Every trial lawyer envies the jury at the end of trial day as the judge admonishes the jurors not to talk about the case or do any outside work, just as the lawyers are setting out to prepare for the next day’s proceedings. But in a surprising twist, the Second Circuit Court of Appeals recently approved jury homework in United States v. Esso, the jury was allowed to take home copies of the indictment to study at their leisure.
In Esso, jurors in a criminal mortgage fraud trial requested to leave a bit early from the first day of deliberations. To speed the proceedings, they asked that each juror be allowed to take a copy of the indictment home with them so they could read it on their own. The judge allowed them to do so over the defendant’s objections. The judge warned the jury neither to discuss the indictment nor to do any independent research on the case. And the judge reiterated that the indictment is just an accusation and is not evidence.
The Second Circuit, in a case of first impression, held that allowing homework did not deprive the defendant of a fair trial. The court reasoned that having the indictment at home is similar to thinking about the case while at home. The court also relied on precedent from a few jurisdictions that have allowed jurors to take home jury instructions during deliberations. The court put special emphasis on the fact that trial judges are afforded broad discretion in trial management techniques, especially when the techniques are intended to save time. The court cautioned that the risk of a juror discussing the case with a loved one or doing independent research was greater if the indictment was sent home with them. But, since there was no evidence that the jury disregarded the “clear, uncomplicated” warnings to the contrary, the practice was allowed.