A few federal courts provide guidance on the use of electronic evidence during jury deliberations, including the Ninth Circuit Model Jury Instructions and the U.S. District Court for the District of New Hampshire
Assume that after contested briefing, some significant electronic evidence has been admitted at trial and used during closing argument. The jury begins deliberating. A jury note is received from the jury: “Can we view the electronic evidence during our deliberations?”
The jury normally has access to the trial exhibits during their deliberations. How should the trial court respond? Should they be permitted to view the electronic evidence on their own? What guidance should the court give to the jury in how to view the electronic evidence? There are a number of practical issues that may arise.
Given the increasing use of electronic evidence at trial, some federal courts are beginning addressing this issue and develop guidance. For example, the U.S. District Court for the New Hampshire District has provided specific guidance for counsel in civil and criminal cases to present evidence in an electronic format for a deliberating jury. See Presenting Electronic Evidence to Deliberating Petit Jurors. Under this guidance, a formal motion must be filed no later than the final pretrial conference, addressing certain factors including:
- What equipment will be used,
- Whether “specialized software will be necessary,”
- Whether “a special jury instruction is necessary and appropriate in order to protect the integrity of the deliberation process.”
The Ninth Circuit Model Civil Jury Instructions § 2.14 (Evidence In Electronic Format) provides guidance to the jury on the use of electronic evidence during jury deliberations. The instruction may be used where the parties have stipulated that the jury may view electronic evidence after the case has been submitted. Some of the factors addressed in the model instruction and comment include:
- Informing the jury of how to view the exhibits during their deliberations,
- The limited purpose for using computer equipment to view the electronic evidence,
- The role of a court technician to operate equipment,
- How to respond to any technical problems,
- The format for the electronic evidence,
- Backup copies.
The comment to the model civil instruction also notes that electronic evidence may be considered in criminal cases, however the trial court “should not permit any tape-recorded conversation or evidence to be included in the electronic evidence loaded onto the hard drive that contains the PDF files, because under Fed. R. Crim. P. 43, the defendant has a right to be present at the replaying of a tape.” Ninth Circuit Model Civil Jury Instructions § 2.14 (citation omitted).
The Ninth Circuit and the District of New Hampshire procedures provide general suggestions in the trial court's use of electronic evidence during jury deliberations. If you are aware of other examples, we would be interested in hearing about them.