Printable Format22-3420. Conduct of jury after submission. (a) When the case is finally submitted to the jury, they shall retire for deliberation. They must be kept together in some convenient place under charge of a bailiff until they agree upon a verdict, or be discharged by the court, subject to the discretion of the court to permit them to separate temporarily at night, and at their meals. The bailiff having them under such bailiff's charge shall not allow any communications to be made to them, or communicate with them, unless by order of the court. Before the jury's verdict is rendered the bailiff shall not communicate to any person the state of their deliberations, or the verdict agreed upon. No person other than members of the jury shall be present in the jury room during deliberations.
(b) If the jury is permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that: (1) It is their duty not to converse with, or allow themselves to be addressed by any other person on any subject of the trial, and that any attempt to do so should be immediately reported by them to the court; (2) it is their duty not to make any final determinations or express any opinion on any subject of the trial until the case is finally submitted to them; and (3) such admonition shall apply to every subsequent separation of the jury.
(c) In the court's discretion, upon the jury's retiring for deliberation, the jury may take any admitted exhibits into the jury room, where they may review them without further permission from the court. If necessary, the court may provide equipment to facilitate review.
(d) The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff. The court shall notify the parties of the contents of the questions and provide them an opportunity to discuss an appropriate response. The defendant must be present during the discussion of such written questions, unless such presence is waived. The court shall respond to all questions from a deliberating jury in open court or in writing. In its discretion, the court may grant a jury's request to rehear testimony. The defendant must be present during any response if given in open court, unless such presence is waived. Written questions from the jury, the court's response and any objections thereto shall be made a part of the record.
(e) The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity, or other necessity to be found by the court requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.
(f) The amendments to this section by this act establish a procedural rule, and as such shall be construed and applied retroactively.
History: L. 1970, ch. 129, § 22-3420; L. 2014, ch. 102, § 7; July 1.
Source or Prior Law:
62-1446, 62-1448.
Law Review and Bar Journal References:
"Mandatory Read-Back of Testimony in Criminal Cases," Kathleen L. Sloan, J.K.T.L.A. Vol. XVII, No. 6, 9, 10, 17, 18 (1994).
"Solidifying the Use of Juvenile Proceedings as Sentence Enhancement and Clarifying Second-Degree Murder," Kay Redeker, 37 W.L.J. 483 (1998).
CASE ANNOTATIONS
1. Where court at first adjournment admonishes jurors, failure to admonish at subsequent short recesses during same day not presumptive error. State v. Bell, 206 Kan. 36, 37, 476 P.2d 213.
2. Jury should be admonished at each separation or adjournment but prejudicial error not presumed in absence of showing of misconduct. State v. Ralls, 213 Kan. 249, 254, 255, 515 P.2d 1205.
3. Denial of request to sequester jury in capital case held not per se prejudicial. State v. Jones, 218 Kan. 720, 723, 545 P.2d 323.
4. Failure to answer by the court question referring to instruction not an abuse of discretion. State v. Sully, 219 Kan. 222, 228, 547 P.2d 344.
5. No abuse of discretion in giving additional instruction in prosecution under K.S.A. 65-4127b. State v. Bullocks, 2 Kan. App. 2d 48, 52, 53, 574 P.2d 243.
6. Noncompliance with section; answers by court to questions submitted by jury constituted prejudicial error. State v. Dunnan, 223 Kan. 428, 432, 573 P.2d 1068.
7. Failure of court to admonish the jury prior to every recess not prejudicial error. State v. Gourley, 224 Kan. 167, 172, 578 P.2d 713.
8. Conviction hereunder as an aider and abettor affirmed; element of intent inferred from circumstantial evidence; standard of appellate review; abuse of judicial discretion in sentencing. State v. Goering, 225 Kan. 755, 756, 594 P.2d 194.
9. No error not to sequester jury and merely admonishing not to read articles; juror misconduct not prejudicial. State v. Baker, 227 Kan. 377, 383, 607 P.2d 61.
10. Stop of defendant's car under K.S.A. 22-2402 held justified by reasonable suspicion. State v. Hayes, 3 Kan. App. 2d 517, 519, 597 P.2d 268.
11. Robbery conviction reversed; trial court communication with jury concerning instructions and for review of evidence outside presence of defendants absent their waiver. State v. Antwine, 4 Kan. App. 2d 389, 401, 607 P.2d 519.
12. Readback of particular testimony requested by jury does not require readback of all other testimony of witness. State v. Gilley, 5 Kan. App. 2d 321, 323, 615 P.2d 827.
13. The trial court did not err in failing to admonish the jury regarding an improper statement made to the jury by the bailiff. State v. Morton, 230 Kan. 525, 527, 528, 638 P.2d 928 (1982).
14. Defendant's attorney knew before verdict that bailiff not sworn; failure to object amounted to waiver of irregularity. State v. Dedman, 230 Kan. 793, 794, 640 P.2d 1266 (1982).
15. Bailiff failed to inform trial judge of question asked by jury; held although error, failure of bailiff had no effect on jury's verdict. State v. Reed, 8 Kan. App. 2d 615, 620, 663 P.2d 680 (1983).
16. Trial court error in answering jury's question outside presence of defendant not likely to change trial results. State v. Knapp, 234 Kan. 170, 180, 671 P.2d 520 (1983).
17. Cited; written instructions only at close of argument, prejudicial effect of failing to deliver orally. State v. Norris, 10 Kan. App. 2d 397, 402, 699 P.2d 585 (1985).
18. Cited; discretion of court in complying with jury request for read back of testimony when transcription incomplete examined. State v. Redford, 242 Kan. 658, 667, 750 P.2d 1013 (1988).
19. Ex parte communication between judge and juror held to be harmless error under facts presented. Crease v. State, 252 Kan. 326, 333, 845 P.2d 27 (1993).
20. Ex parte communication between judge and juror violated defendant's right of presence at all critical stages of trial. State v. Bowser, 252 Kan. 582, 586, 847 P.2d 1231 (1993).
21. Whether defendant who approved answer to jury request denying testimony read-back may challenge on appeal examined. State v. Bruce, 255 Kan. 388, 396, 874 P.2d 1165 (1994).
22. Whether court erred by allowing jurors to submit written questions during trial examined; procedure for jurors' questioning witnesses discussed. State v. Hays, 256 Kan. 48, 53, 58, 883 P.2d 1093 (1994).
23. Whether judge abused discretion in response to jury request for read-back of testimony examined. State v. Boyd, 257 Kan. 82, 87, 891 P.2d 358 (1994).
24. Court has discretion to place jury readback request in context by including direct and cross-examination on requested readback subject. State v. Butler, 257 Kan. 1043, 1068, 897 P.2d 1007 (1995).
25. Trial court properly used discretion to limit excessive jury readback request. State v. Smith, 258 Kan. 321, 326, 904 P.2d 999 (1995).
26. Jury instruction which misstated readback law not so clearly erroneous as to constitute reversible error. State v. Cook, 259 Kan. 370, 393, 913 P.2d 97 (1996).
27. Trial court's failure to admonish jury to disregard portions of testimony during readback not an abuse of discretion. State v. Lolar, 259 Kan. 682, 685, 914 P.2d 950 (1996).
28. Victim has a right to be present during readback of victim's testimony subject to trial court rules of conduct. State v. Crane, 260 Kan. 208, 218, 918 P.2d 1256 (1996).
29. Readback conducted in defendant's absence without defendant's voluntary waiver of right constituted harmless error. State v. Acree, 22 Kan. App. 2d 350, 353, 916 P.2d 71 (1996).
30. Trial court did not err in instructing jury regarding intent element of intentional second-degree murder. State v. Pope, 23 Kan. App. 2d 69, 74, 927 P.2d 503 (1996).
31. No error found where court gave PIK which instructed the jury as to the substance of the statute. State v. Ordway, 261 Kan. 776, 791, 934 P.2d 94 (1997).
32. Unrequested supplemental jury instruction given by trial judge while defendant not present constituted harmless error. State v. McGinnes, 24 Kan. App. 2d 921, 927, 955 P.2d 1325 (1998).
33. Substantial prejudice not shown where judge failed to admonish jury on separation under K.S.A. 60-248. Hawkinson v. Bennett, 265 Kan. 564, 598, 962 P.2d 445 (1998).
34. Ex parte communication between trial judge and jury denied defendant right to fair trial constituting reversible error. State v. McGinnes, 266 Kan. 121, 127, 967 P.2d 763 (1998).
35. Questions from jury in deliberation must be answered in open court in defendant's presence, failure to do so held harmless error. State v. Bell, 266 Kan. 896, 919, 975 P.2d 239 (1999).
36. No error in responding to jury's request to read-back of testimony to limit read-back to direct examination. State v. Juiliano, 268 Kan. 89, 95, 991 P.2d 408 (1999).
37. Trial court has discretion to focus jury's request for read-back of testimony; upon providing jury with specific portions of requested testimony court has fulfilled requirements of statute. State v. Miller, 268 Kan. 517, 997 P.2d 90 (2000).
38. Violation of defendant's right to be present at every critical stage of trial held harmless error because of overwhelming evidence against defendant. State v. Rayton, 268 Kan. 711, 1 P.3d 854 (2000).
39. Trial court's written response of "no" to jury question held harmless error. State v. Coyote, 268 Kan. 726, 1 P.3d 836 (2000).
40. No trial error for trial court to request jury to specify which part of testimony it wished to have read back. State v. Jorrick, 269 Kan. 72, 4 P.3d 610 (2000).
41. Held harmless error for trial judge, without having defendant present, to respond to written jury question by referring in writing jury to instruction given on subject. State v. Brown, 272 Kan. 809, 37 P.3d 31 (2001).
42. During its deliberations, the jury's viewing of videotape admitted into evidence not subject to provisions of section. State v. Bolton, 274 Kan. 1, 49 P.3d 468 (2002).
43. Held harmless error for court to talk in chambers to two female jurors who complained a male spectator glared at them and followed them outside courtroom. State v. Mann, 274 Kan. 670, 56 P.3d 212 (2002).
44. Trial court's answer to question of jury insufficient to properly instruct jury. State v. Bunyard, 281 Kan. 392, 408, 409, 410, 133 P.3d 14 (2006).
45. No error for trial court to refuse to provide jury further information regarding whether certain facts constituted aiding and abetting. State v. Francis, 282 Kan. 120, 147, 145 P.3d 48 (2006).
46. Section contains no "contemporaneous objection" requirement, contra K.S.A. 60-404. State v. Holt, 285 Kan. 760, 768, 175 P.3d 239 (2008).
47. Mentioned in case where defendant objected to read back to jury not including cross-examination; no error found. State v. Bryant, 285 Kan. 970, 984, 179 P.3d 1122 (2008).
48. Cited in discussion on reopening case after party has rested and motions of acquittal. State v. Murdock, 286 Kan. 661, 680, 683, 187 P.3d 1267 (2008).
49. Cited; court properly responded to jury question. State v. Johnson, 40 Kan. App. 2d 1059, 1071, 198 P.3d 769 (2008).
50. Cited; No error or abuse of discretion in trial judge's answer to jury question. State v. Jones, 40 Kan. App. 2d 1146, 1165, 201 P.3d 710 (2009).
51. Jury's question to trial court; judge's response was erroneous; conviction reversed. State v. Jones, 41 Kan. App. 2d 714, 205 P.3d 779 (2009).
52. Trial court's failure to clarify jury's confusion by renewing transcript in response to jury's question violated express provisions of statutes governing jury instructions. State. v. Stieben, 292 Kan. 533, 256 P.3d 796 (2011).
53. District court's error in failing to follow the procedural requirements in responding to a jury question held harmless. State v. Womelsdorf, 47 Kan. App. 2d 307, 274 P.3d 662 (2012).
54. Defendant has right to be present when judge answers question submitted by jury. State v. King, 297 Kan. 955, 305 P.3d 641 (2013).
55. A prosecutor commits misconduct if the prosecutor makes an argument to the jury that is contrary to K.S.A. 22-3420. State v. Armstrong, 299 Kan. 405, 324 P.3d 1052 (2014).
56. Court's failure to read answer to jury question in open court in defendant's presence was held to be harmless error. State v. Ramirez, 50 Kan. App. 2d 922, 932, 334 P.3d 324 (2014).
57. Prior to 2014 amendment, statute is violated when a district court answers jury questions during deliberations without the defendant present. State v. Cooper, 303 Kan. 764, 767, 368 P.3d 232 (2016).
58. The 2014 amendment provided district court discretion to deliver written response to jury room without defendant present. State v. Harrison, 311 Kan. 848, 467 P.3d 477 (2020).
59. Selection of jury foreperson is not part of jury deliberations; alternate juror's participation in foreperson selection is not presumptively prejudicial. State v. Jackson, 61 Kan. App. 2d 184, 195, 500 P.3d 1188 (2021).