Did the Trial Judge Commit Reversible Error by Telling the Jury That There Is Really No Provision to Have Testimony Read Back ?

In Biscardi v. State, 511 So. 2d 575 (Fla. 4th DCA 1987), the Fourth District held that a trial judge committed reversible error by telling the jury in the course of providing instructions that " 'there is really no provision' for reinstruction or to have testimony read back." 511 So. 2d at 580. The Fourth District reasoned: The judge's words may reasonably have conveyed to jurors that to ask for clarification of instructions or rereading of testimony would be futile. As a result they may have reacted as they did because they misapprehended the law or had a distorted recollection of some of the testimony. Id. at 581. In response to the State's argument that prejudice must be shown, the Fourth District disagreed, stating, "Obviously, without going into the jurors' heads or their communication with each other appellant cannot demonstrate prejudice." Id. In Huhn v. State, 511 So. 2d 583 (Fla. 4th DCA 1987), which was issued on the same day as Biscardi, the Fourth District held that the trial judge committed harmful error by indicating to the jury during instruction that it could not have instructions repeated or testimony reread. Huhn, 511 So. 2d at 591. Specifically, the trial judge stated: Also, there is really no provision for me to either reinstruct you after I instruct you or certainly to have any testimony read back or certainly to call any witnesses back. You are going to have to remember the testimony and the instructions on the law as best you can and probably the next time we hear from you will be when that buzzer in there rings and we all jump about a foot up in the air and then, you have a verdict. Id. The Fourth District reasoned that these remarks led at least some of the jurors to understand that they were prohibited from asking for further instruction or for a read-back. Id. It concluded: "Perhaps jurors would have . . . sought to have certain testimony read to them if they had thought it possible. In our view, the error was harmful." Id. In Rigdon v. State, 621 So. 2d 475 (Fla. 4th DCA 1993) the Fourth District again stated that it was reversible error "for the trial court to instruct the jury that any request to have testimony read back would be refused." 621 So. 2d at 479. It reasoned: While the instruction given contains indications that there remained a possibility of having testimony read back, it nevertheless resembles the instruction condemned in Biscardi and Huhn because the trial judge's comments may reasonably have conveyed to the jurors that to ask for rereading of testimony would be futile or was prohibited. This was reversible error. Id. at 480.