Trial exhibits and jury instructions may be taken by jurors into the jury room during their deliberations.26 Jurors, however, may not bring into the jury room any outside materials pertinent to the issues at trial, as this violates the obligation of the jurors to decide the case based solely on the evidence presented at trial.26.1 It is within the discretion of the court whether to permit the jurors to bring any notes they have taken during the trial into the jury room.27
In criminal cases, written or tape or video-recorded prior statements offered as affirmative evidence should not be admitted into evidence as separate trial exhibits that go with the jury into the jury room. However, the trial judge has discretion to depart from this default rule when in his judgment the situation so warrants (e.g., where the jury asks to rehear such a statement during its deliberations or where the parties do not object to having the written or recorded statements go into the jury room as exhibits).27.1
In the event of a request by jurors to rehear certain testimony, whether or not to grant such a request in the form of a trial transcript is within the discretion of the trial judge, and the judge may elect to instruct the jurors that they must rely solely on their recollections.27.2
26. See Riley v. State, 585 A.2d 719, 735 (Del. 1990), cert. denied, 501 U.S. 1223 (1991); Dawson v. State, 581 A.2d 1078, 1106 n.31 (Del. 1990), vacated on other grounds, remanded, 503 U.S. 159 (1992); Lane v. State, 222 A.2d 263, 265-66 (Del. 1966).
26.1. Yarusso v. International Sports Marketing, Inc., C.A. No. 93C-10-132 SCD, slip op. at 25-26, Del Pesco, J. (Del. Super. Apr. 1, 1999).
27. State v. Bug Out Exterminating Co. of Delaware, Inc., C. A. Nos. 79-01-1267, 1189-1196, slip op. at 5, Christie, J. (Del. Super. Dec. 13, 1979).
27.1. Waterman v. State, 956 A.2d 1261, 1264-65 (Del. 2008); Jones v. State, 940 A.2d 1, 13-14 (Del. 2007); Page v. State, 934 A.2d 891, 901 (Del. 2007).
27.2. Watson v. State, No. 405, 1996, slip op. at 3, Hartnett, V.C. (Del. Apr. 2, 1997) (ORDER), disposition reported at 693 A.2d 1083 (Del. 1997) (TABLE); Harrigan v. State, No. 188, 1996, slip op. at 6, Walsh, J. (Del. Jan. 29, 1997) (ORDER), disposition reported at 692 A.2d 412 (Del. 1997) (TABLE).
© 2010 David L. Finger