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Criteria for Expanded Jury Instruction on the Voluntariness of a Statement Explained (Criteria Not Met Here)—Trial Judge Should Not Have Participated in Readback of Testimony (Not Reversible Error Here)

The Second Department explained when an expanded jury instruction concerning the voluntariness of defendant’s statement is proper (criteria not met here), and noted that a judge should never participate in the readback of testimony (not reversible error here):

A defendant is entitled to raise the issue of voluntariness both at a suppression hearing and at trial (see CPL 710.70[3]…). At trial, however, the court is not required to instruct the jury on the issue of voluntariness unless the defendant requests the charge, and “evidence sufficient to raise a factual dispute has been adduced either by direct or cross-[*2]examination” … . Here, nothing in the evidence adduced at trial raised a factual dispute about the voluntariness of the defendant’s statement … . * * *

…[W]e again remind the trial justice that he should not participate as a reader when readbacks are requested by a jury …, and that this type of participation should not be repeated. In this regard, the court’s practice risks erroneously conveying to the jury that the court is aligned with the party or counsel whose role the court has assumed in the readback … . “[A]s a general matter, a trial judge should shun engaging in readbacks of testimony. In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors”… . People v Baranov, 2014 NY Slip Op 06596, 2nd Dept 10-1-14

 

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Trial Judge’s Participation in Readbacks Not Mode of Proceedings Error

In a full-fledged opinion by Judge Read, the Court of Appeals determined the trial judge’s participation in the readbacks of testimony requested by the jury did not amount to a mode of proceedings error.

…[T]he two jury notes — requests for readbacks of two witnesses’ testimony — were disclosed in their entirety in open court before the trial judge responded to them. And the judge explained exactly how he was going to conduct the readbacks.  If defense counsel considered the judge’s intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so… . * * *

…[W]e agree with the [2nd] Department that, as a general matter, a trial judge should shun engaging in readbacks of testimony.  In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors.

In a case where a trial judge nonetheless elects to participate in a readback (certainly, nothing in CPL 310.30 prohibits it), any error is not of the mode of proceedings variety.  “Not every procedural misstep in a criminal case is a mode of proceedings error”; rather, this narrow exception to the preservation rule is “reserved for the most fundamental flaws,” such as shifting the burden of proof from prosecution to the defense, or delegating a trial judge’s function to a law secretary… . People v Alcide, 143, CtApp 10-10-13

 

Jury Was Given Written Copies of Portions of Jury Instructions; Judge’s Responses to Subsequent Requests for Jury Instructions and Testimony Read-Back Required Reversal

The Third Department reversed defendant’s conviction on two grounds.  First, the trial judge’s response to the jury’s request for jury instructions (written copies of portions of the jury instructions had already been given to the jury) was not “meaningful” and required reversal in the absence of an objection.  And second, the read-back of testimony requested by the jury did not match the request and did not include crucial cross-examination:

As it was unclear from the jury’s note whether the jury simply was seeking the portion of the written charge previously promised by County Court or some other unidentified portion of the charge  (or even  the  charge  in its entirety), it was  incumbent upon County Court to explore this inquiry with the jury and clarify the  nature of the  jury’s request or, at the  very least, ascertain whether its response to the jury’s request was satisfactory….Although defense counsel did not object to the manner in which County Court  responded  to the  jury’s inquiry, County  Court  failed “to provide  a  meaningful response  to the  jury” and, in so  doing, failed to fulfill its “core responsibility” in this regard  ….    Accordingly, no objection was required to preserve this issue for appellate review… . * * *

Although CPL 310.30 affords a trial court a certain degree of latitude in responding to a jury request for additional information, the court’s response must be meaningful … . Additionally, “[a] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise”… .  People v Clark, 105237, 3rd Dept 7-3-13

 

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Court Participation in Testimony Read-Back Is Error

Although the Second Department concluded it was harmless error, the Court noted that the trial court erred when it participated in reading back certain trial testimony to the jury.  The Court wrote:  “We take this opportunity to emphasize that ‘[w]hen, during a read-back of testimony, a trial judge assumes the role of a witness or inquiring counsel, he or she may unwittingly and erroneously convey to [the] jury that the court is aligned with the party or counsel whose role the court has assumed in the read-back’…”.  People v Facey, 2012 NY Slip Op 01568, 2012-11829, Ind No 9839/08, 2nd Dept. 3-13-13

 

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