant for insisting on trial during the pandemic”).
The defendant failed to establish “that the jury was subject to any extraneous influence through the use of cell phones” where a juror “testified that jurors, himself included[ (for text messaging)], used their cell phones during breaks” but that “he had no personal knowledge for what purposes the other jurors used their cell phones.” People v Garay, 320 Mich App 29, 41 (2017), rev’d and vacated in part on other grounds 506 Mich 936 (2020).4
A juror’s statements to other jurors during deliberations “that he knew [a testifying officer] well, that [the officer] was an expert in firearms, and that they could be extremely confident in [the officer’s] testimony” did not constitute an extraneous influence on the jury because the statements “were based on [the juror’s] own personal knowledge of and experience with the officer,” and thus constituted an “[i]nternal matter[][, which] include[s] the general body of experiences that jurors are understood to bring with them to the jury room.” Garay, 320 Mich App at 41-42. “While [the juror] should have disclosed his relationship with [the officer] during voir dire, [his] statements did not provide him or the other jurors with any knowledge regarding [the victim’s] murder.” Id. at 42.
The jury’s use of a dictionary to define a relevant legal term is error, but is not per se prejudicial. People v Messenger, 221 Mich App 171, 175-177 (1997) (holding that the jury’s use of a dictionary definition of “premeditation” did not constitute prejudicial error because the relevant jury instructions were substantively identical to the dictionary definition).
A collective reenactment by the jury with a gun as to where the victim was likely sitting and where the gun should have fallen was not a sufficient basis for a new trial because the reenactment was based on trial testimony. People v Fletcher, 260 Mich App 531, 541-544 (2004). The Court of Appeals distinguished this conduct from a reenactment or experiment that takes into account “matters extraneous to the trial testimony.” Id. at 543.
“Assuming arguendo that [a juror’s experimental attempt to recreate the crime scene in his own home] constituted an improper extraneous influence on the jury,” there was no “real and substantial possibility” that the juror’s experiment affected the jury’s verdict where the juror did not share the results of his experiment with the other jurors. People v Stokes (Stokes II), 500 Mich 918 (2017).
D.Requests to Review Testimony or Evidence
If, after retiring to deliberate, the jury requests to review any testimony or evidence that has not been allowed into the jury room under MCR 2.513(O), “the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request.” MCR 2.513(P). If a court decides to permit the jury to review requested testimony or evidence, it “may make a video or audio recording of witness testimony, or prepare an immediate transcript of such testimony, and such tape or transcript, or other testimony or evidence, may be made available to the jury for its consideration.” MCR 2.513(P).
“[T]he mere presence of other people in the courtroom while the jury reviewed [video] evidence and then retired back to the jury-deliberation room [was] not enough to create a prejudicial chill” where “[n]othing on [the] record suggests even a remote possibility of a chilling effect on the jurors’ deliberations.” People v Flores, 346 Mich App 602, 611, 612 (2023) (rejecting defendant’s argument that “the presence of the judge, lawyers, and others in the courtroom, while the two videos were replayed, interfered with the jury’s ability to deliberate among themselves while watching the videos”). The Flores Court observed that (1) “no one outside the jurors themselves entered the jury-deliberation room,” (2) “no one in the courtroom communicated with the jurors, other than the trial court’s brief explanation about the replaying of the videos,” and (3) “there is nothing to suggest that the jurors were somehow barred from taking notes during the replaying of the videos.” Id. at 611.
If a court decides not to permit the jury to review requested testimony or evidence, it may order the jury to continue deliberating, “as long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed.” MCR 2.513(P).
It may not constitute an abuse of discretion for a trial court to deny a jury’s request for a copy of the entire transcript after deliberating for only a short time. People v Holmes, 482 Mich 1105, 1105 (2008); People v McDonald, 293 Mich App 292, 297 (2011).