4.Written Instructions and Closing-Argument Logistics
24 lines(Jury not present.)
THE COURT: You may be seated.
MR. BUTING: Judge, one thing that might be helpful just to explain to the jury so they have some idea how the day will proceed, that the State goes first, then the defense, and then the State, actually, has a follow-up rebuttal. Otherwise they may be unclear on how that works.
THE COURT: Any objection from the State?
MR. KRATZ: No.
THE COURT: I should indicate during the side bar, requested by the defense -- Well, Mr. Strang, I will let you reiterate what you told the court.
MR. STRANG: I asked for a side bar shortly before instructions began, but after written instructions had been distributed to the jurors. I raised my concern simply that I did not think the jurors should have written instructions in their hands or with them at their chairs during closing arguments; although, I certainly agree they should have a copy of the written instructions during deliberations.
As I understand, without objection from Mr. Kratz on behalf of the State, the Court agreed to collect the written instructions again at this point, from the jurors, and redistribute them again after the jury is sworn to begin deliberations.
THE COURT: Mr. Kratz?
MR. KRATZ: That's fine.
THE COURT: I'm just -- If I understand, I was told what the parties were requesting; I don't remember the part about ordering them being collected. My concern is this, I generally instruct, before closing arguments and hand out the instructions because sometimes the attorneys in their closing argument wish to refer to specific instructions.
I don't know if either of you intend to do that, but if you do, I generally allow -- first of all, I allow the attorneys to invite the jurors to flip to a page so that the jurors can follow along with what the attorney is reading and not have to take the attorney's word for it that that is the instruction.
Let me suggest this, I could tell the jurors, when they come back for closing arguments, to set the instructions down under their chair and only refer to them if one side or another, in its closing argument, invites them to. Does that address your concern?
MR. STRANG: I think it would. It had been our plan simply to put an instruction up on the ELMO if we intended to use much of it, but I think what the Court is proposing would do the same thing. The concern here is for the same reason we don't allow jurors to take notes during the closing arguments, we don't want divided attention.
THE COURT: Mr. Kratz.
MR. KRATZ: That's fine.
THE COURT: All right. Well, I also, as a practical matter, don't want them to misplace theirs. I don't think they have written their names on them. I will do this, I will instruct them to place the instructions on the floor and not pick them up to look at them during closings, unless the attorney making the closing invites them to.
MR. STRANG: I'm going to duck out for two minutes, if we have two minutes.
THE COURT: All right. We'll do that. We'll take a couple quick minutes before we start.
(Brief recess taken.)
(Jury present.)
THE COURT: Members of the jury, before we get started, I have a couple of announcements for you. First, with respect to the format, in closing arguments the State, because the State has the burden of proof, goes first. We will, I believe, take a break sometime this morning, in the middle of the State's closing argument. The defense, then, gets a chance to make its closing argument. And the State has a final chance to make argument in rebuttal, after they have heard what the defense argument is.
The other thing is, I'm going to ask you at this time to take your copy of the closing instructions -- the jury instructions, if you brought them out, set them on the floor upside down. We do this to make sure that everybody is paying attention to the closing arguments.
The attorneys are permitted, if they wish, to make reference to the jury instructions in their closings. If they ask you to take a look at any instruction, you may pick them up at that point, otherwise set them down. I believe nobody has pens or notebooks, correct, because you are not permitted to take notes during closing arguments. With that, Mr. Kratz, you may proceed.
MR. KRATZ: Thank you, Judge. I don't know how the volume is on this mike.
THE COURT: Do you know if you are number seven or eight?
MR. STRANG: Eight.
MR. KRATZ: I guess I'm eight, Judge.
THE COURT: Okay.