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Second Circuit Holds Jury May Bring Indictment Home to Read

On Wednesday, the Second Circuit issued an opinion on an interesting question of trial practice and procedure: Is it permissible for the jury in a criminal case to take the indictment home to read on their own time?

In U.S. v. Esso (via WSJ Law Blog and the New York Law Journal), a case alleging a mortgage fraud scheme, jury deliberations began on Aug. 25, 2010, at about 3:20 p.m. At 4:25 p.m., the jury informed the court that it planned to leave at 4:30 p.m., and asked whether they could take the indictment home to "carefully read." The defendant's attorney opposed this request, arguing that reading the indictment at home is "akin to deliberating" and "akin to asking to take exhibits home," and also that the indictment "serves as the government summation." The government did not object to allowing the jury to take the indictment home provided that the jury was instructed not to discuss the indictment with family members or to deliberate outside the jury room.

The district court decided that the jury could take the indictment home, telling them it was "the same thing as reading it here in the jury room tomorrow morning at ten, it just saves some time." The court instructed the jurors not to show the indictment to anyone and not to do any research on their own. The next day, the jury returned and began deliberations, and convicted the defendant on both of the charges.

On appeal, Esso argued that he was denied a fair trial when the district court allowed the jury to take home the copy of the indictment -- an issue that the Second Circuit said appeared to be one of first impression in any federal or state court. The Second Circuit held that although it had its doubts about the wisdom of the practice,

we conclude that, so long as jury deliberations have begun and appropriate cautionary instructions are provided, permitting the jury to take the indictment home overnight does not deprive a defendant of a fair trial.

The Second Circuit acknowledged that sending trial materials home with jurors could increase the chance of exposing the jury to outside influences, and could overemphasize the significance of the indictment, which it called a "one-sided presentation of the prosecution's view of the case." It also stated that it "hasten[ed] to add that the better practice weighs against the experiment undertaken here." Nonetheless, the court said its holding was

mindful of the great discretion accorded to trial judges to manage their own courtrooms, and of the desirability of allowing a measure of careful experimentation with trial management procedures that may at first appear undesirable simply because they are untraditional. Practices that were once controversial -- such as permitting jurors to take notes -- are now commonplace.

Posted by Bruce Carton on June 28, 2012 at 04:26 PM | Permalink | Comments (0)

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