12.9Issues Affecting the Jury During Trial
“The court may authorize or require counsel in . . . criminal cases to provide the jurors with a reference document or notebook, the contents of which should include, but which is not limited to, a list of witnesses, relevant statutory provisions, and, in cases where the interpretation of a document is at issue, copies of the relevant document. The court and the parties may supplement the reference document during trial with copies of the preliminary jury instructions, admitted exhibits, and other admissible information to assist jurors in their deliberations.” MCR 2.513(E).1
MCR 2.513(H) states:
“The court may permit the jurors to take notes regarding the evidence presented in court. If the court permits note taking, it must instruct the jurors that they need not take notes, and they should not permit note taking to interfere with their attentiveness. If the court allows jurors to take notes, jurors must be allowed to refer to their notes during deliberations, but the court must instruct the jurors to keep their notes confidential except as to other jurors during deliberations. The court shall ensure that all juror notes are collected and destroyed when the trial is concluded.”2
The court may allow the jury to ask questions of any witness. MCR 2.513(I). “If the court permits jurors to ask questions, it must employ a procedure that ensures that such questions are addressed to the witnesses by the court itself, that inappropriate questions are not asked, and that the parties have an opportunity outside the hearing of the jury to object to the questions.” Id. The court must inform the jury “of the procedures to be followed for submitting questions to witnesses.” Id. See M Crim JI 2.9:
“(1) During the trial you may think of an important question that would help you understand the facts in this case. You are allowed to ask such questions.
(2) You should wait to ask questions until after a witness has finished testifying and both sides have finished their questioning. If you still have an important question after this, do not ask it yourself. Raise your hand, write the question down, and pass it to the bailiff, who will give it to me. Do not show your question to other jurors.
(3) If your question is not asked, it is because I determined under the law that the question should not be asked. Do not speculate about why the question was not asked. In other words, you should draw no conclusions or inferences about the facts of the case, nor should you speculate about what the answer might have been. Also, in considering the evidence you should not give greater weight to testimony merely because it was given in answer to questions submitted by members of the jury.
(4) On the other hand, if you cannot hear what a witness or lawyer says, please raise your hand immediately and ask to have the question or answer repeated.”
D.Jury View of Property or Place
“It is within the trial court’s discretion to order a jury view of the crime scene.” People v Unger, 278 Mich App 210, 255 (2008); see also People v Mallory, 421 Mich 229, 245 (1984). A crime scene may be viewed despite changed conditions, where the jury has been apprised of the changes. People v King, 210 Mich App 425, 432 (1995).
MCL 768.28 states that the court may order a view by the jury “whenever [the] court shall deem such view necessary.”3 MCR 2.513(J) provides:
“On motion of either party, on its own initiative, or at the request of the jury, the court may order a jury view of property or of a place where a material event occurred. The parties are entitled to be present at the jury view, provided, however, that in a criminal case, the court may preclude a defendant from attending a jury view in the interests of safety and security. During the view, no person, other than an officer designated by the court, may speak to the jury concerning the subject connected with the trial. Any such communication must be recorded in some fashion.”
Committee Tip:
Take a tape recorder along to the jury view to record any questions that jurors may have. Additionally, make a record of the jury view after returning to court.
Because the purpose of a jury view is to help the jury understand evidence already introduced at trial, a jury view should not be conducted until after the relevant evidence has been admitted at trial. Unger, 278 Mich App at 256-257 (nevertheless concluding that the defendant failed to establish prejudice resulting from defense counsel’s failure to object).
According to MCR 2.513(J), “in a criminal case, the court may preclude a defendant from attending a jury view in the interests of safety and security.” However, an accused defendant in custody has the fundamental right to be present at a jury view of the crime scene. Mallory, 421 Mich at 245-250; King, 210 Mich App at 432-433. A defendant may waive his or her right to be present at a jury view by affirmative consent, by failure to appear at the view when he or she is free to do so, and by disorderly or disruptive conduct at trial precluding continuation of the trial in his or her presence. Mallory, 421 Mich at 432-433; King, 210 Mich App at 433. Additionally, the trial court has discretion to order the presence of armed guards or the shackling of the defendant while in the presence of the jury at a view. Mallory, 421 Mich at 249.
The court is required to instruct the jurors regarding certain prohibited actions during the term of jury service. MCR 2.511(I)(2). Specifically, the jurors must not:
“(a) discuss the case with others, including other jurors, except as otherwise authorized by the court;
(b) read or listen to any news reports about the case;
(c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used to obtain or disclose information prohibited in [MCR 2.511(I)(2)(d)];
(d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following:
(i) information about a party, witness, attorney, or court officer;
(ii) news accounts of the case;
(iii) information collected through juror research on any topics raised or testimony offered by any witness;
(iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case.” MCR 2.511(I)(2)(a)-(d).