Note Taking by Jurors and Lesser Included Offenses in Jury Charge

Lesser included, we’ve talked about that, a jury cannot convict the defendant of lesser included offense of… of lesser included offense, it’s not submitted in the jury instructions, that means a jury can’t take it upon themselves to go back in the jury room and come up with their own offense or nor can the state argue that to them and urge them to find something that’s not in the jury charge. Ok, we’ve talked about result and conduct oriented offenses. Ok, supplemental jury instructions on the law of accomplice witness testimony given to the jury after jury argument began was not harmful because the instruction benefited the accused.

Now this same case I was talking a moment ago, out of Alis at a Jim Wallace county I had a big problem with an accomplice witness charge not being given. And it was objected too all over the place, properly requested! And the star witness, basically the only proof the state had, was this cohort who was supposedly with my client when the killing happened and they said he was not an accomplice of course as a matter of law because he wasn’t charged but they wouldn’t even submit accomplice as a matter of fact for the jury’s determination. I urge all of you, when you have this type of scenarios; ask for that! Ask for an accomplice as a matter of fact. Why? Because they have to prove collaboration. Ok? They have to prove collaboration; someone can’t be convicted just based on a testimony of an accomplice. And that’s a big issue, so hang on to that.

Note taking! How many people… does your jurisdiction allow jurors to take notes? Anybody? Yeah? Ok. Well, some people think it’s good some people think it’s bad. I’m a note taker, notes would help me if I were sitting through you know the judio-arias trial. I think note taking might help me keep up with things. But again, I’m 50, so I have to take notes or I won’t remember. So, it just depends on your jurisdiction, it depends on your jury. Depends on your facts whether or not you think note taking is helpful. Generally, if you are allowed to take notes, as a juror you’re not allowed to share those notes with the other jurors. You cannot become a fact witness in this case. Ok, those are 2 sample instructions. Ok! Again if during jury deliberations, a dispute arises as the testimony presented they have to note the dispute and then they can ask for the record to be read back.

Ok, disallow note taking, talked about that. Fifth Amendment concerns! I’ve never seen a situation where I would not want the jury charge about the defendant not testified if my client didn’t testify. In other words, the jury is instructed that they cannot use that as evidence against the client if he or she chooses not to testify. Now there is case law that says; if you don’t want that in there, from the defense perspective, you don’t have to have it in there. I can’t imagine why you wouldn’t because I think it’s very important to remind the jury that that is not evidence of the accused guilt. How many of you people have actually sat on a criminal jury? Anybody? A few? I know they left me on the jury in my hometown of Burney right now. And I was certain I would get strutted but I wasn’t! And I’ve to tell you it’s one of the best experiences I’ve had in a long time, and it was a misdemeanor; possession of marijuana. And we found him not guilty.