Friday, December 9, 2016

Jury’s Access to Testimonial Videos During Deliberation Not Allowed

Testimonial videos shown in court are not allowed to be reviewed by jurors during deliberation because they are “testimonial in nature” and may disadvantage the opposing party

State v. Cruz, 2016 UT App 234

The Utah Court of Appeals found that video testimonial of a child should not have been reviewed by jurors during deliberation. Under rule 17 of the Utah Rules of Criminal Procedure,” [T]he jury may take with them the instructions of the court and all exhibits which have been received as evidence, except exhibits that should not, in the opinion of the court, be in the possession of the jury, such as exhibits of unusual size, weapons or contraband.”  The Supreme Court, however, has limited this rule by stating that the rule “indicates that exhibits which are testimonial in nature should not be given to the jury during its deliberation” because it would give an undue advantage to the party that presented the testimony.

In this case, two videos of a child responding to investigators at a Child Justice Center regarding alleged abuses were presented to the court as exhibits in the case. The exhibits, however, included victim testimony that could be replayed numerous times by a jury member, which is unlike testimony only heard in court. Its use during deliberation, as the Court of Appeals indicated, violates rule 17 and the Supreme Court’s precedent regarding the Jury’s use of testimonial evidence or exhibits during deliberation.

The court cautioned, however, that this ruling does not limit all videos from being used by a jury during deliberation, just those that are testimonial in nature.