IN THE SUPREME COURT OF FLORIDA

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1 IN THE SUPREME COURT OF FLORIDA IN RE: FINAL REPORT OF THE JURY INNOVATIONS COMMITTEE RESPONSE BY THE SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS IN CIVIL CASES APPENDICES B and C

2 This document contains Appendix B and C to the Response by the Supreme Court Committee on Standard Jury Instructions in Civil Cases. Respectfully submitted, Chris W. Altenbernd Chair, SJI-Civil Second District Court of Appeal 1700 North Tampa Street, Suite 300 Tampa, Florida

3 Appendix B: Relevant Minutes from the Meetings SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL) The Biltmore Hotel 1200 Anastasia Avenue Coral Gables, Florida November 13-14, :00 p.m. to 5:00 p.m. (Thursday Full committee meeting) 8:30 a.m. to noon (Friday Full committee meeting)... (C) Appointments To Subcommittees. Altenbernd reported on subcommittees (see page 1(B)-12 in the materials). Cacciatore and Mitchell were added to the newly-renamed negligence subcommittee. Stewart was added to the county court instructions subcommittee. Brown resigned from the preliminary instruction subcommittee. Altenbernd then turned the committee s attention to the assignments that have arisen from the final Jury Innovations Report Administrative Order from the Florida Supreme Court. Altenbernd suggested dividing the assigned tasks into four working groups (Groups A, B, C, and D). In addressing the tasks assigned to the committee for review, the committee will coordinate with the criminal standard instructions committee, as 8 of 10 assignments have been referred to both committees (see pages 1(C)-1 through 1(C)-18 of the materials). The Florida Supreme Court asked for feedback by May 1, 2004 (see page 1(C)-4 of the materials), but the committee agreed that it should follow the course set by the criminal standard instructions committee and ask the Florida Supreme Court for leave to give feedback in early August of Appendix B, page 1

4 Altenbernd will write to the Florida Supreme Court informing it of the committee s view that it will better be able to provide feedback on the assigned tasks if given until early August 2004 to do so. Altenbernd turned the committee s attention to page 1(C)-2 of the materials, where he included recommendations as to how the assigned tasks should be divided. He suggested that Group A work on recommendations 16, 18, and 27. He suggested that Group B work on recommendations 31 and 41. He suggested that Group C work on recommendations 32, 33, and 34. He suggested that Group D work on recommendation 17. Finally, he suggested the existing subcommittee structure be maintained to address recommendation 25 (Simple and Clear Instructions). The Group A subcommittee will be comprised of Lewis, Brown, Gerald, Graham, and Pillans. Lewis will chair this subcommittee. Berman commented that his plain language subcommittee is currently focusing on preliminary instructions. Lewis and Berman will coordinate to avoid duplication of efforts. The Group B subcommittee will be comprised of Brown, Graham, Makar, and Cacciatore. Brown will chair this subcommittee. The Group C subcommittee will be comprised of Barton, Artigliere, Brown, Caldwell, and Stewart. Barton will chair this subcommittee. The Group D subcommittee will be comprised of Cacciatore, Gunn, Mitchell, and Gerald. Cacciatore will chair this subcommittee. Stewart suggested that, before the Group D subcommittee starts to draft an instruction on preliminary discussion of evidence prior to deliberations, the committee as a whole should discuss whether this is a good idea worth pursuing. Cacciatore observed that such an instruction could lead to a practical mess. Lewis commented that the Group D subcommittee should at least study the topic. In the end, it was agreed that the Group D subcommittee will work on this issue, even if it ultimately concludes that such an idea is unwise. Appendix B, page 2

5 Altenbernd agreed to send the Jury Innovation Committee s Final Report and this committee s Response to all committee members electronically.... SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL) Stetson Law Center 1700 N. Tampa St. Tampa, Florida February 19-20, :15 p.m. to 5:00 p.m. (Thursday -- Full committee meeting) 8:30 a.m. to noon (Friday -- Full committee meeting) 4. JURY INNOVATIONS (Tab 10). Altenbernd reported that the Supreme Court granted the committee s request to extend the deadline for filing the report in response to the Jury Innovations Committee s recommendations until August 6, Altenbernd would like the report to include the committee s position on each recommendation and an appendix with draft amendments for all instructions requiring revisions. Altenbernd encouraged all subcommittees to submit any materials regarding the report by early May. This will allow the materials to be circulated to the Civil Rules and Criminal Jury Instructions Committees before their June 2004 meetings. The committee discussed its responses to the following the recommendations of the Jury Innovations Committee: (A) Recommendation 16: Questions by Jurors (Tab 15) Lewis led the discussion and directed the committee s attention to the Appendix B, page 3

6 proposals on pages and The report to the Supreme Court will advise that the committee recommends that jurors should be allowed to submit written questions. The committee then discussed the proposed amendments drafted on pages and Artigliere questioned whether the instruction should advise jurors that they can ask a follow-up question. Stewart agreed that it is not necessary for the instructions to suggest that the jurors ask follow-up questions because the procedure the instruction sets forth can already be used by jurors to ask a follow-up question. Lewis feels that the ability to ask a follow-up question is important. Artigliere suggested that the instruction warn jurors not to show other jurors the written question. Cobb believes that the instruction should tell jurors the reason they should refrain from discussing the question or showing it to other jurors is that the question may be improper. Cacciatore suggested explaining that the importance of the written question is to avoid a mistrial. Cacciatore and Lewis stated that it is important to inform jurors that it will not usually be necessary to ask questions because the lawyers typically ask witnesses the important questions. In contrast, Lumish and Brown questioned the necessity of the third paragraph. The committee then discussed where to place the proposed instructions. Campo remarked that if the instruction is added to 1.1, it will be the longest part of the instruction and suggest that the juror s main role is to ask questions. Altenbernd questioned whether the current Note on Use to instruction 1.1, which encourages judges to vary the standard instructions, should be revised to clarify that judges must comply with Rule of Civil Procedure when deviating from the standard instructions. The committee will consider the proposed amendment on juror questions to be instruction 1.9. The subcommittee will revise the proposed amendment and circulate it to the committee within the next month. Underwood and Campo will join the subcommittee. (B) Recommendation 17: Discussion of Evidence by Jury Prior to Appendix B, page 4

7 Deliberation (Tab 10). Cacciatore led the discussion. The subcommittee has several substantive concerns regarding the wisdom of this recommendation. These concerns include the location where the jury s preliminary discussions will occur and whether all jurors will participate. In addition, alternates may participate in the preliminary discussions, even though they do not ultimately deliberate over the case. The subcommittee also felt that the deliberative process would be harmed by jurors becoming wedded to a position early in the case before hearing all the evidence. Brown and Artigliere added that the recommendation is unfair to the defense because jurors can only discuss the plaintiff s evidence in the beginning of the case. The subcommittee found it very difficult to draft an instruction encompassing all of these concerns and feels the proposal is not workable. Barton pointed out that the Supreme Court has already stated it does not favor this proposal. The committee unanimously approved Lewis s motion to report to the Supreme Court that the committee recommends that the instruction should not be amended to allow jurors to discuss the evidence before the end of the case. The report will explain the substantive concerns given by the subcommittee and expressed at the meeting. (C) Recommendation 18: Note-taking by Jurors. Lewis led the discussion. Existing instruction 1.8 gives judges the discretion whether to allow note-taking by jurors. The Jury Innovations Committee recommends that the jury be instructed in all cases that it can take notes. Lewis recommends revising instruction 1.8. Several judges shared their observations of note-taking. Graham explained that he gives the instruction only when requested. He finds that jurors often ask to take notes in cases involving numbers, even during short trials. When jurors request that they be allowed to take notes, they take notes judiciously and seem to feel more comfortable. However, when counsel requests the note-taking instruction, the jurors seem to take copious notes only in the beginning of trial. Appendix B, page 5

8 Brown feels that jurors have the right to take notes, as long as they listen to the cautions given in the instruction. Lewis routinely gives an instruction on note-taking. This allows the individual juror to decide whether to take notes. However, he feels that the decision whether to give the instruction should be discretionary with the judge. Artigliere gives an instruction on note-taking when requested by counsel. He feels that whether to give the instruction should remain discretionary with the judge. Artigliere observed that jurors often take notes at inappropriate times, fail to take notes at the most important times, or take notes only in the beginning of the trial. Stewart and Griffin agreed that whether to allow note-taking should remain discretionary with the judge. Stewart believes that notes are not necessary for short trials. Griffin favors instructing jurors on how to do their jobs, rather than vesting them with rights. It is unclear how a juror s rights should be weighed in comparison to the rights of the parties. Cobb expressed the concern that note-taking will interfere with the ability of jurors to pay attention to the trial. Stewart and Austin disagreed and have never felt that a juror s note-taking interfered with his or her ability to pay attention. Several members spoke in favor of requiring an instruction allowing notetaking in all cases. Campo feels that note-taking should be allowed in all cases because people have different ways of processing information. It is far more democratic to allow jurors to store information in the way that works best for each individual juror. In addition, he feels that lawyers are more organized in eliciting information from witnesses when jurors are taking notes. Pillans observed that he concentrates better when allowed to take notes. Austin, Berman, Eaton, Lumish and Stewart all agreed that jurors should always be allowed to take notes. Caldwell questioned whether eliminating instruction 1.8b would constitute a substantive change in the law, because the notes on use cite Kelley v. State, 486 Appendix B, page 6

9 So. 2d 578 (Fla. 1986). Altenbernd stated that Kelley makes note-taking discretionary, but a statute currently mandates note-taking in trials longer than 5 days. No published cases have addressed the constitutionality of the statute. Altenbernd suggested that the note on use should reference the statute. Griffin disagreed that it is necessary to reference the statute because the Supreme Court has the power to adopt the instruction without citing additional legal authority. Brown observed that instruction 1.8 provides that notes will be destroyed, but does not specify when. Perhaps it should be amended to provide that notes will be destroyed immediately after the trial. Altenbernd will draft the committee s report recommending that the Supreme Court require an instruction allowing note-taking in all cases. Lewis will draft the amendment to instruction 1.8 and a note on use. (D) Recommendation 25: Simple and Clear Instructions (Tab 3). Berman led the discussion and directed the committee s attention to pages 3-93 to The subcommittee is in the process of revising preliminary instruction 1.1 to address plain English concerns. In addition, the revision attempts to answer common questions from jurors and to enhance juror performance by making them more comfortable with the procedure. Stewart expressed concern that the proposed note on use allows judges to alter the language of the standard instruction. If given incorrectly, preliminary instructions can create reversible error. Encouraging deviations from the standard instructions is contrary to their purpose, which is to attempt to eliminate foreseeable errors in instructions. Altenbernd agreed that the note should not encourage modifications to the standard instructions contrary to Rule of Civil Procedure Caldwell pointed out that the current note on use has similar language that allows modifications to rule 1.1. Artigliere believes that some flexibility in the standard instruction is needed to tailor the instruction to the individual case. Artigliere suggested incorporating some of the proposed revisions in Appendix B, page 7

10 instruction 1.0 (voir dire) rather than 1.1 if the jurors will need the information earlier in the proceedings, for example, information on breaks, civil versus criminal cases, and the type of dispute involved. Lumish added that the instruction advising jurors that attorneys cannot talk to them should be moved to 1.0. The subcommittee will reconsider both 1.0 and 1.1 and circulate the revised proposal with line numbers to the full committee by . All members will the subcommittee any comments, which will be incorporated into the proposal submitted at the July 2004 meeting. (E) Recommendation 27: Preliminary Jury Instructions (Tab 3). Lewis led the discussion. Altenbernd explained that the end of existing instruction 1.1 gives judges the discretion to give the jurors case-specific instructions. The issue posed by the Jury Innovations Committee is whether the judge should be required to give case-specific instructions if requested to do so by the attorneys. Brown stated that she does not favor giving detailed instructions in the beginning of the case because the issues often change during trial. When the parties agree, she gives preliminary general instructions on negligence, expert witnesses, and causation. Brown further suggested that any case-specific instructions be given after opening statements and before the presentation of evidence. Artigliere stated that when the parties agree, he gives case-specific instructions before the presentation of evidence. Cacciatore, Cobb and Altenbernd all expressed the concern that if preliminary instructions are too case-specific, there is a risk that the preliminary instruction will inject an issue or affirmative defense that is not ultimately supported by the evidence. As a result, the court will have to try to reverse the harm caused by the unfounded preliminary instruction, possibly resulting in an increased number of mistrials. Lumish feels that whether to give a substantive preliminary instruction should remain discretionary with the judge. Some substantive instructions, such as Appendix B, page 8

11 in products liability cases, are very difficult to formulate before hearing the evidence. The report to the Supreme Court will state that the committee endorses the concept of giving substantive preliminary instructions but that whether to give substantive preliminary instructions remain discretionary with the trial court. 7. JURY INNOVATIONS (Tab 10) (continued). (A) Recommendation 31: Final Instruction Before Closing Argument (Tab 10). Brown led the discussion. The subcommittee feels that it should remain discretionary with the judge whether to give jury instructions before or after closing arguments. However, the subcommittee believes that the Supreme Court prefers to require instructions before closing argument and proposed an amendment to preliminary instruction 1.1 on page 10(B)-1. Altenbernd pointed out that the amendment to rule 1.1 will be simpler if the committee recommends mandating the instructions be given before closing arguments. If the decision remains discretionary, bracketed language and a note on use will be required. Several members, including Mitchell, Cacciatore, Berman, Austin and Artigliere, felt that giving instructions before closing arguments will always benefit the parties and jury, as long as the procedural instructions regarding how the jurors will deliberate are given after closing arguments. Artigliere pointed out that the rules already require finalizing instructions before closing arguments and suggested that the subcommittee review the criminal instruction. Giving the instructions first will avoid the repetition resulting when both parties attorneys and the judge go over the instructions with the jury. Mitchell related that mandating jury instructions before closing argument would prevent the problem arising when some judges do prevent attorneys from summarizing the instructions during closing arguments. Appendix B, page 9

12 Other members advocated leaving the timing of the instructions to the court s discretion, as long as the parties know before the trial when the instructions will be given. Barton polled the 11 civil judges in his circuit on this issue. The majority favored giving the instructions before closing argument. Those opposed worried that jurors would give more attention to the last thing that they heard (the closing arguments) rather than the jury instructions. Eaton suggested that the historic reason for giving jury instructions after closing argument is that jurors were not given a written copy of instructions. If the substantive instructions are given before closing argument, jurors should be given a clean copy of the written instructions. Lewis, Artigliere, Kahn and Cacciatore all felt that technology now gives judges in the most remote courthouses the capacity to give the jury a clean written copy of the instructions. Cacciatore, Cobb and Altenbernd expressed the concern that if the rule is discretionary, the revision may not have the intended result of increasing the number of cases where the jury is instructed before closing arguments. This is because both judges and attorneys are often resistant to change. Altenbernd polled the committee and determined that: 12 committee members favored giving substantive jury instructions before closing argument and procedural instructions on how to deliberate after closing arguments; 3 of these members would not allow substantive instructions before closing argument unless the jury is also given written instructions; and 8 members favor giving the trial court the discretion to determine before trial when the instructions will be given. The report will reflect the committee s recommendation that, at a minimum, the trial court be strongly encouraged to give substantive instructions before closing argument with procedural instructions on how to deliberate following closing argument. However, the committee is divided as to whether judges should be required to give substantive instructions before closing arguments. In all cases, the jury should be given a written copy of the final instructions. The subcommittee will consider what other modifications will be needed to accommodate this change so that draft amendments can be Appendix B, page 10

13 included in the appendix to the report. Specifically, the subcommittee will examine instructions 7.1 and 7.2. The subcommittee will also consider the criminal jury instructions. (B) Recommendation 32: Judicial Answers to Deliberating Jurors (Tab 10) Barton led the discussion. Both the Supreme Court and the subcommittee accepted the recommendation to respond to jurors questions with as much explanation as possible. On page 10(C)1, the subcommittee proposed revisions to instructions 2.1 and 7.2 to tell the jurors how the process of asking questions works. The proposed amendment to instruction 7.3 on pages 10(C)1-3 provides the judge with stock responses to typical juror questions. Discussion of 7.3(a): Altenbernd asked whether the question, Is that your [question] [request]? should be directed to the foreperson, rather than the jury as a whole. Barton responded that every juror has a right to ask questions. Brown agreed that the question should be directed to the entire jury to prevent an overzealous foreperson from squelching or editing the other jurors questions. Graham suggested providing a procedure in the event a juror responds that the question read back by the judge is not actually his or her question. The jury should be told to go back to the jury room to revise the question. Otherwise, there is a risk of a jury discussion in open court regarding the intended question. This could be addressed by a note on use. Discussion of 7.2: In light of Brown s concern that all jurors be allowed to ask questions, Altenbernd suggested modifying the amendment to provide that if any of you have a need to communicate me.... Lewis suggested directing the jurors to give the note to the bailiff. Artigliere questioned whether the instruction should state that the judge may respond to the question in writing. The judge is required to bring the jury into the courtroom unless waived by the parties. Gunn suggested eliminating the sentence Appendix B, page 11

14 telling the jury how their question will be answered. Altenbernd recommended adding a note on use advising judges to make sure the parties are in the courtroom when the question is answered (unless waived by the parties). The committee then discussed whether instruction 7.2 should tell the jury in all cases that they can request a read-back of testimony, or whether this type of instruction should only be given in response to a question or with an Allen charge. Gunn and Cobb pointed out that it is unnecessary to suggest a read-back because the proposed amendment already advises jurors on the procedure if they need to communicate with the judge for any reason. Some of the judges present had varying views of the frequency of requests for read-backs: Lewis stated that jurors often ask for a read-back regarding a factspecific piece of testimony; Barton stated that few jurors request a read-back of testimony; and Artigliere stated that read-back requests occur relatively frequently. Many members felt that requesting a read-back causes problems and jurors should not be encouraged to do so. Brown and Lewis explained that one of the biggest problems is that when a juror requests a read-back of testimony favorable to one party, the other party typically requests to read additional, lengthy portions of the transcript. Lewis does, however, feel that limited read-backs serve a valuable purpose. Kahn questioned whether a read-back should ever be given to the jury. In his opinion, a read-back is only one step removed from jurors asking to watch a video or digital record of the entire trial. Altenbernd responded that a read-back of a discrete portion of the record often seems to prevent mistrials when one juror has a differing recollection of the testimony than the rest of the jurors. One solution could be to give the judge a list of factors to limit the read-back to discrete fact issues. Altenbernd stated that the consensus of the committee is that the subcommittee should revise the amendments so that a read-back of testimony is not suggested in instruction 7.2. The subcommittee should consider adding this concept to instruction 7.3(b)(1). Discussion of 7.3(b)(1)-(3): Barton explained that the subcommittee drafted Appendix B, page 12

15 three alternative instructions, depending on whether a read-back of testimony is feasible. The subcommittee determined that a read-back should be given to the jury if possible, and, if not possible, the court should explain the reason. The federal pattern instruction simply tells the jury that a read-back will not be given because it is difficult for the court reporter. Pillans suggested revising 7.3(b)(3) to make clear that the read-back is being denied because the jury s request is too vague, not because the testimony was too vague. Austin suggested adding language to 7.3(b) if a real-time transcript and power point presentation make it unnecessary for the court reporter to actually read testimony. Artigliere responded that even real-time transcripts must be edited by the court reporter before they can be viewed by the jury. Cacciatore suggested deleting the response in 7.3(b)(3) that the request is being denied because the testimony would be too lengthy. This may offend jurors, who have devoted several days or weeks to serving on the jury. Artigliere suggested adding a note on use allowing video depositions to be replayed for the jury, rather than reading the transcript. Graham proposed adding a response that the request is being denied because the court reporter is not available. Often different court reporters attend different days during the trial. Griffin questioned whether, if all jurors have a right to ask a question, the response should reflect that it is the jury s question or the juror s question. The subcommittee will consider the committee s comments and revise the proposed amendments to 7.3(b) for the July 2004 meeting. (C) Recommendation 34: Jury Impasse (Tab 10) Barton led the discussion. The subcommittee drafted a supplemental Allen Appendix B, page 13

16 charge to be read when the jury remains deadlocked. However, the subcommittee questions whether a supplemental instruction is wise. Altenbernd felt strongly that a supplemental Allen charge should not be given because it will result in the trial judge becoming the seventh juror and cause reversible error. The committee will report that it recommends that the Supreme Court decline to adopt a supplemental Allen charge. (D) Recommendation 41: Post-verdict Discussions (Tab 10) Brown led the discussion. The Florida Supreme Court made a strong recommendation to advise jurors of their right not to be harassed after the verdict. While the committee was not strongly in favor of this proposal, it drafted an amendment to instruction 7.4, which is on pages 10(B)1-3 of the agenda materials. The amendment also addresses plain English issues. Jurors are informed that while they can talk about their verdict, they should not reveal another juror s opinions. Brown and Altenbernd questioned whether the proposal creates First Amendment problems. Altenbernd and Kahn believe that the current language in instruction 7.4 adequately advises jurors of their unique privilege not to disclose their work without creating First Amendment problems. Artigliere also questioned whether the judge will have continuing jurisdiction to resolve complaints by jurors after the trial. Cacciatore suggested that the judge may have continuing jurisdiction to protect jurors and that an attorney ad litem could be appointed to represent the juror. Caldwell added that, at a minimum, a procedure should be implemented requiring the judge to advise both parties of the juror problem. Kahn prefers the current instruction, which does not create a substantive right of jurors to be free from harassment. No members preferred the proposed amendment to the current instruction 7.4. However, Kahn suggested giving jurors a written copy of the current instruction 7.4 to refer to after the trial. Altenbernd agreed that this recommendation could easily be added to a note on use. Appendix B, page 14

17 The committee will advise the Supreme Court that the current instruction 7.4 already meets the Jury Innovations Committee s concern. The committee will also recommend that jurors be given a written copy of instruction 7.4 to refer to after the trial. Appendix B, page 15

18 [The following are draft minutes that have not yet been approved by the SJI-Civil] SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL) [DRAFT 7/26/04] MINUTES The Breakers Palm Beach July 8-9, 2004 Thursday, July 8, 2004 (Full Committee Meeting, 1:10 p.m. to 5:15 p.m.) Friday, July 9, 2004 (Joint Committee Meeting with Criminal Instructions Committee, 8:30 a.m. to 11:25 a.m.) JURY INNOVATIONS (Tab 10): Altenbernd directed the committee s attention to pages to 10-52, the draft report to the Supreme Court in response to the Final Report of the Jury Innovations Committee. The draft report will contain an appendix with proposed amendments to the standard instructions. The draft report explains that none of the proposed instructions have been published for comment. It suggests that before adopting any of the proposed amendments they be published on an expedited basis. The committee discussed publishing the proposed amendments at this time instead. However, the committee determined that publication is premature because the Supreme Court may reject the proposals. Stewart suggested revising page 10-36, to state that where the committee recommends a revision, it is attached in an appendix and the committee will publish those revisions accepted by the court in accord with the normal process. Altenbernd will work on finalizing the report with Appendix B, page 16

19 Makar and Gunn. Altenbernd will the revised draft report to the committee for detailed editing. (A) (B) Recommendation 16--Questions by Jurors: Altenbernd directed the committee s attention to draft instruction 1.9 on pages to No members voiced any concerns regarding the draft instruction. The consensus of the committee is that the instruction will be given immediately after opening statements and before beginning testimony. Recommendation 18--Note-taking by jurors (tab 15): Altenbernd directed the committee to the draft amendment to instruction 1.8 on pages to Lewis read the committee the instruction that he typically uses in his courtroom. (C) Recommendation 25--Simple and Clear Instructions (tab 3): Altenbernd recommended including the proposed amendments to instructions 1.0 and 1.1 drafted by the Plain English subcommittee and noting in the report that the proposal is still in draft form. (D) Recommendation 27--Preliminary Jury Instructions: Altenbernd explained that the current preliminary instruction 1.1 already gives trial judges the discretion to give substantive instructions in the beginning of the trial. The draft report points out an inconsistency between rule 1.1, which gives trial judges discretion to vary the preliminary instruction, and Florida Rule of Civil Procedure Form 1.985, which only allows deviations from the standard instructions upon a finding that they are erroneous or inadequate. Several members voiced concern with the breath of the draft report. Stewart felt that the draft language was overbroad and would encourage judges to change substantive instructions. Berman agreed and proposed amending rule so that it defers to the notes on use in each instruction regarding whether deviations are permissible. Lumish and Lewis both felt that while there is no problem when a judge modifies a preliminary instruction, some substantive instructions should not be varied absent a finding that they are erroneous. Altenbernd suggested revising the report to advise the Supreme Appendix B, page 17

20 Court of the discrepancy and state that there is considerable debate regarding whether an amendment is needed, and if so, the substance of the amendment. The report will ask the Supreme Court to direct both this committee and the Rules of Civil Procedure Committee to consider the question. (E) Recommendation 31--Final Instruction Before Closing Argument: Brown directed the committee s attention to the proposed amendments to instruction 1.1 on pages 10(B)-5 to 7. Brown stated that at the last meeting, the committee was divided regarding whether judges should give final instructions before closing arguments. Many members at the last meeting felt that the instructions will be simpler if trial judges are required to give instructions before closing arguments. Also, at the last meeting, many members expressed concern that if it is discretionary to give instructions before closing arguments, many judges will not. The draft instruction 1.1 mandates that instructions be given before closing arguments. The committee remained evenly split (10 to 10) regarding whether it should be discretionary or mandatory to give instructions before closing argument. All of the trial judges in attendance except one felt that judges should have the discretion to determine when to give instructions. Altenbernd determined that the consensus of the committee regarding the discretion of the judge remains as stated in the draft report. The draft note on use 5 to instruction 1.1 states that judges are strongly encouraged to give jurors written instructions. Currently, Florida Rule of Civil Procedure states that written instructions should be given to the jury when practicable. Cacciatore and Lumish suggested making the language in note on use 5 stronger than strongly encourage. The committee also discussed when the written instructions should be given to the jurors if the oral instructions precede closing arguments. Brown suggested giving the jurors instructions when they are read, collecting the instructions before closing arguments, and redistributing them before deliberations begin. Austin agreed that the jury may be Appendix B, page 18

21 distracted during closing arguments if they have a copy of written instructions. Berman and Lewis disagreed that it is necessary to retrieve the instructions before closing arguments because the written instructions will be helpful to the jury and counsel during closing arguments. Altenbernd and Stewart both remarked that written instructions will assist jurors because a significant number of people comprehend better when they are able to read as well as listen. Campo explained that all the research to date supports the proposition that providing written material improves juror comprehension. No research supports the position that written instructions are distracting to jurors. Campo does not know of any research on whether having the written instructions during closing arguments assists jurors. Campo has seen jurors circle relevant parts of the written instructions during closing arguments, but has not seen jurors get distracted by the written instructions. The subcommittee also proposed a new instruction 7.0 on closing arguments, which incorporates standard criminal instruction 2.7. Altenbernd pointed out that this is really a new instruction, unrelated to the Jury Innovations report. Altenbernd will format proposed rule 7.0 for publication, circulate it by and publish it for comment. (F) Recommendation 32--Judicial Answers to Deliberating Jurors: Barton explained that the draft amendment to instruction 7.2 is on page 10(C)-9. Altenbernd suggested deleting the reason for the communication from the second sentence. Barton explained that the draft amendment to instruction 7.3(a) (Answers to Juror Inquiries) on pages 10(C)-9 to 10 asks the juror to confirm that the question was read correctly because judges often have difficulty reading a juror s handwriting. If the answer is no, the juror should be instructed to rewrite the question. Cacciatore suggested revising the question to state, If I have not read your question correctly, please raise your hand. Stewart suggested deleting from the response that the judge is unable to answer the question as it is phrased. Berman suggested that the proposed responses should not criticize the Appendix B, page 19

22 jury and the response should be revised to we cannot answer your question because [state reason]. Mitchell agreed that judges do not have difficulty explaining why the jurors question cannot be answered. By setting forth a few reasons, the draft may inadvertently limit judge s responses to jurors questions. Barton responded that the Juror Innovations Committee advocated explaining to the jurors why their questions could not be answered. Campo suggested giving jurors a preliminary instruction on how to ask questions. Altenbernd asked the subcommittee to consider this further. Barton explained that draft instruction 7.3(b) (Read Back of Testimony) is on page 10(C)-10. The subcommittee decided against informing the jurors up front that they can always request a read-back of testimony. They also suggested amending the Allen charge in instruction 7.3(c) to inform jurors that it is possible to request a readback of testimony. Caldwell suggested revising the draft report to state that the committee is concerned with the Jury Innovations Committee s recommendation that judges cannot deny a request for a read-back of testimony. Brown agreed that judges need the discretion to deny a readback, especially where the jurors ask to hear a week s worth of testimony. While Lewis feels that read-backs should be given when possible, he feels that a mandatory rule will create appellate issues regarding the feasibility of the read-back. Stewart disagreed and feels that the jurors who ask to hear testimony again should be given this assistance. Altenbernd will revise the draft report to note the debate within the committee on this issue. Friday, July 9, Joint Meeting with Criminal Jury Instructions Committee 1. JURY INNOVATIONS (Tab 10). At the joint meeting of the Civil and Criminal Standard Jury Instruction Committees, both committees discussed the differences in their proposed recommendations to the Florida Supreme Court: (A) Recommendation 16--Questions by Jurors: Altenbernd explained that Appendix B, page 20

23 the civil committee agreed with the recommendation to allow jurors to submit written questions. The committee has drafted instruction 1.9, on page Costello stated that the criminal committee is not recommending an instruction. In the event the Supreme Court decides to adopt an instruction, the criminal committee has proposed a draft instruction on hand-out pages 3-21 to Hess explained that the criminal committee s decision not to recommend an instruction was influenced by an article reporting the risk that jurors allowed to ask questions may become interrogators rather than impartial observers. Cervone added that in criminal trials, a juror s question may inappropriately inform the State of a failure in its burden of proof before the conclusion of the evidence. Altenbernd observed that there are substantial differences between civil and criminal trials regarding the effect of a juror question and whether it will result in a mistrial. Snurkowski stated that the third paragraph of the criminal instruction contains an important caveat that informs jurors not to draw any adverse inferences when a question is not answered. Weatherby stated that if the civil committee s proposal included this caveat, he would also be comfortable with the civil committee s proposal. Altenbernd stated he liked the criminal committee s instruction that jurors should fold their question. Cobb remarked that he likes the language in the criminal proposal telling jurors that everyone in the trial is bound by the rules of evidence. Brown disagreed with this language because it may intimidate jurors into only giving questions they think will be allowed by rules of evidence. (B) Recommendation 18--Note-taking by Jurors: Altenbernd explained that the civil committee is recommending a mandatory instruction allowing note-taking, found on page [NOTE: confirm, is this right page?]. All members of the civil committee felt that if they were serving as jurors, note-taking would assist them in processing the information presented. Costello countered that the criminal committee is recommending that the judge retain the discretion to determine whether Appendix B, page 21

24 to allow note-taking. Many criminal trials are very short, making notetaking unnecessary. In addition, the criminal committee is concerned with allocating the cost for providing paper and pencils to the jury in all trials. Stewart and Graham both observed that even though the judge and attorneys may feel that a case is simple, the trial is often the juror s first exposure to the court system. Jurors may think the case is complicated and note-taking will improve their ability to comprehend. Campo also advocated a mandatory instruction because depriving jurors of this method of organizing their thoughts about the case is results in a substandard trial for the litigants. Graham added that the cost of notetaking is minimal--approximately 6 pads and pens, which will be reused for many trials. Caldwell voiced the concern that if note-taking remains discretionary, judges may not give the instruction. Mitchell pointed out that if the rule is mandatory, parties can always agree to dispense with note-taking. While Lewis feels that note-taking helps jurors, he believes that it should remain discretionary with the judge. Judicial education on the importance of allowing note-taking will result in few judges denying requests to allow the jurors to take notes. The committees also discussed when the note pads should be given to the jury. Snurkowski feels that judges should have discretion over when to distribute the pads. For example, the judge should have the discretion not to give the jury pads during attorneys arguments due to the risk that the jury will decide the case based on arguments. Two judges, Weatherby and Brown, stated that they routinely give jurors note pads before opening arguments. Brown stated that note pads are helpful during opening because it is the first time complex medical terms may be explained. Austin added that in eminent domain cases, note pads have been given to the jury at the very beginning of trial so that the jurors can Appendix B, page 22

25 take meaningful notes. (C) Recommendation 25--Simple and Clear Instructions: Both committees agree with this recommendation. (D) (E) Recommendation 27--Preliminary instructions: Costello reported that the criminal committee has recommended that the trial court be given the discretion whether to give substantive preliminary instructions. The criminal committee rejected mandatory substantive instructions because often the issues change as the trial progresses. For example, it is not always clear at the beginning of the trial which lesser included offenses will be requested by the defendant or proved by the State. In addition, the State should be required to prove its case before the jury is instructed on the elements. Lewis countered that the jury is already told the charges at the beginning of the trial and it should not cause problems to also tell them the elements of the crime. Altenbernd reported that the civil committee recommended that the court retain the discretion to give instructions on general, legal concepts. However, the civil committee discourages the use of non-standard, case-specific instructions, which may lead to error. Recommendation 31--Final Instruction Before Closing Arguments: The criminal committee is opposed to giving final instructions before closing arguments. Altenbernd explained that the civil committee is evenly split regarding whether giving final instructions before closing arguments should be mandatory or permissive. Caldwell relayed that his colleagues in other states report that giving final instructions before closing argument is very helpful to the attorneys during the argument. Berman agreed that giving the instructions first avoids the confusion that results when attorneys use the arguments to tell jurors what the instructions will say. Weatherby countered that he begins trials by educating jurors and prefers to end the trial with the instruction on the law rather than Appendix B, page 23

26 impassioned closing arguments. Altenbernd suggested that this concern could be met if after closing arguments, the trial judge instructs the jury on how to deliberate or gives the jury a short recess. Brown reported that she has given final instructions before closing arguments in approximately 15 criminal and civil cases. She found the civil attorneys unanimously preferred giving the instructions before closing arguments. Brown feels that the criminal instructions should, at a minimum, give the trial judge the discretion to instruct the jury before closing arguments. Graham stated he routinely gives substantive instructions before closing argument. In criminal cases, Graham repeats the substantive charges after closing argument. Skye agreed that this approach of reading the elements before and after closing arguments might meet the criminal committee s concerns. (F) Recommendation 32--Judicial Answers to Deliberating Juror Questions: Costello reported that the criminal committee agrees that trial judges should try to respond to juror requests. However, the criminal committee decided that sometimes the best response may be for the jurors to rely on their collective memories. Barton explained that the civil committee is considering a proposal to advise the jurors at the beginning of the trial of the procedure for asking questions. Altenbernd added that the jurors would be told that questions are not encouraged, but given a procedure for asking questions when necessary. (G) Recommendation 33--Read-Back of Testimony: Altenbernd explained that the civil committee decided that they could not formulate criteria for determining when a read-back should be given. Instead, the question should be considered by the civil rules committee. Costello reported that the criminal committee also concluded that it could not define when a read-back should be given. Altenbernd asked the members of the criminal committee how read-backs are given in criminal trials when a digital recorder is used rather than a court reporter. Hess explained that the read-back is similar to playing a tape. However, recording problems often result in difficulties hearing the attorneys Appendix B, page 24

27 questions to witnesses. (H) (I) Recommendation 34--Juror Impasse: Altenbernd stated the civil committee has decided that judges should be able to tell jurors at the end of the Allen charge that they can request a read-back of testimony. Costello explained that the criminal committee is not in favor of giving a second Allen charge, which results in reversible error in criminal cases. Recommendation 41--Post-Verdict Discussions: Costello stated that the criminal committee recommends mild modifications to the current instructions to better inform jurors that people may attempt to speak to them about their jury service. Altenbernd explained that the civil committee recommends that jurors be given a written copy of the discharge instruction to refer to after the trial. Stewart expressed First Amendment concerns with prohibiting jurors from revealing other juror s statements. Weatherby stated that he always instructs jurors that they have the right to discuss, or refuse to discuss, their jury service. He does not advise jurors that lawyers cannot talk to them, which is a matter of attorney discipline rather than jury instructions. 2. Translators (Tab ) [NOTE check tab no]: Altenbernd stated that the civil committee considered proposing a standard instruction on translators, but did not come to a resolution. A problem arises when part of the jury is relying on the translator and another part of the jury is relying on their own understanding of the testimony. Costello stated that the criminal committee also considered an instruction on translators, but did not resolve the issue. Altenbernd brought the issue to the attention of the Rules of Judicial Administration Committee, but that committee also declined to act. He is considering writing the Chief Justice of the Florida Supreme Court because the issue may never arise in a case or controversy. Several members shared their recent experiences with translators. Zayas stated she recently had a case where a mistrial resulted when the translator, an attorney, a juror and the judge all had differing interpretations of the Spanish testimony. Cacciatore also has been Appendix B, page 25

28 involved in a case where certified translators disagreed on the correct translation. Stewart stated that he was involved in a trial where the translators disputed the meaning of Japanese documents and testimony. The trial judge instructed the jury to determine the correct meaning. Berman observed that this issue needs to be resolved by substantive law because a similar problem arises whenever a juror has an area of special knowledge or expertise, for example, a juror that is a lawyer. Altenbernd suggested that the problem can be solved in the evidentiary rules. Costello and Altenbernd agreed that the civil and criminal committees will write a joint letter to Florida Supreme Court pointing out translator problem. Joint meeting of criminal and civil committees adjourned. 3. PLAIN ENGLISH SUBCOMMITTEE (Tab 3). Berman led the discussion and directed the committee s attention to the draft revision of instruction 1.1 that on pages to Many of the comments the subcommittee received urged simplicity and non-repetition. However, the subcommittee based the draft on research that repetition may help jurors to feel more comfortable and involved in the process. Lewis stated that he routinely gives some of the information found in the draft before beginning voir dire. Stewart suggested giving the first two pages and a brief description of the case before voir dire. Altenbernd agreed that the first part of the instruction should be given before voir dire. Strelec questioned whether line 11 strained credulity by suggesting that the judge has no opinion about the case. The committee rephrased the second sentence on line 11 to read It is my job to be neutral. Altenbernd suggested that the instruction should also define the role of the clerk of court. Appendix B, page 26