 Federal Judicial Center Orientation Series for District Judges Criminal Trial Procedure with the Honorable Mary Ann Trump Berry Judge Berry was appointed as the United States District Judge for the District of New Jersey in 1983 She currently serves as chair of the Judicial Conference Committee on Criminal Law Permit me to congratulate you on entering the best job in law Criminal cases, at least some of you will find as I have are the most interesting and yes the most gripping part of that job and all of you will find that when a big criminal case falls into your lap your civil docket will no longer hum like a well-oiled machine some or more than some civil trial dates will fall by the wayside My role is to speak to you about the trial of a criminal case Before I do, let me reassure those of you who have not yet had much experience with criminal trials or criminal law There is no reason to be intimidated by a criminal case or by the fact that you are unfamiliar with some or much of what I will be discussing Certainly, criminal trials are different from civil trials The atmosphere in the courtroom is different If for no other reason than that the stakes involved, particularly for the defendant, are much higher Certainly too, trying criminal cases requires more care than trying civil cases But there are many similarities between criminal and civil trials So those of you who have tried civil cases, either as lawyers or as judges will be able to make the transition into criminal fairly easily And while I will be discussing a number of issues in connection with the trial of a criminal case many of these issues will rarely surface When they do, you will usually have the opportunity and in most cases you should take the time to go to sources such as the extraordinarily helpful benchmark which will tell you what you need to know and how to do it And you will learn, I think, that criminal law is less complex, generally speaking, than civil Now before I turn to the trial itself, I'd like to spend a few moments on the art of judging a criminal trial for trying a criminal case as a judge is, or can be, an art Let me say at the outset that what I recommend for you may not be right for you Any more than what you might recommend for me may not be right for me But there are certain suggestions with which I believe no one will take issue and others which have worked so well for me that even if you're somewhat dubious might be worth a try First, you set the tone in the courtroom How you conduct yourself will largely determine how the trial will run and I do not mean merely whether you conduct yourself with decorum It is critically important in a criminal case that there is discipline By discipline I mean order and consistency I do not mean being heavy-handed or erasable You must establish at the outset what time of day you will start trial When you will take your breaks and lunch hour and when you will adjourn for the day and you must adhere to and enforce those times In other words, you will take the bench ready to roll at 9.30 if that is when you are to start You will take the bench at one o'clock after lunch If you start trial strong with everyone knowing that the jury will be in the box at 9.30 and at one there will be no stragglers, be they lawyers or jurors and the case will move expeditiously And I suggest that at the start of a trial expected to last longer than a week or two it is better to sit somewhat longer days You can always ease up as you move along and all involved will be grateful If for no other reason then long trial days in a criminal case are exhausting Long trial days also have a hidden benefit in addition to the obvious benefit of moving the trial The attorneys are working so hard at what they have to do in court that they have less time and less energy to dream up much less commit to paper some of the more extraneous applications and arguments that lawyers on both sides of the aisle are want to make Which brings me to the second suggestion for trying a criminal case closely related to the first It is critically important that you keep the case moving and that you remain in control Do not in other words let the trial get away from you To the extent it is possible to do so require the attorneys to bring to your attention matters they wish to discuss with you Outside the presence of the jury either before the trial day is scheduled to begin or at the end of the day Why? So that these discussions do not cut into the jury's time in the box Nothing a noise a jury more than being kept waiting in the jury room Particularly if it has no idea why You will at least initially hear the plaintive cry from the attorneys Judge it can't wait and perhaps that will be so You will learn if you do not already know what can and what cannot wait But what you cannot do is stop the trial every time some bit of creative nonsense is presented to you Or every time an attorney has something on his or her mind Now I do not mean to suggest that you should be precipitous I believe however that an excess of caution is often unnecessary As you come to trust your instincts and your judgment You will become more comfortable than perhaps you are now In ruling expeditiously on matters raised to you I also suggest that the good judge will not be looking over his or her shoulder at the circuit And wondering what the circuit will say when called upon to review a particular ruling Almost certainly the circuit court will not be called upon to review the vast majority of rulings you make in any given trial Your concern at the trial of a criminal case cannot be a reviewing court Your concern must be your court and doing the best job you can while moving the case as expeditiously as is warranted Now I am going to walk through a criminal trial with you Focusing on procedures to be followed and certain matters with which you may or will be called upon to deal during the trial Jury selection in a criminal case is tedious and unexciting And so there is a temptation to select a jury as quickly as possible I suggest to you however that in most criminal cases it is both appropriate and important to probe for bias and for deeply held feelings In short, the voir dire needs care Perfunctory questioning of prospective jurors is not enough Your priority after all is to assure that a fair and impartial jury is selected How you ask the question may well determine the answer How you ask the question may well make it appear as if everything is hunky dory with both the question and the prospective juror when perhaps it is not One example will suffice Ladies and gentlemen I instruct you that the testimony of a law enforcement officer is not entitled to greater weight merely because of his or her position Is there anyone who would be unable to follow that instruction? I assure you no hands will be raised But try the question this way Ladies and gentlemen do you believe that the testimony of a law enforcement officer is entitled to greater weight because of the position he or she holds? I assure you hands will go up and you can probe In a criminal case in which a number of areas should be probed a jury questionnaire may have a utility it would not have in the simple criminal case It may also be more efficient in terms of time Those questionnaires should be prepared either by you or by one or more of the attorneys prior to trial And all attorneys should sign off on the final product before it is used But whether by questionnaire or otherwise it is important in an organized crime case for example To question prospective jurors as to such things as whether they believe there is a mafia how they feel about the mafia And whether they believe that Italian Americans are more likely to commit crimes In a drug case it is important to ask whether a prospective juror could be fair and impartial given the nature of the charges It is astounding how many men and women are now saying that they are not sure they can be fair because a member of their family or a friend has been affected by drugs Once you have your jury and it is sworn it is appropriate to give the jury some brief preliminary instructions Instructions that will be particularly helpful to persons sitting as jurors for the first time These instructions can be prepared at your leisure and because they are not case specific they can be given at the outset of every trial Many judges have a set of standard instructions they use from case to case with little change Essentially I tell the jury how important it is to the administration of justice and describe the respective functions of the judge and the jury I tell the jury that a criminal case begins with a return of an indictment by a grand jury which found probable cause to believe that a crime has been committed and that the defendant committed it I also tell the jury however that what the grand jury found has no effect on its job That the defendant has entered a plea of not guilty and is presumed to be innocent And that the presumption runs in his favor and alone requires acquittal until such time if ever as the government proves his guilt beyond a reasonable doubt I then tell the jury how the trial will proceed first opening statements if the parties wish to make them and that nothing contained in these opening statements is evidence Then the government will put on its witnesses whom the defendant may cross-examine At the conclusion of the government's case in chief the defendant if he or she wishes may put on witnesses whom the government may cross-examine And the government may put on a rebuttal case Following all of the evidence the jury is told it will hear the closing arguments of counsel and will receive my instructions on the law Instructions it is applied to follow and that it will then retire to deliberate The jury is told that on occasion the lawyers will be brought to sidebar to discuss matters of procedural law What overruled and sustained mean when counsel object as is their right to certain questions What the jury should do when limiting instructions are given or testimony is stricken And I remind the jury that it has a duty to give all parties a fair trial and not to be swayed by prejudice, sympathy or anything but the evidence in the case Finally I give the jury some more informal instructions as to our timing and tell the jurors that they are not to talk to anyone including each other about the case and why I also tell them not to read or listen to anything about the case if anything were to appear in newspapers or on radio or television I remind them that at the end of each day not to discuss the case or expose themselves to anything that is written or spoken about it Many judges give the jury some preliminary instructions concerning the law of the case Briefly outlining the elements of the offense charged that the government must prove If you do so, tell the jury that these are only partial and preliminary instructions given to it for the purpose of putting what it will be hearing in terms of evidence into some context I do not usually summarize or read the indictment to the jury in the course of these preliminary instructions Because I will have done so to the panel as a whole during voir dire for the purpose of determining whether there is anything about the nature of the charges which would prevent any prospective juror from being fair and impartial You may of course choose to read or summarize the indictment at this point as well You will then move into the opening statements of counsel if counsel choose to make them as they almost certainly will Opening statements rarely pose any problem, typically the government will outline the evidence as it expects it to come in and will stay away from any gray areas such as other crimes evidence or perhaps co-conspirator statements Unless you have ruled that such evidence is admissible, the government will not be conservative in this regard out of any sense of charity toward the defendant Rather the government knows it cannot assume that you will rule in its favor and it does not want to hear from the defendant in his or her closing statement as to what the government promised and did not deliver Typically too, the defendant's opening statement will be brief and defense counsel may defer the statement until the start of the defendant's case although they rarely do Usually defense openings consist of little more than a request that the jury not make up its mind until all the evidence is in And a suggestion that when the evidence is in the engine of truth will have persuaded the jury that the government has nothing and the defendant should be found not guilty In an exercise of caution you might ask the lawyers before they begin how long they anticipate their opening statements will take The only opening as to which length might be a concern however will be the governments and if the prosecutor tells you four to five hours your honor you might well consider restricting the length of that opening Something you are well within your rights to do You will have your first real indication of how smoothly the trial will go when the first witness is called and you see how frequently or infrequently objections to questions are made Some lawyers object sparingly, others object to everything but the kitchen sink When you have a lawyer in this latter category making what can only be characterized as frivolous objections Let me give you some examples How old are you Mr. Jones? I object your honor, irrelevant, overruled Where do you live Mr. Jones? I object your honor, irrelevant, overruled Where did you go to college Mr. Jones? Objection, irrelevant and leading overruled You must nip this in the bud at sidebar I suggest you tell that lawyer that you are sensing the jury's frustration and annoyance and it will be frustrated and annoyed And if he thinks he is serving his client well with these frivolous objections he had better rethink his position You have the authority under Rule 611 of the Federal Rules of Evidence to exercise reasonable control over the direct and cross examination of witnesses You can for example prohibit repetitive cross examination and prohibit cumulative witnesses whose testimony would serve no purpose Other than to consume time needlessly Ideally this can be taken care of at pretrial But in reality those are difficult calls to make in advance of trial Also, you can protect witnesses from harassment or from undue embarrassment I would recommend that as a general matter however you not restrict cross examination or limit witnesses And that generally speaking you should let the lawyers try their case as they see fit within reason of course But to the extent that you see repetitive cross and cumulative witnesses coming along again Your views as to how the jury will view this expressed at sidebar will most likely have a salutary effect Let me talk for a moment about sidebar conferences Some lawyers rarely ask for them and when they do it is probably for good reason Other lawyers ask for them all the time and rarely for good reason As with continual frivolous objections you must nip continual requests for sidebars in the bud As a general proposition sidebars should be discouraged unless they would be helpful for your understanding Or necessary to enable you to make a ruling and then you should not hesitate to hold one Certainly sidebars should be discouraged in multiple defendant cases 10, 15, 20 counsel at sidebar is unwieldy and difficult And you should know that unless the sidebar concerns an issue of law or procedure which the vast majority of them do The defendant must be present unless he has waived his presence As a practical matter this issue rarely comes up and not just because the times when a defendant has a right to be present are few and far between Many lawyers are unaware that a defendant even has a limited right to be present at sidebar conferences And given the intensity of many sidebar conferences even those lawyers who are aware of this right do not want to be saddled at sidebar with their clients Be that as it may in an exercise of caution you could advise counsel and the defendant at the outset of trial that the defendant has this right And put the burden on counsel to bring to your attention any sidebar conference at which he or she believes the defendant should be present I doubt you will hear from counsel but if you do and if you agree that the defendant has a right to be present He shall be unless he waives his presence act somewhat ironically sidebar And be sure that all sidebar conferences just like all other proceedings during the trial both in the courtroom and in chambers are on the record In almost every long trial and in many short trials someone becomes ill How you handle that situation depends on who that someone is and where you are in the trial Let us assume first that the defendant becomes ill you want more than anything to keep the trial moving and the defendant will waive his presence Now you will be tempted to accept his waiver a defendant after all can waive almost anything and can voluntarily absent himself from the whole trial under federal rule of criminal procedure 43 But should you accept his waiver there are waivers and then there are waivers If the defendant were to say judge if you want to keep the trial moving go ahead just let me out of here I'm throwing up every five minutes I would not find that to be a voluntary and intelligent waiver and certainly a reviewing court might not find it to be one either What if the defendant fails to show up and no one knows why? In that event it is better practice to delay the trial until you find out why the defendant is absent If when you do find out you feel compelled to move the trial the jury should not be told of the reasons for the defendant's absence Instead it should be instructed not to speculate as to why the defendant is absent or consider the fact of the defendant's absence for any purpose You should know by the way that in lengthy multi-defendant trials the rules seem to be more relaxed Following a waiver in such cases you will find a defendant and perhaps his attorney absent even for days when the testimony is not touching that defendant What if the defense attorney is ill? Certainly the defendant can waive his attorney's presence and a co-defendant's attorney will usually be willing to stand in But if the testimony about to be received would affect the defendant in any important way for example the eyewitness to the bank robbery will identify the defendant as the person who shot the teller I would wait within reason for the attorney to recover If however you decide that you do not want to wait you must get the defendant's full and complete waiver on the record A juror becoming ill poses different problems. Assuming that the juror is not just sick of the trial you will have to consider various things For example how long will the juror be out? Are you at the beginning of a long trial or near the end? Are the parties taking a position as to whether the juror should be excused depending upon whether they perceive the juror to be one of theirs? How many alternates are left? There are no hard and fast rules and at bottom it is a judgment call At the beginning of a long trial you should err on the side of conserving your jurors and wait if possible for the juror to recover Near the end of a trial with alternate still in place it may be appropriate to excuse the juror and move on Now suppose that the juror becomes ill or otherwise temporarily unavailable during deliberations It is preferable for the full jury to deliberate if it can do so Under Rule 23b however the judge can excuse a juror for just cause even absent the consent of counsel and a verdict may be returned by 11 jurors The critical inquiry in this situation is the expected length of the juror's absence The longer the expected absence the more reason there is to excuse the juror particularly in a trial that has been protracted The rationale for this is sound if there is a lengthy delay the recollection of all of the jurors may dim And there is a greater possibility that they will discuss the case with outsiders Be cautious though in invoking Rule 23b and proceeding with a jury of 11 after a short trial The advisory committee had in long trial in mind when it adopted amended Rule 23b And a precipitous dismissal of a juror following a short trial could be a problem later on Another issue that arises with some frequency particularly in the high visibility cases is publicity during trial Typically the issue arises something like this One morning just before you're about to bring the jury out a defense attorney will bring to your attention an article that appeared in the local newspaper that morning Describing the defendant as having been previously convicted of murder This information of course has not come out at trial The defense attorney quite understandably is concerned that some or all of the members of the jury have seen the article and that the defendant will be prejudiced thereby The judge in this situation must make a two step inquiry First was the article prejudicial that is did it go beyond the record into possible prejudicial material did it speculate on the defendant's guilt or innocence Was the information the defendant complains of closely related to the issues in the case If the article could be deemed prejudicial and I would define prejudicial very broadly The second step in the inquiry is whether the article came to the attention of any of the jurors This determination is made by polling the jury either separately or as a group If any juror saw the article you must then determine out of the presence of the other jurors The extent of the exposure the effect of that exposure on the jurors attitude toward the defendant and the trial And whether that juror discussed the article with his or her fellow jurors This of course is all done on the record with counsel and the defendant present Depending on the response or responses you will then have to determine whether a cautionary instruction is sufficient Whether the juror or jurors will have to be excused and replaced by alternates Or whether a mistrial is the only alternative I tell you that in my experience this problem has been more imagined than real Either because jurors have heeded my daily instruction not to read anything about the case Or because having been given that instruction they are reluctant to admit that they have violated it I myself am an unabashed fan of the jury system and of the keen sense of responsibility that jurors feel And tend to believe that my jurors have followed my instruction My instincts tell me that there are risks associated with note-taking which in the usual case outweigh any benefits Judges and lawyers are disciplined note-takers trained to look for certain things that will be noted when they surface But many jurors do not work at occupations where they are required to take notes And not being skilled observers of the scene do not necessarily know what to look for Moreover when one is preoccupied with taking notes one is not focused on listening to or watching the witness Or what is going on in the courtroom as one should be As a practical matter few jurors will take notes Permitting it is likely to lead to note-taking only by those who are practiced at it Of course you can instruct the jury that the notes are not evidence and that jurors should not be influenced by other jurors' notes I believe however along with some other judges that the brighter quicker faster writing juror will have more clout during deliberations Because of the imprimatur his notes provide Even though those notes will indicate only what he heard or thinks he heard And more importantly that portion of testimony that he thinks is significant Those judges who are greater fans of note-taking than I believe that whether a juror will dominate deliberations is not determined by whether he or she takes notes You might try it both ways and come to your own conclusion Now on occasion in a case with more than one defendant one of the defendants wishes to plead guilty during trial There are a few things you should know when that fact is brought to your attention First the guilty plea should always be taken out of the presence of the jury Second it should be taken at some point when it will not cause the trial to be delayed Like during the lunch break or at the end of the day Third until such time as the defendant has in fact pled guilty he or she should continue to participate in the trial Why? Because the defendant may change his or her mind even while you are taking the plea Fourth after the plea has been taken and the defendant is no longer in the courtroom The jury should be instructed that it should not speculate as to why the defendant is no longer at trial And that it should not consider his absence for any purpose whatsoever If evidence has been received as to that defendant only an appropriate limiting instruction should also be given So that the jury will not consider that evidence as to any other defendant It is a good idea to consult counsel first on these instructions One of the most critical parts of the trial and it need not take place in the courtroom is the charge conference This is the conference at which the judge informs counsel as he or she is required to do under federal rule of criminal procedure 30 of his or her proposed action on the parties written requests for instructions to be given to the jury I say it is one of the most critical parts of the trial because more criminal cases are reversed on the instructions to the jury than on anything else And the charge conference is where those instructions are ironed out Now even though I told you earlier that your paramount concern should not be the circuit When it comes to the instructions to the jury you must be sensitive to the law of your circuit An investment of more rather than less time is called for The temptation I assure you will be otherwise You're at the end of a long trial everyone is tired and wants to get done And you know you can rush the charge conference through and begin summations immediately Take it slow I recommend holding the charge conference in chambers It's more relaxed, lends itself more to discussion as opposed to argument And the defendant need not be present Indeed the defendant need not be present even if you hold the charge conference in the courtroom Because you will be discussing and deciding issues of law Also although it is not required I strongly recommend that the charge conference be on the record This will allow for easy resolution of differences of opinion that may arise later on On such matters as whether a particular request was made, who made it and what you decided Permit me to suggest a procedure which has worked extraordinarily well for me Typically in each case at least one of the attorneys usually a seasoned assistant U.S. attorney Assistant federal public defender or other defense counsel Submits an adequate and perhaps excellent set of requests to charge I suggest you use that set of requests as a master set in fashioning your jury instructions I often use those submitted by the assistant U.S. attorney for example Because I find they are the product of a number of charge conferences And a great deal of experience on the part of innumerable assistant U.S. attorneys But in any event use what you feel is the best set of requests to charge Submitted by an attorney in the case as a master set and try the following procedure A few days prior to the charge conference Require the other attorneys to indicate in a different color But on the same copy of your master set of requests Their objections or suggestions for improvements to those requests Then permit the other attorneys to submit any additional requests they may have If history is any teacher you may receive one or two additional requests From the remaining attorneys and more likely none That aside though you will have one copy of requests to work from When you prepare your charge making your life much easier Some final comments on jury instructions I strongly recommend that you do not marshal the evidence It takes a great deal of time and skill to do it well It is difficult to do a balanced marshalling of the evidence And impossible of course where the defendant or one of the defendants Has not put on a case I also strongly recommend that particularly in the complex criminal case A copy of your instructions be given to the jury While it will be somewhat more work for you and your secretary or court reporter It will be extraordinarily helpful to the jury Should not be expected to understand after one hearing That which many attorneys do not understand And I assure you if the jury has a copy of the instructions You will have to respond to far fewer questions than if it does not In this connection whenever possible and always When a copy of the instructions is to go to the jury I have my instructions in what I hope will be final form A day or two before I charge Counsel are given copies at that time And any final corrections, suggestions and objections Can be incorporated if appropriate As a result after the charge has been delivered And counsel are brought to sidebar as they must be To articulate any corrections, suggestions or objections There is little if anything left to be said In the federal courts the instructions to the jury Have always been delivered following counsel's closing statements A 1987 amendment to rule 30 however Gives the court discretion to instruct the jury Before or after closing statements or at both times As the advisory committee notes to rule 30 indicate Permitting courts to instruct before arguments Gives the parties the opportunity to argue to the jury In light of the exact language used by the court In addition, permitting courts to instruct both before And after arguments assures that the court retains power To remedy omissions in pre-argument instructions Or add instructions necessitated by the arguments Some judges believe that if the jury receives The bulk of the instructions before argument Counsel's closing arguments will be more meaningful To the jury and shorter as well Because counsel won't preview the instructions during argument I prefer the traditional approach If for no other reason than as a matter of perception The jury is instructed as to the importance of the instructions And that it is the instructions against which everything That has been received at trial must be viewed In my court the jury is also told That the instructions are so important That the courtroom is locked while they are delivered So that the jury's attention is not diverted By people walking in and out of the courtroom Thus it makes sense at least to me That delivery of the full instructions should be The culminating point of the trial After which the jury immediately retires to deliberate There is another reason as well Closing statements in a criminal case can be emotional And certainly more emotional than closings In a case in which the issue is who breached our contract Delivering the full instructions to the jury Immediately prior to deliberations Rather than prior to closing statements Will have a moderating influence In this connection do not underestimate the advantage And thus the potential unfairness Of the jury commencing deliberations With a government rebuttal summation ringing In its ears The call however is yours And again you might try it both ways After the instructions have been delivered And any objections ruled upon The alternates are excused with the thanks of the court Then the marshal Lorbaelov Who will guard the jury is sworn In the presence of the jury And the jury retires to the jury room To commence deliberations You will of course send into the jury room Those exhibits which have been received in evidence And most likely a verdict sheet A note of caution Before you send exhibits into the jury room Have counsel review them To ensure that nothing goes in That should not go in Counsel should review the verdict sheet as well There are a few situations or issues That can arise during deliberations Of which you should be especially aware First you will almost certainly receive One or more notes from the jury during deliberations Of course the jury can communicate with you Only by note and is so instructed When you receive a note Convene counsel and discuss What the appropriate response should be In my view this discussion Should be on the record Unless the note involves a pro forma matter Or pro forma question If the note requests a rereading Of a portion of your instructions Or a rereading of the testimony of a witness You should respond to it In open court or in writing If the jury has requested and receives A rereading of a portion of your instructions You should remind it That it should consider these instructions Together with all the instructions in the case And consider the instructions as a whole If the jury has requested and receives A read back of testimony You should instruct the jury Not to give undue weight to that testimony And to reach a decision based on all of the evidence Let me speak for a moment About rereading testimony Or if there has been daily transcript Sending the requested testimony Somewhat surprisingly at least to me The circuit practice on such requests Varies dramatically The second and third circuits for example Favor compliance with such requests The sixth, ninth and tenth do not If there is reason to believe That the jury may overemphasize The requested testimony at the expense Of other testimony If there would be difficulty in complying With the request because for example The requested testimony is voluminous Or if the requested testimony Was of limited value If however the requested testimony is important If it goes to an essential element Of the crime charge and if it is not voluminous There is no reason not to comply With the request even in those circuits When there is a request for a Read back of testimony or for the transcript You must consult with counsel While counsel will rarely take the position That the requested testimony should not Be reread or sent in There may be disagreement particularly If the jury has not been specific As to what should go to the jury Those disagreements should be resolved On the record Certainly if the jury has requested A portion of the direct testimony Of a particular witness The relevant cross-examination Should be given to it as well Even though it was not requested Certainly too all sidebars Should be deleted from a rereading Or from a transcript that is sent in To the jury If you have had daily copy And if like me you have your court Reporter transcribe sidebars On pages separate from those On which testimony appears For just this eventuality Easy to do in this computer age It takes minutes to rip out The sidebar pages and send The transcript in Should you do this? Or should you rather bring the jury Back into the courtroom for a read back My practice initially Is to give the jury a read back It takes longer But it is so deadly That the jury may well not Ask for more When you start off by providing Transcripts which as I told you Can be provided in a flash The jury is very likely to call For more and more If the jury has not reached a verdict By the end of the first day of deliberations I will send it a note With the consent of counsel Between 5.30 and 6.00 p.m. In the note I inquire Whether the jury wishes to continue With deliberations Or whether it wishes to recess For the evening and resume The following morning If the jury wishes to continue It will be permitted to do so If it wishes to recess for the evening I will bring the jury into the courtroom And remind it not to discuss The case with anyone I tell the jury to be back In the jury room at 9.30 The following morning If that is the appointed time And that it may not resume Its deliberations or discuss Anything about the case until The jurors are present And if you permit the jury To go out for lunch during deliberations Which I do not Then you should tell them The same goes for lunch breaks The jurors should never deliberate Unless they are all together And all in the jury room On subsequent days If there is still no verdict The instruction not to deliberate Until all jurors have arrived In the morning can be written Once it has indicated its wish To recess for the evening On rare occasions Hopefully rare occasions You may have a jury Advise you that it is deadlocked You will of course Send it back to continue deliberations The first and perhaps The second and third times You were so advised But watch you instruct them And how you deal with the situation That is the substantive Neutral requirements Varies from circuit to circuit You should familiarize yourselves With the law in your circuit There are however Certain universal principles You cannot inquire Into how the jury stands Numerically You cannot instruct the jury In a manner that is coercive In nature and you should not Tell the jury that failure To reach a verdict will necessitate A new trial or Refer to the court's crowded docket Hopefully Most hopefully After you have instructed the jury In accordance with your circuit's law The jury will advise you That it has reached a verdict You will take that verdict In open court in the presence Of the defendant following the procedure Set forth in the bench book Counsel for the losing party Will almost certainly wish to have the jury polled If by any chance Any juror responds No When asked if he or she agrees With a verdict Stop the poll immediately Send the jury back Into the jury room to resume deliberations When the jury again Advises you That it has a verdict And returns to the courtroom For the taking of that verdict Pick up the poll with the juror No And not with juror number one I have never tried either a civil Or a criminal case Where I have not gone into the jury room After the verdict has been returned And thanked each juror personally For his or her service I cannot tell you how much Jurors appreciate this And particularly appreciate this Following a criminal case In which the defendant was convicted Jurors are keenly aware Of what they have done And they know without having been told That they are effectively Sending a man or a woman to jail For what may be a long Period of time Even though they believe that their verdict was correct They are not rejoicing And indeed may be distressed That a judge takes the time To come to them And tell them personally That the judge knows what they have been through And deeply appreciates their service And their sacrifice Has invariably in my experience Enabled the jurors to leave With their heads held high May each of you find In this position you are entering Much success And much happiness