Trial: Readback of Testimony

Frasilus v. State, ___ So. 3d ___, 35 Fla. L. Weekly D2042 (Fla. 5th DCA 9/10/10)

During its deliberations, the jury asked the trial court when the defendant’s driver license photograph was taken.  This question was relevant because the perpetrator had dreadlocks, and the defendant was bald in his driver license photograph.  The trial judge instructed the jury to rely on its best recollection of the evidence.  The appellate court rejected the defendant’s argument that “the trial court committed fundamental error by failing to inform the jury that it was entitled to a read-back of portions of the testimony.”  “We do not think it is either necessary or desirable to impose a requirement on the trial court to inform the jury of its right to request a read-back in response to any question from the jury concerning an issue of fact that may have been the subject of testimony somewhere during the course of trial.  Nor would such a requirement take into account that a defendant’s failure to request a read-back in such a circumstance might well be strategic.  Because a trial court is not required to accede to a jury’s request for a read-back of evidence it has already heard, it is difficult to imagine circumstances under which a trial court’s failure to advise the jury of its right to request a read-back would vitiate the fairness of the entire trial.”