During deliberations, if jurors disagree about testimony or ask for information on the law, Penal Code section 1138 directs the court to bring them back and provide the requested information in the presence of, or after notice to, the prosecutor and defendant or counsel. California Supreme Court decisions treat a genuine request to rehear testimony as one the court must address. The judge controls the scope of the response and the testimony read back; the request itself does not require a mistrial or guarantee reversal. (Penal Code § 1138; People v. Lucas; People v. Hillhouse)
Start with the exact jury request
The wording of the jury’s note matters. Preserve the note, the court’s proposed answer, counsel’s positions, the reporter pages selected, the actual readback or legal response, and any follow-up question. A request for a particular answer or passage may raise a different issue from a request to rehear all of one witness’s testimony.
For testimony, the court may provide context beyond the literal fragment requested when needed to respond fairly. Counsel can identify whether surrounding testimony or cross-examination is needed so jurors are not left with a materially incomplete excerpt. The judge remains responsible for addressing the actual request, and a dispute about the scope should be made clear in the record. (People v. Hillhouse; People v. Lucas)
A readback and a legal answer are different
Section 1138 also covers a jury asking about the law. The court must respond in the presence of, or after notice to, the parties. Counsel can request clarification or object if a proposed legal answer is inaccurate, incomplete, or likely to confuse jurors. The court should answer the actual question without replacing the evidence or giving jurors unadmitted material. (Penal Code § 1138)
A judge does not necessarily have to be physically present for every testimony rereading. Under Penal Code section 1138.5, absent good cause, the judge may choose not to attend a rereading of testimony already received in evidence. That limited provision concerns the judge’s presence during the readback; it does not erase section 1138’s requirements for notice and a response to a jury request. (Penal Code § 1138; Penal Code § 1138.5)
If the response is disputed, preserve what the jury requested, what it heard, the parties’ objections or agreement, and any court ruling. Whether an error occurred and whether it affected the verdict depend on the full record; an imperfect response does not automatically mean a new trial or reversal. Do not communicate with deliberating jurors or attempt to influence their request.
The Law Offices of David S. Chesley represents people facing California criminal charges. Call (800) 755-5174 to discuss a trial record and jury request.