Tagged: jury notes

NYCA Addresses the Mode of Proceedings Error Doctrine

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The “mode of proceedings error” doctrine created by the NY Court of Appeals recognizes that some errors committed by a criminal trial court are so harmful to the integrity of the process that they are subject to appellate review even if defense counsel did not lodge an objection. The doctrine’s procedural safeguard is powerful because when it is held to apply, harmless error analysis is barred and the conviction must be reversed.

In a decision issued on June 7, 2016, the Court of Appeals had to determine whether a trial court committed such error when it accepted a jury’s guilty verdict on a charge of first-degree gang assault before the court had responded to certain notes from the jury requesting review of a court instruction and of testimony by a witness. On appeal, a divided panel of the Fourth Department found this to be a mode of proceedings error requiring reversal and a new trial. People v. Mack, 117 A.D. 3d 1450,  984 N.Y.S.2d 768 (App. Div. 4th Dep’t 2014). The People sought review by the Court of Appeals.

At issue was NY Criminal Procedure Law § 310.30’s requirement that a trial court receiving a note from a deliberating jury must provide counsel with notice of the content of the note and provide a meaningful response to the jury. Also at issue was the scope of the Court’s precedents in cases such as People v. O’Rama, 78 N.Y.2d 270, 579 N.E.2d 189, 574 N.Y.S.2d 159 (1991), in which the Court applied the mode of proceedings doctrine in the context of a court’s response or failure to respond to juror requests for further instruction.

In People v. Mack, it was undisputed that the trial court fulfilled its responsibility to inform counsel of the contents of the jury’s notes. The Court’s precedents also made clear that a court’s failure in that responsibility would constitute a mode of proceedings error. Six judges of the Court of Appeals considered that the issue presented was a new one: whether a mode of proceedings error was committed by a trial court that, although properly informing counsel of the content of jury notes, erred by not providing a response to the jury before accepting the verdict.

A 6-1 majority of the Court found against the defendant. The majority’s review of the Court’s precedents persuaded it that in the juror note context the mode of proceedings doctrine did not apply when, as in this case, defense counsel had sufficient notice, information, and opportunity to lodge an objection. In the majority’s view, the powerful force of the doctrine should not be deployed in such circumstances and where the thought of its applicability might provide perverse incentives to defense counsel to forego objecting.

Judge Rivera authored a forceful dissent. She disagreed with the majority’s statement that the issue presented was novel. In her view, a proper reading of the Court’s precedents indicated that the trial court committed a mode of proceedings error when it defaulted on its “core responsibility under CPL § 310.30” by accepting the jury’s verdict without first responding to its questions “or without alternatively asking the jurors whether they had withdrawn their requests.” With respect to the majority’s comment about perverse incentives, Judge Rivera argued that

[d]efendant’s preference or acquiescence is irrelevant because the duty [to comply with CPL § 310.30] works on the court, not the defendant.

Related Readings:

N.Y. Court of Appeals Issues Ruling on Disclosure of Jury Notes in Criminal Cases

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On June 12, 2014, the New York Court of Appeals issued a memorandum decision on the responsibilities of a trial court when a jury sends a note asking for clarification of the court’s instructions on the elements of the crimes presented for the jury’s deliberations.

The appeal arose from a case in which the prosecution charged the defendant with second-degree murder, pursuant to N.Y. Penal Law § 125.25(1), which requires proof of intent to kill.  At the close of proof in the case, the trial court, in addition to instructing the jury on the elements of this charge, granted the defense counsel’s request to instruct the jury on the lesser included offense of first degree manslaughter, in the event that the jury, pursuant to Penal Law § 125.20(1), found that the defendant’s intent was not to kill the victim but only to cause serious physical injury that unintentionally resulted in the victim’s death.

During its deliberations, the jury sent the judge the following note: “Power Point – Judges directions on Manslaughter/Murder in the Second Degree -(Intent).” The judge did not present the jury’s note to the parties (apparently receiving no request to do so), but simply informed them that the jury was requesting “the Judge’s directions on manslaughter and murder in the second degree.” Of particular importance in this case is that the judge did not inform counsel of the note’s reference to intent. When the judge called the jury to the courtroom to hear his response to the note, the judge said that he understood them to be asking merely for a read-back of the instructions on the elements of charges at issue, and the judge repeated these instructions.

The jury acquitted defendant on the murder charge but found him guilty on the manslaughter charge. In rendering this verdict, the jury had to make a crucial decision about the defendant’s intent. Their verdict implied that they found that the defendant’s intent was not to kill but to cause serious physical injury.

The Defense appealed, arguing that the trial judge erred by not informing counsel of the jury note’s reference to intent. The Court of Appeals agreed. The Court noted that Criminal Procedure Law § 310.30 requires that when the trial court receives a request from the jury “for further instruction or information with respect to the law,” the court must give notice of the content of the request to the People and the defense. The Court stated that under its precedent in People v. O’Rama, 579 N.E.2d 189 (N.Y. 1991), this notice must be “meaningful,” so that the defense is able “to evaluate the inquiry and the proper responses in light of the defendant’s interests.” Id. at 192. The O’Rama court stated that

[a] court can neither serve the goal of maximizing counsel’s participation nor satisfy the CPL 310.30 requirement that meaningful notice be given when counsel is not afforded a verbatim account of a juror’s communication and is thereby deprived of an advance opportunity to suggest a response.

Id. at 193. Following this precedent, the Court held that the trial judge’s conduct with respect to the jury note, omitting specific reference to the intent issue, failed to satisfy this obligation. Moreover, because the Court deemed this a failure of the trial court’s “core responsibilities” relating to the court’s “mode of proceedings,” the Court held that under O’Rama an objection by defense counsel was not required to preserve the issue for appeal.

The Court vacated the defendant’s manslaughter conviction, with leave to the People to resubmit that charge to a grand jury.

Judge Robert Smith concurred in the result, while stating some misgivings that excusing the preservation requirement in such a case may provide defense counsel with a tactical opportunity to avoid seeking full disclosure to counsel of the contents of a juror note in hopes of a future reversal of the conviction. He suggested that a future case might raise and brief the issue of the scope and validity of the “mode of proceedings” doctrine and afford the Court with an opportunity to reconsider and revise of this doctrine.