Improper handling of jury notes can lead to overturned convictions

By guest author Kelly Burke

A Georgia case was recently overturned because, during deliberations, the trial judge did not allow the jury’s note to be seen by the defense attorney. It was a case with a couple of criminal charges, and the jury’s note indicated the jury had voted: “4—not guilty based on evidence [and] 2—innocent on evidence.” The note did not indicate whether the jury was split on both counts, just the trespass count, or just the attempted theft count, but it clearly evidenced confusion as to the charges received by the jury. Did that note tell us the number of jurors voting which way, or was it in reference to the charges? Hard to know based on that note.

Kelly Burke of Burke-Lasseter, LLC
Kelly Burke

Over the years I’ve had cases with all sorts of juror questions during deliberations. Some were sound questions about the law, or a request to review the evidence, or some other valid reason. But not always. One time the jury sent out a note and asked about a law that had nothing to do with the case we had tried. The judge simply informed the jury that the court had read them the appropriate law and that they needed to continue deliberations. After their verdict, we asked them about their question. One juror simply wanted to know the answer to that question and figured since he had a judge and bunch of lawyers available, he’d ask. Seriously.

There were times that the jury would say how they were leaning, such as “We are deadlocked 10-2 in favor of guilty.” Now that pushes the prosecution to keep that jury deliberating and the defense suggests that a mistrial is in order. But sometimes the note simply said “We are deadlocked 10-2.’ Well, since they didn’t tell us which way, that left everyone to guess, which is perfectly fine. Sometimes the jury might just say ‘We are hopelessly deadlocked;” another perfectly acceptable response.

In all of the cases I mentioned above, the trial judge allowed all of the attorneys to see the note. I’m not sure I’ve ever before heard of a judge not showing a note to attorneys, but here it is. The appellate court decided, I think correctly so, that the judge should have shown the note to the defense attorney. That doesn’t mean that the judge’s decision about how to answer the question or comment was wrong, but since the judge didn’t show the note to the defense attorney, the judge didn’t have the benefit of the attorney’s opinion on how to answer the note. At the end of the day, any answer is up to the judge, but attorneys should be able to have their say about the answer. After all, that’s what attorneys do, we argue about everything. Judge’s make rulings thereafter, but the judge has to give the attorney a chance to argue their position.


Kelly Burke, former Houston DA and attorney for Burke-Lasseter, LLC on practical rules for window tinting. Kelly’s areas of practice include criminal defense, personal injury and corporate litigation. He is the founder and moderator of Houston County Carries Concealed and Georgia Carries Concealed, pro-gun organizations found on Facebook and other social media. Kelly also writes a column for the Houston Home Journal and this article was taken by permission from his archives.

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