Questions du jury

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General Principles

During the deliberations of a jury, they are permitted to submit questions to the court and counsel. Jury questions indicate some of the problems the jurors are having in deliberating and seek help from the trial judge.

Procedure in Considering Questions

When a judge receives a question from the jury, they should:

1. read the communication in open court in the presence of all parties;
2. give counsel an opportunity to make submissions in open court prior to dealing with the question;
3. answer the question for the jury in open court in the presence of all parties.

Importance of Answers

Answers to questions carry "an influence far exceeding instructions given."

Unclear Question

Where a jury question is unclear, the judge should seek clarification before attempting to provide an answer.

Requirements of Answer

Jury questions must be answered "clearly, correctly and comprehensively."

A proper answer should improve the jury’s “understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case.”

However, the response should be timely as well. Delay without instructions the jury to cease deliberations where the question reflects a misunderstanding is open to risk of corrupting the verdict.

In responding to a jury question, it is often advisable that the judge invite the jury to return with further questions if the response does not assist.

Mode of Communication with Jury

A judge should not communicate with the jury by sending notes with unsolicited information without the input on counsel.

Effects of Errors

Any errors in a response to a jury cannot be remedied simply by referring back to the correctness of original charge.

Improper Answers

An answer should never discourage further questions on any subject.

Specific Problems

In answering a question regarding the standard of proof of "beyond a reasonable doubt", there is nothing per se wrong with simply reciting the standard anew.

It is an inadequate answer to respond "yes" to the jury question that I asked "do we consider all of the evidence for all charges?."

Answer Need Not Conform to Theory of Parties

A question may find it necessary to "instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence counsel." This is permissible because the jury is not bound by the opposing theories of Crown and defence. However, limitations exist on this flexibility for the purpose of preserving trial fairness.

Speed of Constructing Answers

The parties should act carefully in providing answers. The trial judge should not rush parties to get it done quickly.

Replaying Trial Recordings

Requests to Replay Testimony

Jurors may ask to have parts of the evidence played back to them for the purpose of orefreshing their memory.

All replaying of the evidence must be done on the record and in the presence of the accused.

Where there is a request to replay portions of evidence, the replay must be done on the record so that an appellate court can determine whether the portions were given proper context.

Replay Segments Only

The response to any request to replay the specific subjects of the evidence or the evidence as a whole should "include all the evidence of the witness on the subject or generally."

When specific subject matters are requested for playback, it is necessary that all segments on the subject-matter on direct, cross-examination and re-direct should be played. This should be done even if the jury just asks for the direct examination.

However, if the jury insists that they do not wish to have all the evidence on the area it may not be necessary.

It is improper for the judge to insist that the jury listen to the entirety of the witness' evidence when they only wish to hear on it.

Disclosing Transcripts

It is not inappropriate for the jury to be provided at their request with partial transcripts as they are available.

Reviewing Transcripts

It is essential that the jury be notified that of their right to have the testimony played back to them should they request a transcript but are notified that transcripts are not available.

Where the jury receives transcripts of only parts of the evidence, they may need to be reminded that they must not lose sight that they must consider all the evidence, and not just the parts transcribed.

Request for Copy of a Closing Address

The jury has a right to request the replay jury address.

Where the jury requests a copy of the Crown closing, there is no obligation to provide a copy of the Defence closing.

Failing to Answer Jury Questions

Where a jury asks a question and then withdraws before it is answered by the judge will not render the verdict invalid. The judge need not answer the question for the jury. However, should the question reveal a legal misapprehension, the judge should give a correction instruction and give an opportunity to reconsider its verdict.

A jury may withdraw a question simply by announcing it is ready to give a verdict.

It may be recommended that once the jury is ready despite not having the question answered, that the court canvas both counsel and the jury about whether the question should still be answered.