Dealing With Questions Posed by the Jury During Deliberations

By Lawrence P. Devens

Brustin & Lundblad, Ltd.

Recognizing that the matter of instructing juries is “one of the greatest obstacles to the prompt and true administration of justice in the trial of jury cases,” the Illinois bench and bar set upon the mission that ultimately resulted in the Illinois Pattern Jury Instructions.¹ This article addresses certain issues that arise when the jury poses a question to the trial court during deliberations which may or may not be addressed by the IPI. Courts and litigants must be prepared to deal with such questions well in advance as these issues come at a particularly delicate juncture of the trial and as such require heightened scrutiny.² Indeed it has been held that a question from a jury in the midst of deliberations after a vigorously contested trial, “deserves as much - if not more - thoughtful consideration as did the original instructions.”³

Once the original instructions are read to the jury and they retire to deliberate, the trial court should instruct counsel for all parties to be readily available should the jury pose a question during deliberations. Counsel should provide the court or its clerk with cell phone numbers as well as office numbers because the trial court is generally not allowed to respond to any questions posed by the jury before notifying counsel.⁴

Nevertheless, the right to be present may be waived by counsel and the ensuing verdict against the waiving party may not be reversed absent a showing of prejudicial error.⁵ Once the question has been posed and counsel has been notified the court must then determine an appropriate response to the jury’s inquiry. Unless otherwise agreed to by the parties, any clarifying instruction the court provides must be in writing.⁶ Trial counsel should be prepared to provide the court with a written draft of the specific response to the jury’s inquiry he wants given or risk waiving the issue on appeal.⁷

In general when the trial court receives a question from the deliberating jury, it has a duty to instruct the jury in order to clarify any point of law that has generated confusion that the jury seeks to resolve by its question.⁸ However, this duty to instruct is reviewed under an abuse of discretion standard.⁹ Whether the trial court properly exercises its discretion in determining whether to answer a question, and if so how to answer a question will in most cases depend upon the nature of the question. For example, a jury request to review an exhibit or certain testimony may be viewed differently than a question demonstrating confusion over a substantive issue of law.

Generally, the trial court does have a duty to answer a question from the jury that seeks clarification on a point of law arising from facts about which there is doubt or confusion. ¹⁰ However, a trial court has discretion not to answer such a question “when the instructions are readily understandable and sufficiently explain the relevant law; where further instruction would potentially mislead the jury; when the jury’s inquiry involves a question of fact or where giving an answer would cause the court to express an opinion that would likely direct a verdict one way or another.” ¹¹ This admonition from the appellate court appears to beg the question as to what establishes whether the instructions are in fact “readily understandable” and if so, why the jury’s question?

Generally, the reviewing courts seem to examine jury questions involving “substantive legal issues” with greater scrutiny that more “routine” questions such as whether the jury could examine particular exhibits or have certain testimony read back. While it is generally not error for the court to refuse to read back testimony upon a deliberating jury’s request, there is also support for allowing a jury to review such testimony. Thus, it was not reversible error for the trial court to instruct the court reporter to transcribe the portions of the testimony the jury requested when there was confusion over whether a discussion regarding repairing a stairway occurred before or after the plaintiff’s fall.¹² Either way, the case law appears to uphold the trial court’s discretion.

The trial court may be endowed with somewhat less deference when the question appears to suggest jury confusion over a substantive legal issue. In those cases, the trial court has a duty to directly answer the question. ¹³ In Childs, the jury asked whether the defendant “could be found guilty of robbery and either voluntary or involuntary manslaughter, or if a finding of guilt of armed robbery mandated a ‘guilty of murder’ verdict.” ¹⁴ The Court viewed this as an explicit question evincing juror confusion over a substantive legal issue and that the failure to directly answer it warranted a new trial:

“[J]urors are entitled to have their questions answered. Thus, the general rule is that the trial court has a duty to provide instruction to the jury where it has posed an explicit question or requested clarification on a point of law arising from facts about which there is doubt or confusion. This is true even though the jury was properly instructed originally. When a jury makes explicit its difficulties, the court should resolve them with specificity and accuracy. The failure to answer or the giving of a response which provides no answer to the particular question of law posed has been held to be prejudicial error.”¹⁵

The Court in Childs made clear that resolving such confusion with “specificity and accuracy” is not accomplished by referring the jury to the same instruction that caused their confusion in the first place. ¹⁶

This requirement to respond to substantive questions for which there was apparent confusion has been applied to civil cases.¹⁷ Van Winkle, involved an action based on civil conspiracy against the manufacturer of asbestos-containing products. The jury sent a question as to whether the conspiracy had to be between the defendant and another company or could it be between individual employees of the defendant corporation. Defense counsel suggested that the court instruct the jury, “yes, it has to be between [Defendant] and another company…You cannot conspire with yourself.” ¹⁸ Plaintiff’s counsel objected and the trial court responded with a note instructing the jury to reconsider the instructions previously given. The Appellate Court reversed and remanded for a new trial holding that the trial court erred in referring the jury to the previous instruction which was “no response at all.”¹⁹ The court reasoned that the jury’s question involved a substantive legal issue, namely, the elements of a civil conspiracy, and therefore it abused its discretion by failing to answer it directly.²⁰

Despite this directive, the case law still holds that even when the jury posits a question involving a substantive legal issue, it is still within the trial court’s discretion to refuse a request for clarification if the trial court determines that the jury was not clearly confused.²¹ In Kingston, the Supreme Court held that the trial judge was not obliged to issue a clarifying instruction defining “causes of intoxication” in a dram shop case when the trial court concluded that the jury was not clearly confused. In reaching this result the Court stated:

“If asking the question alone were enough to show such confusion on the part of a jury, then trial courts would have no discretion but would be obligated to answer all relevant questions posed by the jury during its deliberations.”²²

The Court went on to note that the bailiff had reported to the judge that when the jurors were informed that there would be no further instructions, they said, “Okay. That answers our question.” ²³

Thus, when the trial court determines that the jury is not clearly confused, it has discretion to refer the jury to the standing instructions or even to reiterate them. For example, an inquiry from the jury during deliberations in a medical negligence trial prompted the question as to whether it was required to find unanimously for at least one item listed within the issues instruction. The appellate court held that it was not error for the trial court to return the following response to the jury:

You must be unanimous that the Defendant was negligent in one or more of the respects set out in the instructions - and the Plaintiff was injured - and the negligence of the Defendant was a proximate cause of the injuries suffered by the Plaintiff.

Remember, you must consider the instructions as a whole, not picking out one instruction and disregarding others.²⁴

Conclusion

A careful reading of the case law suggests that not all jury questions are created equal in the eyes of the reviewing courts. The trial court’s response to more “routine” inquiries as to whether a certain exhibit may be reviewed or whether certain testimony may read back will almost always be upheld as a proper exercise of judicial discretion. However explicit questions pertaining to substantive legal issues require an additional inquiry. In these cases a record must be made as to whether there is evidence of “juror confusion” that cannot be resolved by reference to the instructions already given. If the record is made that the juror’s question can be adequately resolved by reference to the instructions already given, then the trial judge’s decision to refer the jury to the standing instructions will most likely be upheld. On the other hand, if a record is made evincing juror confusion over a substantive issue that cannot be so resolved by referring to the standing instructions, the trial court and counsel should be prepared with a clarifying written instruction. The court’s refusal to tender such an instruction in the face of such confusion may be considered an abuse of discretion and reversible error.

¹See, IPI Civil, (2006 Edition), “Forward to the First Edition.”

²Testa v. Wal-Mart Stores, Inc., 144 F.3d 173 (1^st Cir. 1998).

³Van Winkle v. Owens-corning Fiberglass Corp., 291 Ill.App.3d 165, 683 N.E.2d 985 (1997).

⁴See, e.g., Gale v. Hoekstra, 59 Ill.App3d 400, 407 375, NE.2d 456, 462 (1^st. Dist. 1978) citing, City of Mound City v. Mason, 262 Ill.392, 104 N.E. 685 (1914).

⁵Gale, 59 Ill.App.3d at 408, 375 N.E.2d at 462.

⁶See, generally, 735 ILCS 5/2-1107. “The court shall give instructions to the jury only in writing, unless the parties agree otherwise, and only as to the law of the case...”

⁷See, Van Winkle, 291 Ill.App.3d at 173 where the court stated, “we hold that when jurors raise a question during deliberations, counsel must submit - in writing - the specific response counsel wants the court to give the jury. Because we are pronouncing a new rule, we believe it only equitable that we apply it prospectively.”

⁸Id.

⁹Kingston v. Turner, 115 Ill.2d 445, 463, 505 N.E.2d 320 (1987); Baraniak v. Kurby, 371 Ill.App.3rd 310, 862 N.E.2d 1152 (1^st Dist. 2007).

¹⁰People v. Millsap, 189 Ill.2d 155, 160, 274 N.E.2d 942 (2000).

¹¹Cress v. Recreation Services, Inc., 341 Ill.App.3d 149, 795 N.E.2d 817 (2^nd Dist 2003) (citing, Millsap, 189 Ill.2d at 161, 724 N.E.2d at 942.)

¹²Smith v. Baker’s Feed and Grain, 213 Ill.App.3d 950, 572 N.E.2d 430 (3^rd Dist. 1991) (citing, People v. Pierce, 56 Ill.2d 361, 308 N.E.2d 577 (1974).

¹³Van Winkle v. Owens-Corning, 291 Ill. App.3d 165 (4th Dist. 1997); People v. Childs, 159 Ill.2d 217 (1994).

¹⁴Childs, 159 Ill.2d at 229.

¹⁵Childs, 159 Ill.2d at 228-229.

¹⁶Id.

¹⁷See, Van Winkle, supra, note 13.

¹⁸291 Ill. App. 3d at 171-73.

¹⁹ 291 Ill. App. 3d at 273.

²⁰ Id.

²¹Kingston v. Turner, 115 Ill.2d 445, 463, 505 N.E.2d 320 (1987).

²²115 Ill.2d at 463.

²³Id.

²⁴Schiff v. Friberg, 331 Ill.App.3d 643, 771 N.E.2d 17 (1^st Dist. 2002).