How Should The Judge Handle A Jury Request To See The Video?

People v. Lewis, 2018 IL App (4th) 150637 (April). Episode 514 (Duration 6:27)

It’s within the court’s full discretion to bring the jury back into the courtroom to view recorded evidence after deliberation has already begun.

Charges

Defendant was charged with home invasion and domestic battery. He was acquitted of home invasion but convicted of home invasion.

Jury Request

During the deliberation the jury requested to hear the 911 call again.

Issue

Defendant argues it was a structural error to influence the jury’s deliberations by bringing the jury back into the courtroom for the replaying of the 911 recording.

Structural Error

Because structural errors require “automatic reversal,” whether a structural error was invited is irrelevant because reversal nevertheless would be “automatic” in order to preserve the integrity of the judicial process. People v. Belknap, 2014 IL 117094, ¶ 85.

Conflicting Opinions

With all due respect to our distinguished Third District colleagues, we disagree with all of the views they expressed in McKinley. See People v. McKinley, 2017 IL App (3d) 140752, ¶ 44 (March)

Suggested Procedures When Replaying a Recording to a Deliberating Jury

To be clear, we now reject outright the argument that this procedure is even erroneous, let alone structurally erroneous.

If a deliberating jury requests to hear an audio recording or to see a video recording again, the trial court does not have to send the recording and equipment to the jury room but may instead exercise its discretion to bring the jury into the courtroom for a replaying of the recording.

When a deliberating jury returns to the courtroom and, in the presence of the judge, the parties, the lawyers, and court personnel listens again, in silence, to an audio recording, the jury does nothing different from what it did before, when the recording originally was played. Assuming the trial court has properly instructed the jury regarding this procedure, we adhere to the majority view and reject the notion that replaying an audio or visual recording is improper.

The Court Should Instruct

If the court chooses to have the recording replayed in the courtroom, the court, parties, and counsel must be present to view or hear the evidence, and the court should instruct the jury not to discuss the evidence while in the courtroom.

2. The court should also in the jury’s presence admonish everyone else in the courtroom not to comment on the evidence, communicate with the jury, or try in any manner to influence the jury.

3. Further, to avoid the concerns expressed by Justice Holdridge in his dissent, the court should instruct the jury that after the replay, the jury will return to the jury room and should then continue its deliberations, which may include, if it wishes, the replay.

Holding

Accordingly, we conclude that if a jury, during its deliberations, requests to see or hear a recording again, the trial court need not send the recording and equipment into the jury room but instead may, in its discretion, have the jury brought back into the courtroom for a replaying of the recording.

Justice Carter is correct that “the mode and manner in which a circuit court allows a jury to review a piece of evidence” (in this case, the 911 recording) “falls directly within the scope of the court’s inherent authority to manage its courtroom.” McKinley, 2017 IL App (3d) 140752, ¶ 22 (majority opinion).

In the present case, the trial court did not give any instructions and admonitions, but in the record before us, we find no indicia of prejudice or anything improper having occurred during the replay of the recording.

Conviction affirmed.