Monday, December 20, 2010

U.S. v. Newhoff, No. 09-30143 (12-16-10) (Kleinfeld with Tallman and Settle). The jury wants testimony read back. What's a court to do? Well, if the court decides to read back testimony, which is in its discretion, it had better admonish, admonish, and admonish the jury. And that admonishment should stress that all read backs can distort; that all the testimony will be read; that the transcript is not evidence; that the transcript does not reflect tone or demeanor; and that it should not be viewed in isolation. The read-back should be in open court, and the court should read. In this case, which concerned a prohibited felon with conflicting trial testimony as to whether he knew the gun was in a backpack, the jury asked for the officer's testimony to be read back. The court did, in open court, with counsel, but neglected to give an admonishment, all though he said he would. The 9th concludes he forgot, as did counsel (for which counsel was chided). The error was plain. See U.S. v. Richard, 504 F.3d 1109 (9th Cir. 2007). However, although accounts differed, and the verdict was renderd nine minutes after the read back, the error was harmless. The 9th also found that the sentence was reasonable and there was no error in the guidelines determination as to the gun being stolen, connected to a burglary, and that the defendant had escaped from jail while awaiting sentencing in this case.


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