The Withdrawn Instruction and the Off-the-Record Recharge
You are reporting a criminal jury trial in Peoria County. After closing arguments the judge reads twenty-seven instructions to the jury, then says: 'Instruction 14 is withdrawn; you may disregard it.' You had already taken down all of Instruction 14 as it was read. During deliberations a juror sends out a written note asking whether 'proximity to the weapon' is enough to establish constructive possession. The judge shows the note to both counsel at a sidebar that he directs you to take down, then says, 'We'll go off the record for a moment,' and immediately answers the jury in open court: 'Ladies and gentlemen, mere proximity is not enough; you must find knowledge and control.' The bailiff then collects the note, and the judge says, 'Keep that with the exhibits.' Neither the State nor defense counsel has objected to the recharge, and the judge has not ruled on whether the recharge is part of the record.
1. How is the withdrawn Instruction 14 handled in the transcript and in the instruction packet?
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Transcribe both the reading of Instruction 14 and the judge's withdrawal, verbatim and in sequence. The reading occurred in open court on the record and the withdrawal is itself a significant event: an appellate court reviewing a claim that the jury was exposed to an incorrect instruction needs to see exactly what was read, when, and what the judge said about it. Do not omit the withdrawn text on the theory that it 'didn't count.'
The instruction packet is a separate matter. The court, not the reporter, controls the set of instructions filed with the clerk and delivered to the jury. The judge's final packet ordinarily will not include Instruction 14, or will include it marked 'withdrawn.' You should not alter the packet yourself. If you notice that the packet and the oral record are out of step, raise it with the judge on the record at a break so the record reflects the final set. A brief note in the transcript index - 'Instruction No. 14 read and withdrawn' - is helpful but must not replace the verbatim text.
2. The judge says 'we'll go off the record' and then gives a substantive answer to the jury. What do you do?
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A statement made in open court, in the jury's presence, that conveys a legal standard to the deliberating jury is not made 'off the record' merely because the judge says so. Substantive communications with a deliberating jury are precisely what reviewing courts scrutinize.
Your practice should be: keep taking notes (you are not required to stop recording because someone says 'off the record'), and at the first opportunity ask the judge to clarify on the record - for example, 'Your Honor, would you like the recharge of the jury to be on the record?' If the judge declines, insert a bracketed notation such as '[Whereupon, an off-the-record discussion was had]' and then transcribe the open-court answer, because it was spoken aloud in the presence of the jury and is part of the proceedings. Never silently drop a substantive instruction to the jury; the safest and most defensible course is a full record, and the notation shows the reader exactly what the judge directed. If a dispute later arises, your notes and backup audio will support the transcript.
3. How is the juror's note handled, indexed and preserved?
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The note should become a court's exhibit. The judge's instruction to 'keep that with the exhibits' is the cue: confirm on the record that the note is being marked - for example, as Court's Exhibit 1 - so there is a clear chain of custody and the appellate court can see what the jury asked. The original goes to the clerk with the other exhibits; the reporter does not retain it.
In the transcript, show the sidebar (with a notation that it was taken down at the judge's direction), the delivery of the note, the judge's statement that it is being marked, the recharge, and any objections. If the note's text was read aloud, transcribe it in quotation marks or as a block; if it was not read aloud, do not reproduce its contents from memory or from a photograph - describe the event and let the exhibit speak.
In the index, list it under court's exhibits with a cross-reference to the page where the recharge appears. This gives the reviewing court a single thread: question, sidebar, ruling, recharge.