State v. Morgan, 423 N.J. Super. 453 (App. Div. 2011). Rule 1:8-8(a) states that a trial court, “in its discretion, may submit a copy of all or part of its instructions to the jury for its consideration in the jury room.” In this criminal case, however, the trial judge allowed the jury to take the jury instructions home for the weekend after the jury foreperson asked for the right to do that, stating that “[w]e want homework. We’re a studious bunch.” The judge did caution the jurors, though, not to use a dictionary to look up any of the terms in the charge or conduct other research while at home. After defendant was convicted on some charges but not others, she appealed, contending that it was improper to allow the jury to take the instructions home. Judge Fuentes, writing for a unanimous panel, rejected that argument.
Judge Fuentes recognized that a strict reading of the Rule “leans in favor of lack of authority” to allow jurors to take instructions home, since the Rule permits the instructions to be used “in the jury room” only. But the panel found persuasive cases from other jurisdictions that had allowed jurors to take instructions home. The fact that the trial judge had cautioned jurors not to use dictionaries or do other research ensured that nothing untoward would occur, since jurors are presumed to follow the courts’ instructions.
Nonetheless, Judge Fuentes went on to say that “the better practice weighs against such experimentation.” Allowing jurors to take instructions home “increases the chances that individual jurors may want to discuss these matters with family members or friends … and makes it easier for jurors to research legal issues on their own.” As a result, the panel cautioned trial judges “that the unintended, negative consequences that may flow from permitting such a practice outweigh the relatively minor disadvantage associated by disallowing it.” Judge Fuentes referred the issue to the Civil and Criminal Practice Committees to develop recommendations as to how to handle this issue.
That is a fine approach. But as the Supreme Court of California noted in one of the cases cited by the panel here, “it would be entirely unrealistic to expect jurors not to think about the case during the trial and while at home.” For that reason, that court approved a jury instruction stating that jurors could think about the case while at home. With or without the written jury instructions, jurors will think about the case at home. With or without the instructions, jurors might disregard the judge’s directives, and their oath, and do research outside the trial record. In the end, the system must rely on the honor of the jurors. It seems largely harmless to do what the trial judge did. The cautions that the judge gave are essential, however, if this practice is to be followed.
The jury homework question was part of a larger issue that involved the trial judge’s communication with the jury outside of the presence of counsel. Not only did the judge have the “jury homework” discussion with the jury in the absence of counsel, the judge had another discussion with the jury, again without counsel, at the end of the first day of deliberations. That discussion involved arrangements for the next day. That too was a ground for appeal. The panel expressed its “outright condemnation” of “ex parte” communications between a judge and jury. But Judge Fuentes found no basis for reversal, since the discussion at issue “addressed only innocuous scheduling issues unrelated to the substance of the jury’s function.”
Fortunately, both the “jury homework” and the “scheduling” discussions were transcribed. Absent that, there might not have been a basis to review the issues, and reversal might have been required for that reason alone.