THE COURTS
[234 PA. CODE CH. 6]
Jury Deliberations: Written Jury Instructions
[34 Pa.B. 2543] The Criminal Procedural Rules Committee is considering proposing to the Supreme Court of Pennsylvania that the Justices reconsider the current Rule 646 (Material Permitted in Possession of the Jury) provision that provides during deliberations the jury shall not be permitted to have written jury instructions, and amend the rule. The proposed amendments to Rule 646 the Committee is considering would provide the procedures for the trial judge in his or her discretion to permit the jury to have written jury instructions for use during deliberations. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed amendments to Rule 646 precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,
Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 100
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@pacourts.usno later than Friday, June 18, 2004.
By the Criminal Procedural Rules Committee
JOHN J. DRISCOLL,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 6. TRIAL PROCEDURES IN COURT CASES
PART C(2). Conduct of Jury Trial Rule 646. Material Permitted in Possession of the Jury.
(A) Upon retiring, the jury may take with it such exhibits as the trial judge deems proper[, except as provided in paragraph (B)].
(B) Within the discretion of the trial judge, the jury may be permitted to have written jury instructions for use during deliberations.
(C) During deliberations, the jury shall not be permitted to have:
* * * * * (3) a copy of the information[;].
[(4) written jury instructions.]
Comment * * * * * [The 1999 amendment to paragraph (B) makes it clear that the trial court is prohibited from sending written jury instructions with a jury for use during deliberations. See Commonwealth v. Karaffa, 709 A.2d 887 (Pa. 1998), in which the Court held it was reversible error to submit written jury instructions to the jury.]
Written jury instructions may include all preliminary instructions, instructions provided during the trial, and the instructions given at the end of the case. When written jury instructions are not available, a transcript or an audio or audio-video recording would be satisfactory under this rule.
* * * * * Official Note: Rule 1114 adopted January 24, 1968, effective August 1, 1968; amended June 28, 1974, effective September 1, 1974; Comment revised August 12, 1993, effective September 1, 1993; amended January 16, 1996, effective July 1, 1996; amended November 18, 1999, effective January 1, 2000; renumbered Rule 646 March 1, 2000, effective April 1, 2001; amended _____ , effective _____ .
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendment concerning written jury instructions published at 34 Pa.B. 2544 (May 15, 2004).
REPORT
Amendments to Pa.R.Crim.P. 646
Jury Deliberations: Written Jury Instructions INTRODUCTION
The Criminal Procedural Rules Committee is considering recommending that the Court reconsider the long standing ban on juries having access to written jury instructions for consideration during deliberations and amend Rule 646 (Material Permitted in Possession of the Jury) to provide in the discretion of the trial judge for the jury to be permitted to have written jury instructions for use during deliberations. These changes are intended to facilitate jury trial procedures, aid jurors in better comprehending the instructions, and align the Pennsylvania rule concerning written jury instructions with the procedures in a number of other state and federal jurisdictions.1
For a number of years, the Committee has visited and revisited the concept of jury trial innovations generally,2 and in recent months we have considered the specific issue of permitting the jury to have written jury instructions for use during deliberations.3 The Committee recognizes the interest among members of the bench and bar in having the jury receive the written jury instructions applicable to the case the jurors are deciding. We concluded, from the information we received from contacts in other states that permit the jury to have written jury instructions, and after reviewing literature discussing studies concerning the impact of written jury instructions on the judicial system,4 which found that in fact the fears concerning the possible prejudice to a defendant from providing written instructions to a jury, or that the jury would assess undue weight to the points of law in written instructions or misinterpret or misapply the law generally are unfounded, that providing the written instructions to the jury aids their comprehension without negative consequences, and often results in fewer questions from the jury about the instructions, which promotes judicial economy. In view of the positive findings in the recent studies of this issue, and the positive experience of the Committee members who practice in other jurisdictions, including the Federal Courts, that permit the jurors to have written jury instructions for use during deliberations, the Committee agreed it is time to reexamine Pennsylvania's prohibition on jurors having written jury instructions during deliberations and that the Criminal Rules should be amended to permit this practice.
DISCUSSION OF PROPOSED AMENDMENT TO RULE 646
After the Committee agreed that juries should be provided written jury instructions for use during deliberations, we encountered a challenge in determining how to incorporate this change into Rule 646. We reviewed the history of Rule 646, and found that although the paragraph (B)(4) language ''During deliberations the jury shall not be permitted to have written jury instructions'' only has been in the rules since 1999,5 historically the practice in Pennsylvania specifically has been discouraged since the Court first addressed the issue in Commonwealth v. Baker, 353 A.2d 406 (Pa. 1976) (plurality opinion).6 In addition, the Committee recognized that recent developments in trial practice generally have emphasized the necessity of developing procedures to improve the jurors' comprehension of the case they are hearing. We also recognized that there continues to be some resistance to a complete ''about-face'' change that would permit written jury instructions to be provided to the jury for use during deliberations. Taking into consideration the concerns of the opponents, the Committee identified several issues that require consideration in order to progress with this change.
The Committee first discussed whether written jury instructions should be provided to the jury in all cases, or only when counsel agree, or when the trial judge permits it. The Committee majority agreed that mandating this upon the trial judges was not necessary, although there was concern by some members that if not a mandated procedure, some judges would never permit this practice. The Committee also agreed that providing the written jury instructions to the jury when counsel agree was not a feasible option because often, especially in the more serious cases, opposing counsel are contentious and unable to agree on much, if anything, and this would result in additional appeals issues. Having fully considered and debated the merits of mandating the trial judges to provide in all cases written jury instructions for use during deliberations, or requiring the agreement of counsel, the Committee ultimately settled on leaving the question of whether to send written jury instructions with the jury for their use during deliberations within the discretion of the trial judge.
The Committee also discussed what the term ''written jury instructions'' encompasses. First, the Committee determined that written jury instructions may include all preliminary instructions, instructions provided during the trial, and the instructions given to the jury at the end of a case, and that what constitutes the written jury instructions that will go with the jury for deliberations would be left to the discretion of the trial judge. The Committee next considered whether there would be any legitimate substitutes for ''written jury instructions.'' Some members raised the concern that there may be instances when, for example, the trial judge has written jury instructions from which he or she reads, but deviates from the instructions, or the trial judge derives the instructions from various sources, or the particular court is unable to reduce the instructions into writing in a timely fashion, and therefore, the ''written jury instructions'' are unavailable. We agreed that, under these types of circumstances, a transcript or an audio or audio-video recording would be an appropriate substitute for the written jury instructions.
In view of these considerations, the Committee is proposing that paragraph (B)(4) be deleted, and a new paragraph (B), that would provide ''Within the discretion of the trial judge, the jury may be permitted to have written jury instructions for use during deliberations,''7 be added to Rule 646. The Comment also would be revised to explain that 1) written jury instructions may include all preliminary instructions, instructions provided during the trial, and the instructions given at the end of the case, and 2) when written jury instructions are not available, a transcript or an audio or audio-video recording would be satisfactory under this rule.
[Pa.B. Doc. No. 04-843. Filed for public inspection May 14, 2004, 9:00 a.m.] _______
1 From our research, it appears that Pennsylvania is the only jurisdiction that specifically provides the jury shall not be permitted to have written jury instructions for use during deliberations. Most jurisdictions permit the jurors to have written jury instructions; a few jurisdictions, however, remain silent on this issue.
2 For example, in the mid-1980s, the Committee explored areas of jury trial innovations including note taking by jurors and improvements in jury instructions, and in 1985, the Court adopted changes to then-Rule 1119 (current Rule 647) that required the trial judge to rule on requests for instructions before closing arguments and encouraged the judge to provide instructions on substantive matters to the jurors before and during the trial. See 15 Pa.B. 1733 (May 15, 1985).
3 Another area the Committee recently considered involves note taking by jurors. See 33 Pa.B. 2166 (May 3, 2003) for the Committee's Report explaining the proposal.
4 See, e.g., G. Thomas Munsterman, Paula L. Hannaford, and G. Marc Whitehead, Jury Trial Innovations at pp. 174--176 (1997), Leonard B. Sand and Steven Alan Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 NYU L.Rev. 423 at 453--458 (1985), and Justice Castille's dissent in Commonwealth v. Karaffa, 709 A.2d 887 (Pa. 1998) (the most recent Supreme Court decision addressing this issue).
5 This language was added following Commonwealth v. Karaffa, 709 A.2d 887 (Pa. 1998), in which the Court held it was reversible error to submit written jury instructions to the jury.
6 In Baker, the Court opined ''the inherent dangers'' in sending written jury instructions with the jury for use during deliberations ''outweigh the possible benefit to be derived therefrom''--the jurors may overemphasize the importance of the matters touched upon and ignore the totality of the oral charge--and stated this practice should not be followed. See also Commonwealth v. Oleynik, 568 A.2d 1238 (Pa. 1990) (it is reversible error to submit written jury instructions to the jury for use during deliberations because the possible prejudice to a defendant from providing written instructions to a jury universally outweighs any benefit such instruction might provide because a jury likely would assess undue weight to the points of law in written instructions and possibly misinterpret or misapply the law and that the undue emphasis on portions of the charge potentially undermines the integrity of the deliberative process), Commonwealth v. Karaffa, 709 A.2d 887 (Pa. 1998) (emphasizing holding and rationale expressed in Oleynik), and Commonwealth v. Byrd, 598 A.2d 1011 (Pa. Super. 1991).
7 Present paragraph (B) would become new paragraph (C).
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