Ark. Code Ann. § 16-89-118 (2020)
Conduct of jury
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- In the discretion of the court, the jurors may be permitted to separate or be kept together in the charge of proper officers before the case is submitted to them. The officers must be sworn to keep the jury together during the adjournment of the court and to suffer no person to speak to or communicate with them on any subject connected with the trial, nor to do so themselves.
- Whether permitted to separate or kept in the charge of officers, the jury must be admonished by the court that it is their duty not to permit anyone to speak to or communicate with them on any subject connected with the trial and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial or form or express any opinion thereon until the cause is finally submitted to them. This admonition must be given or referred to by the court at each adjournment.
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- When, in the opinion of the court, it is necessary that the jury should view the place in which the offense is charged to have been committed or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which must be shown to them by the judge or by a person appointed by the court for that purpose.
- The officers must be sworn to suffer no person to speak or communicate with the jury on any subject connected with the trial, nor do so themselves, except for the mere showing of the place to be viewed, and to return them into court without unnecessary delay or at a specified time.
History. Crim. Code, §§ 235, 243, 244; C. & M. Dig., §§ 3176, 3177, 3187, 3188; Pope's Dig., §§ 4012, 4013, 4023, 4024; A.S.A. 1947, §§ 43-2119 — 43-2122.
Case Notes
Admonition.
Where it is alleged that the jury has been exposed to improper influences, the state must show that such is not a fact, or that the exposure was of such a character that could not or did not influence them. Vaughan v. State, 57 Ark. 1, 20 S.W. 588 (1892); McFalls v. State, 66 Ark. 16, 48 S.W. 492 (1898); Payne v. State, 66 Ark. 545, 52 S.W. 276 (1899).
Failure of the court in the trial of a felony to admonish the jury before permitting them to separate is reversible error where it is not affirmatively shown that the jurors were exposed to no improper influence. Johnson v. State, 68 Ark. 401, 59 S.W. 34, 1900 Ark. LEXIS 75 (1900).
Admonition is sufficient, though addressed to the officer instead of the jury, where jurors were kept in the charge of that officer and had been properly admonished at other adjournments. Lee v. State, 78 Ark. 77, 93 S.W. 754 (1906).
Where jury was permitted to separate for five-minute recess after admonition, but before submission of case to them, no error was committed in absence of showing of undue influence during the recess or of abuse of the court's discretion. Scarber v. State, 226 Ark. 503, 291 S.W.2d 241 (1956).
In a criminal prosecution, if a separation of the jury is after an adjournment, the state has the burden of showing that no juror has been subjected to the opportunity for influence to be exerted on him; whereas, if the separation follows a recess, it is incumbent upon defendant to make a showing of such influence. Lancaster v. State, 226 Ark. 820, 294 S.W.2d 348 (1956).
Evidence sufficient to show substantial compliance with the statutory duty to admonish the jury against communications as to the subjects being tried. Payne v. State, 226 Ark. 910, 295 S.W.2d 312 (1956), rev'd, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958).
Objection to failure of a trial court to properly admonish the jurors against communications with others on any subject connected with the trial should be made at the time the objectionable instruction is given and not after the jurors have left the courtroom. Payne v. State, 226 Ark. 910, 295 S.W.2d 312 (1956), rev'd, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958).
Evidence insufficient to show that conduct of two jurors, in asking the trial judge a question during a recess, was a violation of subdivision (a)(2). Bryant v. State, 254 Ark. 447, 494 S.W.2d 126, 1973 Ark. LEXIS 1532 (1973).
Court did not abuse its discretion by refusing to poll jurors about an article published in the local newspaper that morning because they had promised to follow the judge's admonishment not to read anything in the morning paper, watch anything on television, or listen to anything on the radio concerning the case. Defense counsel concurred that the court had properly instructed the jury under this section, and the judge announced that he took the jurors at their word and would not poll them. Fields v. State, 2012 Ark. App. 269 (2012).
Separation or Sequestration.
Separation held proper. Hamilton v. State, 62 Ark. 543, 36 S.W. 1054 (1896); Borland v. State, 158 Ark. 37, 249 S.W. 591 (1923); Baxter v. State, 225 Ark. 239, 281 S.W.2d 931 (Ark. 1955); Scarber v. State, 226 Ark. 503, 291 S.W.2d 241 (1956); Payne v. State, 226 Ark. 910, 295 S.W.2d 312 (1956), rev'd, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958); Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (Ark. 1959).
Court may keep jury together until meeting of court in adjourned term. McVay v. State, 104 Ark. 629, 150 S.W. 125 (1912).
Perfect impartiality in the jury is the object of subsection (a). Capps v. State, 109 Ark. 193, 159 S.W. 193 (1913).
Denial of motion to sequester jurors held proper. Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977); Henderson v. State, 279 Ark. 414, 652 S.W.2d 26, cert. denied, Henderson v. Arkansas, 464 U.S. 1012, 104 S. Ct. 536 (1983).
—Discretion of Court.
It is within the sound discretion of the court to permit the jury to separate, either before or after the cause is submitted to them; but such discretion should be exercised with utmost caution. Johnson v. State, 32 Ark. 309 (1877).
Court did not abuse its discretion in placing nine jurymen in the charge of state police officer until other jurymen might be chosen, if the court gave the requisite instructions as to deportment of the jury, even though state police officer was not a resident of the county where the trial was being held. Walker v. State, 215 Ark. 530, 221 S.W.2d 402, 1949 Ark. LEXIS 783 (1949).
Prior to submission of case to jury, it was within court's discretion, under this section, either to permit the jury to separate after proper admonition or to be kept together in charge of officer who was properly sworn. Scarber v. State, 226 Ark. 503, 291 S.W.2d 241 (1956); Smith v. State, 227 Ark. 332, 299 S.W.2d 52 (1957).
Decision of the trial judge to allow the jury a two-day recess was within the court's discretion where, after deliberating, the jury reported it had some difficulty with the verdict, and the trial judge needed to be outside the county for two days. Harkness v. State, 271 Ark. 424, 609 S.W.2d 35 (1980).
The decision of whether or not to sequester the jury is left to the discretion of the trial court and the trial court's decision will not be disturbed in the absence of a clear showing of prejudice. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26, cert. denied, Henderson v. Arkansas, 464 U.S. 1012, 104 S. Ct. 536 (1983).
—Improper Influence.
Where the trial court orders the jury in criminal cases to be kept together and they are exposed to improper influences, the burden is upon the state to show that they were not prejudicially influenced; but where the court permits the jury to separate, the burden is upon the accused to show that the jurors were improperly influenced by the exposure. Maclin v. State, 44 Ark. 115 (1884); Reeves v. State, 84 Ark. 569, 106 S.W. 945 (1907); Armstrong v. State, 102 Ark. 356, 144 S.W. 195 (1912); Carlton v. State, 109 Ark. 516, 161 S.W. 145 (1913); Borland v. State, 158 Ark. 37, 249 S.W. 591 (1923); Wallace v. State, 180 Ark. 627, 22 S.W.2d 395 (1929); Bieard v. State, 189 Ark. 217, 72 S.W.2d 530 (1934); Newton v. State, 189 Ark. 789, 75 S.W.2d 376 (1934); Harkness v. State, 271 Ark. 424, 609 S.W.2d 35 (1980).
Evidence insufficient to show improper influence. Freels v. State, 130 Ark. 189, 196 S.W. 913 (1917).
—Objection.
An objection to the separation of the jurors must be made in the trial court to make it subject for consideration by Supreme Court. Lesieurs v. State, 170 Ark. 560, 280 S.W. 9 (1926).
In cases where the court's action in exercising its discretion as to the separation of the jury is properly brought forward in the motion for a new trial, the assignment cannot be considered on appeal, in absence of an objection in the trial court. Scarber v. State, 226 Ark. 503, 291 S.W.2d 241 (1956).
Evidence insufficient to sustain objection that the jury and officers were not properly sworn in accordance with this section. Scarber v. State, 226 Ark. 503, 291 S.W.2d 241 (1956).
Swearing Officers.
It is too late to object after verdict that the officer in charge of the jury was not sworn as directed by this section, where the defendant was present when the jury retired and did not request that the oath be administered nor object. Lee v. State, 56 Ark. 4, 19 S.W. 16 (1892); Atterberry v. State, 56 Ark. 515, 20 S.W. 411 (1892)Questioned byBaxter v. State, 225 Ark. 239, 281 S.W.2d 931 (Ark. 1955).
Where the officer in charge leaves the jury in charge of another officer not specifically sworn, the purity of the trial is thereby impeached. Sutherland v. State, 76 Ark. 487, 89 S.W. 462 (1905).
If the sheriff has previously been sworn with reference to taking charge of the jury in the case, he need not be sworn again under subdivision (b)(2). Whitley v. State, 114 Ark. 243, 169 S.W. 952 (1914).
Upon the jury being allowed to view the scene of the alleged crime, it is mandatory that the officers conducting the jury to the scene be sworn in accordance with subdivision (c)(2). Baxter v. State, 225 Ark. 239, 281 S.W.2d 931 (Ark. 1955).
It was error for the trial judge not to administer the mandatory oath to the persons he placed in charge of the sequestered jury where the defendant's attorney objected twice to the trial judge's failure to swear the officers. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985).
Even though the trial court did not fully comply with the mandates of this section when administering an oath to the officer conducting the jury view, the trial court's error did not require reversal where nothing in the record suggested that any officer or juror misconduct occurred during the jury's trip or that prejudice resulted. Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997).
While a trial court's failure to give an officer the special oath required under this section might result in some misconduct or prejudicial error, such error does not encompass a fundamental or structural right such as the right to trial by jury. Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997).
View of Crime Scene.
When a view of the locality where the crime is alleged to have been committed is ordered by the court, the defendant must be permitted to accompany the jury. Benton v. State, 30 Ark. 328 (1875).
Defendant cannot complain if he could have gone with jury for view of crime scene, but does not avail himself of the opportunity. Owen v. State, 86 Ark. 317, 111 S.W. 466 (1908).
It was not error to admit photographs of the locus in quo which correctly reproduced the scene of the alleged crime and which may have had some probative value. Zinn v. State, 135 Ark. 342, 205 S.W. 704 (1918).
Court did not err in denying request that jury view scene of alleged crime. Hogan v. State, 224 Ark. 191, 272 S.W.2d 312 (1954); Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), cert. denied, Orsini v. Arkansas, 469 U.S. 847, 105 S. Ct. 162, 83 L. Ed. 2d 98 (1984), US Supreme Court cert. denied, Orsini v. Arkansas, 523 U.S. 1099, 118 S. Ct. 1568, 140 L. Ed. 2d 801 (1998).
A request to view a place pertinent to a material fact is a matter within the trial court's discretion and that exercise of discretion is not a ground for reversal absent a showing of abuse of discretion. Lee v. State, 229 Ark. 354, 315 S.W.2d 916 (1958), cert. denied, Lee v. Arkansas, 359 U.S. 930, 79 S. Ct. 616 (1959); Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), cert. denied, Orsini v. Arkansas, 469 U.S. 847, 105 S. Ct. 162, 83 L. Ed. 2d 98 (1984), US Supreme Court cert. denied, Orsini v. Arkansas, 523 U.S. 1099, 118 S. Ct. 1568, 140 L. Ed. 2d 801 (1998).
Cited: Baxter v. State, 225 Ark. 239, 281 S.W.2d 931 (Ark. 1955); Scarber v. State, 226 Ark. 503, 291 S.W.2d 241 (1956); Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983).