Jury Instruction Not Allowing Read-backs of Testimony
In Johnson v. State, 53 So. 3d 1003 (Fla. 2010), the trial court gave the jury a preemptive instruction providing that read-backs of testimony would not be permitted. 53 So. 3d at 1005.
The Third District Court of Appeal held that the trial court erred, but concluded that the error was harmless. Id.
After agreeing that this instruction was erroneous, the Court held:
"A reviewing court attempting to conduct a harmless error analysis where the trial court has given an erroneous preemptive instruction cannot know what testimony a jury would have requested to have read back or even whether a jury would have asked for a read-back at all. Therefore, a reviewing court cannot determine whether a jury was confused or needed clarification about the facts of the case, and it is impossible to discern whether the defendant was prejudiced by the error. An appellate court would be required to engage in pure speculation because if the jury followed the erroneous instruction, the jury would be misled to believe that it was not permitted to request read-backs of testimony. Because a harmless error analysis cannot be conducted when a judge preemptively instructs a jury that it cannot have any testimony read back, we hold that such error is per se reversible error." (Johnson, 53 So. 3d at 1009.)