Although not directly related to any codified evidence rule, it is important to be aware of three appellate court split decisions in the Third District resulting in intradistrict conflicts about the propriety of playing a video—at the request of the jury after jury deliberations had begun—in the courtroom in the presence of the jury, the judge, the attorneys, and the defendant. In each case, all those present merely viewed the requested video; and, consistent with the judges instructions, no comments were allowed. The issue in each case was rooted in the fundamental tenet that “jury deliberations shall remain private and secret,” an honored rule that “is intended to protect the jury from improper influence.” People v. Jones, 2019 IL App (3d) 160268, ¶ 23.
The first decision to address the issue was People v. Johnson, 2015 IL App (3d) 130610. Applying the principle that the appellate court reviews outside jury intrusions for prejudicial impact, the court affirmed the defendant’s conviction, holding that the record showed no evidence of prejudice. The dissenting justice contended that the procedure employed by the trial court presumptively caused a chilling effect on the jury’s deliberations.
The second split decision was People v. Hollahan, 2019 IL App (3d) 150556. In that case, authored by a justice not involved in Johnson but who was joined in concurrence by the dissenting justice in that earlier case, the appellate court majority acknowledged that, in addition to Johnson, two other appellate court districts had declined to find reversible error in similar circumstances (i.e., People v. Lewis, 2019 IL App (4th) 150637-B, ¶¶ 97-100 (no error in similar replaying of 911 tape in courtroom); People v. Rouse, 2014 IL App (1st) 121462, ¶¶ 78-79 (no error in similar courtroom view of surveillance footage)). But the court majority found structural error under the second prong of plain error analysis, holding that the procedure followed by the trial court “clearly inhibited the jurors deliberations and restrained their freedom of expression and action” (id. at ¶ 21) and “should be deemed presumptively prejudicial” (id. at ¶ 30). The dissenting justice was the author of Johnson. He invoked that decision in his dissent.
The latest split decision was People v. Jones, 2019 IL App (3d) 160268. Noting the intradistrict conflict, the author of the majority decision—who authored Johnson and dissented in Hollahan and was joined in concurrence by the justice who concurred in Johnson—followed Johnson’s reasoning by reviewing the trial court’s procedure for prejudicial impact, concluding that the “record contains no indication that the presence of the nonjurors affected the jury’s viewing of the video.” Jones, at ¶ 27. The dissenting justice, the author of Hollahan, invoked that decision in his dissent.
The takeaway from the preceding discussion: Although Hollahan is clearly a minority decision, given the root cause giving rise to all the above cited cases, judges and attorneys should avoid procedures that raise the possibility of improperly influencing deliberating jurors by intruding on their privacy and secrecy. The most desirable action is to provide sufficient means for the deliberating jury to control its own review of a video in the jury room. If, however, only the courtroom allows for such review, the trial judge should ensure that only jurors are present and that they are solely able to operate the device that allows playback.