Thursday, June 2, 2005

Scrushy Update- What happens When a Jury Can't Remember Everything

Looks like the deliberations in the Scrushy trial continue.  There has been only one note to the judge since our last post here - - with the judge responding by refusing to play back specific testimony from the trial. For details, see AP story in Birmingham Alabama News here.

The AP story in Birmingham Alabama News states that the judge wrote the jury "back in a note released by the clerk's office"  that  "[f]or me to read a small portion of the testimony to you from the lengthy transcript could unduly emphasize one bit of testimony to the exclusion of all other testimony." (see here)

Some may ask whether it is proper to playback specific testimony for a jury that is deliberating, or alternatively to provide that jury with a transcript of that testimony.   Actually it is a question that has come up in several appellate decisions.  In some of these cases because the judge did provide a transcript and the defense was then contesting on appeal, the propriety of this action.

There is one Second Circuit case (United States v. Criollo) that reversed because the district court announced to the jury during defense counsel's summation that the court was not going to readback trial testimony during the deliberations. But that decision was focused on the pronouncement of the judge prior to commencement of the jury deliberation that nothing would be readback.

Most courts give broad discretion to the judge to decide whether to readback testimony during deliberations. But a key factor is whether it will place "undue emphasis on a particular portion of testimony read out of context." (Criollo).  In the case of United States v. Rogers (6th Cir.), the court stated:

"This court has recognized 'two inherent dangers' in allowing a jury to read a transcript of a witness's testimony during its deliberations,... First, the jury may accord 'undue emphasis' to the testimony; second, the jury may apprehend the testimony 'out of context.' . . .  These dangers are 'escalated' if the jury makes the request after reporting an inability to arrive at a verdict..." (citations omitted)

This is not a comprehensive review of all the caselaw out there that deals with this issue, but it sure sounds like the judge is looking at the concerns expressed in some of these decisions in her response to the jury.   

But one does have to feel sorry for the jury in a white collar case that has gone on for some time.  It really is difficult for the jury to remember everything.


Addendum- See Wall Street Jrl Article here. (esp)

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