The Judge presiding over the trial of William Porter (one of the officers charged in the death of Freddie Gray) announced yesterday that the jury was hopelessly deadlocked. He therefore declared a mistrial. Earlier that same day, the jury had requested a transcript of a witness’s testimony from the trial. Apparently, the jurors thought that reviewing some portion of the trial testimony might have helped them come to a decision. But the judge denied the jury’s request.
Why? I have two answers to that question. First: I don’t know. I wasn’t in the courtroom when the jury’s request was read, nor did I hear the Judge’s reasons for denying the request. I don’t even know what testimony was requested. Press accounts have not filled in these gaps. So I can’t say.
But second: Though it may sound strange to deny a jury’s request to review trial testimony, there are a number of reasons why a judge might–and in some cases perhaps should–deny such a request.
Judges have abundant discretion in responding to such requests. Under Maryland law:
The court, after notice to the parties, may make available to the jury testimony . . . requested by it. In order that undue prominence not be given to the evidence requested, the court may also make available additional evidence relating to the same factual issue.
Md. Crim. Rule 4-326 (emphasis added).
That “may” is important. One Maryland court has described the rule’s language as “quintessentially the language of discretion.” Jackson v. State, 164 Md. App. 679, 725, 884 A.2d 694, 720 (2005). So the Judge could pretty much do whatever he wanted.
But when a judge has discretion, the question arises: What factors should guide the exercise of that discretion? Numerous jurisdictions–not just Maryland–give trial judges discretion to provide or withhold trial transcripts. And many of those jurisdictions disfavor the provision of testimony during deliberations.
For example, the Ninth Circuit Court of Appeals has warned that reading one transcript may put too much weight on that witness’s testimony:
The reading of certain witnesses’ testimony, after the jury retires, places emphasis on it, which might well result in the jury’s failure to consider the evidence as a whole. This is particularly true when the defendant’s evidence is diametrically opposed to that of the prosecution, or vice versa. Perhaps if any evidence is read, all should be read. Any trial could thus be almost endless.
United States v. De Palma, 414 F.2d 394, 396 (9th Cir. 1969).
If a trial judge decides to provide trial testimony, the Ninth Circuit has recommended that the judge also provide a cautionary instruction to the jury, like the following:
I want you to bear in mind that the testimony at trial is the evidence, not the transcripts. The transcript is not authoritative. If you remember something different from what appears in the transcripts, your collective recollection is controlling. In other words, the transcripts may not serve as a substitute for the collective memories of the jury or take the place of the assessment of the credibility of witnesses subject to the usual rules. . . . Finally, as the court has previously instructed you, you must weigh all of the evidence in the case and not focus on any one portion of the trial.
United States v. Montgomery, 150 F.3d 983, 999-1000 (9th Cir. 1998).
Moreover, as these two examples show, a trial judge has a variety of options when a jury requests trial testimony. A judge could simply instruct the jury to rely on its collective memory, like the Judge in the Porter trial. But if a judge wants to provide a refresher, she could either  provide the jury with a written transcript of the relevant testimony or  call the jury into the courtroom for a reading of the testimony, before being sent back to deliberate without a transcript. You can imagine how boring the re-reading of a transcript might be. So why do it?
The Second Circuit Court of Appeals has explained that a reading of the testimony may be preferable because it reduces the opportunity for jurors to focus on one aspect of a written transcript, at the expense of the rest of the trial testimony:
[A] trial court’s response to any particular request should be guided by consideration of the jurors’ need to review the evidence before reaching a verdict, assessed against the difficulty in locating the specific testimony requested, the possibility of undue emphasis on any portion of the testimony, and the possibility of undue delay in the trial. We have also stated a clear preference for readbacks whenever they are requested by a deliberating jury. Indeed, we have explicitly held that it is not within the trial court’s discretion to announce a wholesale prohibition on readbacks, and we have expressed disapproval of the practice of discouraging the jury from requesting them.
Though some courts have concluded that there is no material difference between sending the jury written transcripts of trial testimony and providing for in-court readbacks, others have noted that permitting the jury to have unsupervised access to written transcripts poses an enhanced danger that jurors may unduly emphasize discrete sections of the trial testimony . . . .
United States v. Escotto, 121 F.3d 81, 84 (2d Cir. 1997) (citations omitted) (emphasis added).
That said, and putting preferences aside, “the decision to provide the jury with transcripts in lieu of requested readbacks should be left to the trial court’s discretion, just like the decision as to a request for transcripts.” Id. at 84. “Whether a court permits readbacks or sends transcripts, appropriate cautions should be given to the jury to minimize the particular risks associated with either technique.” Id.; see also United States v. Rodgers, 109 F.3d 1138, 1144-45 (6th Cir. 1997) (“[I]f a district court chooses to give a deliberating jury transcribed testimony, or chooses to re-read testimony to a deliberating jury, the district court must give an instruction cautioning the jury on the proper use of that testimony.”).
So there you have it. Though it may seem strange to deny the jury access to trial testimony during deliberations, much of the case law seems to favor the denial of such requests. And even absent that thumb on the scale, the trial judge has immense discretion to do whatever he’d like.