Andrews v. O'Hearn
In Andrews v. O'Hearn, 387 N.W.2d 716 (N.D. 1986), the jury foreman during deliberations requested a dictionary be provided to the jury. The bailiff told the foreman the request would have to be given to the judge in writing and the attorneys would be brought in.
The foreman then told the bailiff to "forget about it." The bailiff told the judge about the incident, and at the end of that day's deliberations, the judge instructed the jurors not to use any extraneous evidence, including dictionaries or encyclopedias, when they went home.
The Court concluded the instruction was merely a recitation of a prior instruction and administrative in nature, and that the failure to follow N.D.C.C. 28-14-19 was harmless. Andrews, at 725-26.
In Andrews, the Court acknowledged two circumstances where communications between the judge and the jury that do not follow the procedure in section 28-14-19, N.D.C.C., are harmless error. When the trial court merely reiterates a proper instruction, or gives an instruction administrative in nature, the prevailing party may overcome the presumption of harm that attaches to ex parte communications. 387 N.W.2d at 725.