Get Full Government Meeting Transcripts, Videos, & Alerts Forever!
Get email alerts on the Trial‑procedure topic
No spam. Unsubscribe anytime.
Defense says judge’s private response to juror questions may have denied Smith opportunity to make a record
Summary
During oral argument in State v. Andrew John Smith, counsel disputed the district court’s handling of two juror questions—specifically that the judge instructed the bailiff to tell jurors he could not answer without first consulting counsel, then told counsel after the fact—raising plain‑error and right‑to‑presence issues on appeal.
At oral argument in State of Montana v. Andrew John Smith, appellate counsel urged the Montana Supreme Court to find reversible error in the district court’s handling of two juror questions during trial, arguing the court answered without first consulting the parties or placing the judge’s response on the record.
The dispute centers on two notes the jurors sent the judge during trial. Colin Stevens, representing Smith, told the justices the judge told the bailiff to tell jurors “he could not answer their questions” but did not place the judge’s response on the record or consult counsel beforehand. Stevens argued that, given the small‑town setting and the limited record, the absence of a contemporaneous on‑the‑record response leaves uncertainty and may require plain‑error review.
Roy Brown, for the State, told the court the judge acted to protect the trial record and that the questions were handled appropriately. Brown said the first juror question was about the gun and the following testimony addressed that subject; the judge’s handling prevented overemphasis of any one piece of evidence, Brown argued. The state urged that the defense failed to preserve the issue at trial and that a plain‑error standard would be inappropriate.
Justices probed both sides on whether jurors were deliberating when they submitted the notes and on the proper standard for appellate review. Justice Laurie MacKinnon and others asked if counsel had an obligation at trial to create a record, noting the trial was still in progress when at least one question was posed. Stevens acknowledged trial counsel did not make a contemporaneous record but argued that the unique facts — including the possibility the bailiff relayed the judge’s response outside the courtroom to jurors — create uncertainty about prejudice that can only be remedied on direct appeal.
The court took the issue under advisement; it did not issue a ruling at argument.
Clarifying points in the record: the juror notes occurred during trial (the transcript records two juror notes and the judge’s direction to the bailiff), and counsel debated whether the notes were asked before or after the jury had been instructed not to discuss the case and whether that timing affects the plain‑error analysis.
