The Jury Readback and the Bench Conference
During a Hawaii circuit court jury trial, the jury sends a note: 'Please read back Dr. Nakamura's testimony about the September 3 appointment and the 45-minute gap.' The judge tells you, 'Reporter, read back the relevant portion.' Dr. Nakamura testified on direct and cross. Her testimony includes a sidebar conference at the bench that the jury did not hear, an objection to plaintiff's Exhibit 12, and an answer that was later stricken. You have real-time notes but no final transcript. The jury is waiting. Defense counsel asks you to include the sidebar because 'it explains why the answer was stricken.' Plaintiff's counsel asks you to read only direct examination and to skip cross because 'the jury already heard it.' You must decide what to read aloud in open court.
1. What portion of the testimony should you read back?
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Read back only the testimony the judge designates as the jury's requested readback, not the entire direct or cross. The jury asked about Dr. Nakamura's testimony on the September 3 appointment and the 45-minute gap; the judge should define the scope, but the default is to read the portions of her testimony that address those subjects, whether they occurred on direct or cross, because the jury is entitled to the evidence, not one side's selected version. Do not summarize, paraphrase, or modernize the testimony. Read verbatim from your realtime notes or transcript, identify the witness and the question if needed for context, and keep your voice neutral. Plaintiff's request to skip cross is not controlling; defense counsel's request to include the sidebar is not controlling. If the judge says only 'read the relevant portion,' ask the judge on the record to clarify the start and end points.
2. How do you handle the sidebar, the objection, and the stricken answer?
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The sidebar conference is not part of the jury's evidence and should not be read. It occurred outside the jury's hearing and may contain legal argument or matters the jury is not permitted to consider. The objection to Exhibit 12 is also not evidence; do not read the objection or the court's ruling unless the judge specifically asks for a readback of the ruling itself. The answer that was later stricken is not evidence and should not be read. Read only the witness's testimony that remains in evidence and falls within the judge's designated scope. If the judge wants the jury to understand why an answer was stricken, the judge can give a curative instruction; the reporter should not use the sidebar to explain it. Preserve the sidebar separately in the transcript.
3. What do you do if the judge's instruction is ambiguous or the attorneys disagree?
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Do not resolve the disagreement yourself. Ask the judge, on the record and outside the jury's hearing if necessary, to clarify exactly what is to be read and whether cross-examination is included. Repeat the proposed scope back, for example: 'Your Honor, I will read Dr. Nakamura's testimony from the September 3 appointment through the 45-minute gap, including the cross-examination on that point; is that correct?' Once the judge rules, read only that portion. If the judge's instruction remains ambiguous, read the narrowest portion that directly responds to the jury's note and state on the record what you are doing. Note the readback request, the judge's instruction, and the time in your log. Preserve the realtime file.