Can Jury Read-Back Request Indicate Inability to Resolve Serious Questions ?
In United States v. Criollo, 962 F.2d 241 (2d Cir. 1992), the trial lasted only two days and involved few witnesses.
Nevertheless, the Second Circuit reasoned:
We have no way of determining whether the jury wanted to request a read-back, but was chilled from doing so by the court's prohibition against read-backs stated in the midst of defense counsel's summation.
Since this case was so short and involved only a few witnesses, we might well conjecture that any request for a read-back would not be the result of a confused jury attempting to sort through reams of evidence, but rather such a request could indicate that the jury had a genuine inability to resolve serious questions of fact. Id. at 244;
See also United States v. White, 23 F.3d 404, (4th Cir. 1994) (unpublished) (Phillips, J., specially concurring) ("There's much to be said for . . . declaring the error not subject to harmless error excuse--prejudicial per se error.
The Second Circuit recently has done just that in United States v. Criollo, 962 F.2d 241, 244 (2d Cir. 1992), for the very good reason that principled harmless error analysis is impossible, there being no way, given the prohibition, ever to know whether a jury may have felt the need for a clarification that could have avoided a prejudice now forever hidden.").