public this case presents the question whether a district court has inherent authority under article three of the constitution to recall discharge jurors for further service in the same case here for the purpose of deliberating anew and reaching an entirely different for it the answer to that question is no established through a common law forbade the recall of destroyed jurors in numerous respects the federal rules of procedure reflect the understanding that it just authority ends at the point of discharge i thought you had a clear bright line rule until i got the page nine of your reply brief where you say the jury may remain effectively discharged despite a judge's pronouncement discharge there are cases where you've agreed that if the judge says you're discharged they're not really discharged and the judge can say oh come on back i've got something else you've got to do this where the judge says you're discharged but you would allow them to come back and that is simply mr chief justice because we believe the discharge is an app it's not just a pronouncement and that's what the vast majority of the lower courts have said they've said that a jury is just charge when having been released from service the jurors have left the judge's presence in control ok presence and control no that's the that's the key distinction that you have that is where the records are said and we're certainly comfortable with that distinction insurers are still if they're still in the court room you can say well wait wait hold up you've got to come back and do this yes that is correct and that is basically the line they want to turn over the hall outside the courtroom but also happened they're all still there the how is outside the judge's presence in control and the only cases where jurors have been permitted to be recalled outside the courtroom under the standard are cases where the jurors say have gone back to the jury room and i think it's fair to say under those circumstances that the jurors are no longer are still within the judge presence and control certainly we don't think that that definition could be stretched to facts like this case where the jurors have not only with the courtroom but at least two of the jurors have left the immediate vicinity of the courtroom and it appears from the record as if one of the jurors has left the courthouse altogether and they're going to is worried about when we worried about with the rule about discharge and then bringing them back is that the jurors may have talked to somebody about the case heard something about it  information that's going to be prejudicial to the defendant that they shouldn't have got why doesn't it make sense to say well if they're right out in the hall or down the hall bring them back here and has just as the judge here  talked to anybody about the case mr chief justice i think that the courts that have adopted that functional definition of discharge that have looked at discharge as the point at which jurors have separated or dispersed have focused on the potential for influence not the fact of influence in other words those current courts aren't applying are engaging in a prejudice in korea under the guise of death defining this charge instead what they are saying is in essence the point at which the jurors are no longer together as a unit and again no longer within the courts instruction and direction is the point at which they've been discharged and i think that that has proven in the case law to be a relatively easy one to apply and many of the cases on which respondent are wives are cases in that category in other words cases where courts at the same time as they have recognized the common mob rule have applied this functional definition of discharge now again we think that this case plainly does not follow even within that somewhat broader definition and the issue of whether the jury has been discharged in this case is obviously not in dispute before this court but i do think that in practice if this court were to adhere to the common law rule that definition would be pretty easy to apply in practice and there aren't a lot of our court decisions that seem to have struggled with the application of that principle and once you take those i was just to say that once you take those cases a respond it really does not have very much by way of common law authority on which to ras and mike are you confirming that you're not raising a constitutional barrier to the recall of juries yes i think we have consistently made the point all along that this issue obviously implicates the underlying right to a fair trial and the rule that we're articulating is certainly protective of that interest but all right anyway but not directly yes that is so why is it that we would make an absolute rule barring the recall of the jury except in the circumstance you're conceding why don't we go back to what the chief justice said why are we looking for more specific prejudice justice sotomayor that is for the simple reason that we believe that this is really a question about the district court's authority and in analyzing whether a disrobed there's no sta or well that is correct and there is no explicit bar in the rules but when you are considering whether a court has inherent authority under article three of the constitution the three considerations on which this court has relied are first the history and we believe that far from there being a long history in respondents favor that history really points decisively in our direction the federal rules and while it is true that the federal rules do not explicitly prohibit jury recall after discharge time and again the federal rules indicate that a court's authority is limited at the point of discharge and that a court's authority after discharge is constrained in various respects and critically the federal rules also provide specific and conceivably adequate remedies for the defect at issue here and invalid or ambiguous for it well we don't have a specific rule that permits district courts to rescind any order they fish but we reach through history committed to strict courts when they think they ventured into rania's order to just rescind it why isn't this one of those orders district courts have authority to be sure to rescind certain types of orders in our reply brief i think that courts have said that those orders are essentially like the order at issue here final in the relevant sense in other words the district court's authority is at an end when a district court transfers the case to another district when a judge recused himself or herself when a district court enters final judgment over a part of a case under rule fifty four b submission is a quite straightforward one it is that the act of discharge denotes the point at which a district court's authority over the jury is at an end and the jury's authority over the case is n n n and to finish my answer to just a sort of my or about the federal rules i think it is critically important here for purposes of analyzing whether there is inherent authority that there are specific inconceivably adequate remedies for correcting an invalid or ambiguous verdict both before discharge and after discharge so first before discharge we certainly can see that before the jury is discharge the district court has the authority to recall the jury and it's not even recalling the jury it simply reince trucking the jury and ordering the jury t engage in further deliberations that conspicuously did not take place here notwithstanding the fact that both the district court and respondents counsel acknowledged that a verdict of zero dollars would be invalid after discharge there actually is the first is the remedy of a new trial and we certainly think that that has wong been the remedy for the hyper defect at issue here a verdict that is contrary to the weight of the evidence and indeed not only country of the weight of the evidence but contrary to any of the other remedy which i do want to focus the court's attention on is the remedy that is provided in civil rule sixty and that is the remedy that enables a district court to essentially conduct a streamlined proceeding to correct clerical errors and oversights and omissions in a judgment and so in the other major category of cases on which respondent allies those are cases in which there were simply this takes in the original verdict cases where  could they judged amend the judgment or state in the judgment that ten thousand dollars be awarded no for the simple reason that i don't think you would know what a correctly instructed jury would have done in this circumstance and indeed in this case the further complication was that the jury was required not only to award the ten thousand dollars and stipulated damages for past medical expenses but also to award some amount for future says no that's a three is twenty three thousand we can a judge to stop the jury and say well here what is it is twenty eight or twenty three the proper remedy in that circumstance mr chief justice would be the one that i've just suggested namely a proceeding under rule sixty a of the civil rules and in eight of that proceeding a judge has the ability to call back the jurors but not as a juror that's the critical point if you call back the jurors essentially as witnesses and the judge could subpoena the jurors if necessary and take affidavits oral testimony from the jurors to correct the verdict and again i think that that's an answer to the other significant category of cases that respondent relies on those are cases where you have these various types of clerical errors or mistakes or verdict being recorded that's different from the verdict that was actually orally delivered in court and all of those cases under our interpretation are readily correctable under rule sixty a and what does not need to be a particularly complex procedure but i think it is in a certain sense i don't know if it is certainly not a clerical error but it is a simple error and the point is the judge told the jury you have to award this amount in medical expenses and the jury didn't why doesn't that fall under a different category than the you know questions of certainly guilt or liability or no liability so mr chief justice i think it's certainly fair to say that the error in this case was an obvious one indeed it was so obvious that less than an hour earlier when the jury issued a note asking about whether the damages had already been paid again both the district court and respondents counsel acknowledged that if this was heading in the direction of his zero dollars verdict that verdict would be invalid but i think it's critically important to realize that we're not dealing with a case here where the verdict is somehow officially invalid i mean if you look at the verdict form which is at age twenty two a of the petition appendix the four corners of that verdict form or find a verdict simply says we're finding in favor of petitioner but we're awarding zero dollars this is a case that falls into the conflict category of cases where the verdict is contrary to the weight of the evidence and again the remedy for that both under the federal rule you mean with respect to the amount they were they were obligated to award a well that is correct well with regard to the award more generally in other words they could not have awarded zero dollars as a matter of law by virtue of respondents to appeal ation if you know you sense the only sense in which it was contrary to the evidence was that they didn't ward the ten thousand been and new trial so in other words rule fifty nine b is not some new fangled invention if you go back and look at the cases prohibiting the recall of discharge curves going all the way back to live days case the case that we cite from the from sixteen zero eight those cases say that the remedy in these circumstances is a neutral when i ask you about the basis for the legal will you're asking us to adopt it once is just assume for the sake of argument that there isn't  any federal role that sheds very much light directly on this question so then your argument seems to come down to two points one is that there is nothing that give where maybe you can by implication gives the trial judge the power to do this but trial judges do hundreds of things that are not expressly authorized by rule so  what we certainly couldn't adopt that will a federal judge trial just can't do anything unless there's a rule that says the judge can't you can do it trials will come to an end the other is they stomach common law but they were all sorts of common law procedures and procedures that continued into the nineteenth century that have been abandoned in modern practice so you want to say that if there was a and the stablished practiced that common law into the maybe the late nineteenth century tribe judges today in the federal courts must follow that rule unless there is something that gives them a dispensation so just as a leader we're certainly not here arguing that there has to be an express grant of authority in the federal rules and it certainly is true that federal courts have broad authority to structure their proceedings as they see fit while the cases pending and i think if you identified various specific procedures you would find that they would comfortably meet the standard for inherent authority so to take the government's seemingly favorite example in limon a rulings by district courts district courts obviously have the inherent authority and indeed press authority to make evidentiary rulings and the question of the timing of those is simply incident to the exercise of that authority our point is simply that to the extent that a court has that broader authority it has never been understood to confer this specific authority to recall sure and to get back to the federal rules because i really don't think that this is a case where the federal rules are silent on the issue well before you do that what rule should we adopt with respect to common law practices come on trial pr sequester the jury but this record is not down to adhere to that practice simply because that was the practice and seventeen eighty nine argument is simply that you have to look under this court's decisions on inher authority to the history and in the absence of a long history you should not be recognizing an inherent authority at least absent some necessity and that's really what this case boils down to respondent in the government's argument at the end of the day turns entirely on considerations of efficiency it turns on the argument that it's going to be more efficient in at least some of these cases to recall the jury rather than to conduct and when the house to be absolutely necessary what what should the what should the the trial judge and at one point jurors were in the lab to eat during deliberations what did the first trial judge who said it might be a good idea to allow them to have lunch and what was that absolutely necessary what they describe particularly has the authority to permit the jury to eat that this and this just sort of goes back to the question of you know what is the affirmative source of the authority here and court has never in its inherent authority cases has responded freely concede to page thirty nine of his brief said that efficiency alone is a sufficient justification for the exercise of inherent authority and again this is where the federal why not why not w of money and that's the only difference why don't we say efficiency arguments what counts it matters to people means whether they can get their case is resolved or not so justice prior in analyzing questions of inherent authority this court has never engaged in policy balancing it is focused on three considerations it's focused on history the rules and on necessity and the availability you never have a look at up why don't we begin well if this court wishes to engage in policy balancing know we don't have any word saves people a lot of money this particular well i exercise and there isn't really much reason in terms of fairness to do it and i'm not sure that that is always going to be true i think that respondent and the government in their briefs try to sort of set up this dichotomy between technical defects in the verdict on the one hand and burdensome new trials on the other with regard to technical defects in the verdict truly technical the facts those can be corrected short of a new trial under rule six and recall of the jurors is going to be burdensome in cases such as this one where the jury is being asked not simply to correct a technical defect but to deliberate a new and to reach an entirely different verdict and i would respectfully submit that of all of the cases and respondent and the government's briefs they will be hard pressed to identify any case that actually fits that pattern where a district court is being told it just requires telling a jury to go back and reach an entirely different sort but with regard to the policy considerations i do think that there are policy considerations that strongly support the bright line rule that we are advocating as we point out in our brief fairness and finality considerations point strongly in our direction and while it is certainly true that district courts are able to engage in prejudice inquiries we think the risk of prejudice is particularly great in this context and at least government seems to recognize as much when the government attempts to cabin its rule under the guise of the abuse of discretion standard in various respects and i'll come back to the defects with that proposed rule in a minute but the only other thing that i would say with regard to policy balancing is that i think there's a very strong workability argument in support of our position if you accept what i understand the respondent position in other words to confer on this record it's essentially an unbounded power to recall destroy jurors subject only to the constraints of the out of bounds of due process courts and whether accounts are going to have a very strong incentive to pursue this option to crack all sorts of areas and i think this case actually illustrates the problem there's a lot of back and forth in the briefs about who should have raised this issue before the district court before discharge well in a case like this one my co counsel mr angel would have had no incentive to raise this issue before discharge for the simple reason that the jury was last seen returning a verdict that not only did not word the minimum about it awarded nothing at all to our shared client by contrast in cases such as this one party is like respondent upon recognizing that there is an obvious error with the verdict i'm going to have every incentive to pursue we calling the jury as an alternative to a new trial because after all for the same reasons that my co counsel probably didn't like this story very much mr kat goes co counsel presumably thought this story was the best  and yet when it does come up we have this concern justice prior pointed out that it's a big waste of money have the jury have to stop and i'm gay so a new jury right have to be a new jury start all over again but i think mr chief justice if that counts in our favor i think we will freely acknowledge that this issue doesn't come up all that often though it does seem to come up with some frequency in the state courts and there are a number of cases cited in the briefs going back all the way to the early days of the republic but i think what i would say is that to the extent that the court thinks this isn't a problem that comes up for a often it indicates to us that it is simply not worth the candle to adopt either respondent approach which would really create a motion to recall the jury as an alternative to the remedy that's actually provided in the rules a motion for a new trial or the government's approach this sort of presumptive one hour when we simply don't think that there is any need for this court to move the line from the point of discharge to the point of discharge plus one hour and what other whatever other limitations the government wants to impose under the abuse of discretion standard particularly because a court will have the ability to correct obvious defects before discharge and if this court adopts our rule it will if anything create incentives for courts and litigants going forward to pause for a moment at the point at which the jury's verdict is returned and publish before discharge to determine whether there is an obvious error that can be correct corrected consistent with the court's power to do so prior to discharge and we freely acknowledge that if a court wants to for instance take a short recess at that point you can do so and to the extent that the specter is given a lab or a new trials in complex cases where the trials have been particularly when fate i would respectfully submit that it is it precisely in those cases where courts and let against other have the incentive to do that and the last thing i would say before reserving the balance of my time for a battle to get back to justice alito is question is that with regard to the federal rules we're not just going to the specific rules like rule forty eight well fifty one the rules on hoeing and the rules on instructing juries were pointing as well to rule fifty nine eighty two which is the rule that says that in non jury trials a court has the authority upon receiving a motion for a new trial to conduct further proceedings to take evidence to reach a different judgment but conspicuously does not confer any such power in jury trials and that the us while not an express prohibition on the recall destroyed jurors is the next best thing i would respectfully reserve the balance of my time thank you counsel may please the court is the chief justice and justice prior vindicated under petitioners rule a trial lasting a week a month a year would have to be entirely redone just because one juror took one step outside one court room one minute after a verdict petitioner says that a new trial is required not because of anything in the constitution or just sought to make work actual prejudiced but because of inferences that he draws from the show my problem is i have problems with his rules i have problems with yours so you've got it and i think it's some of what the government does say putting aside the question here which troubles me expressing either their pleasure or displeasure at what a jury did not uncommon for court correctional officers in the state of new york to get very close to juries when they used to sequester them but even today and a corrections officer saying something like good job guys at the end of the bricked ok when the juries discharge there is expressions in the court room if we do a prejudiced test how are we going to ensure that the concept of a fair trial is wholesome  admit what i consider some could be potentially great contamination of the jury and of their emotional state they are juries all of the time who have the night to think about different word recess instead of discharge we are not here defending this all the time so the courthouse and most courthouses certainly the federal system and a lot of state systems the jury doesn't get to go out and mix with the public quite quite quite right you're out of it at all i'm saying is whatever the rules are for pretty discharge those rules are just parallel after discharge so long as you have like here a discharge of a couple of minutes where there is no prejudice to the other side and i think courts are well three hours later reem panels the jury is that proper well i think in that circumstance again it's you know the discharge has nothing to do with it it's either proper or not impairment right and so i don't think that you know we have a position on impaired mentor rather is tempered by the constitution and by this court's inherent power cases would say it's got to be a reasonable exercise so the answer to that is it's a double jeopardy violation it's a double jeopardy violation of the discharge has nothing to do with that and if i could go back and that we do make very clear that tempered by the inherent power limitations of this court which are very streamlined so i don't think that work here are saying that you can undo anything we're saying it's got to meet the deacon in chambers test the chamber's test page forty nine fifty of the opinion which says that it's got to be actually gentle bit response and i think this shanahan's absolutely wrong when he says well if there's an alternative that means there is no inherent power chambers on those two pages is absolutely clear clear the existence of an alternative doesn't predict five inherent power now or concern about their will and again going back to the first questions the chief asked it's not even clear what their rule is because for most of this case before the entire the boiling same rule which is you can even after discharge even the next day have the jury come back and we order and impose an additional hurting so i'm not to show i'm not sure you're the one that should be complaining about a rule that's not very clear i mean you is basically you look at all the circumstances have the judge asked the questions and particularly the very end on what i asked earlier particular if this doesn't come up very often seems to me to be make some sense to say rule you don't want to waste court's time you know figuring out whether there's adequate prejudice how far is too far let's just have a clear wall the judge says discharge your discharge and if he's made some mistake you know he'll be more careful in the future this is a solution in search of a problem that doesn't come up very much it's never come up all his ways in the federal system even once he can cite you two cases in his reply brief saying there's any problem one is a california case that he cites and he tells you that there's been a discharge of five months in a recall he doesn't tell you that that case was reversed by the california supreme court for exactly the concerns we're talking about which is what the danger unsettles action to i mean look at the t circumstances is a great test but it doesn't give much guidance to courts will though tell me what the guidance is that we give i'm thinking of something like if they've been exposed to any extraneous low found for example in the ninth circuit's decision below which says that it's got to be a short recall there's got to be an inquiry into whether or not there is contamination and if there is any contamination absolute then sure it is sure well i think again that should be left to the district court's decision discretion for the following recent cases vary in all sorts of ways sideways sometimes the trial last a year year and a half just so to my or and roussel i think your trial was one and a half months and you want to necessarily throw something out for quite the same length of time and in some cases the jury has just asked a very simple question that they have to answer and so it might be something that could be more than a couple of minutes so i  preferable but i do think you know questioning depending on the circumstances of the case may be appropriate for something like this in which is just a couple of minutes and there's no allegation whatsoever of any actual prejudice that anyone talked to anyone besides the clerk of the court you know i think that that's perfectly appropriate but in a different case absolutely i'd be different because you i wonder whether there's one difference between the post discharge case and the three discharge case you've been talking a lot about contamination and outside influence and there it seems as though the inquiry is roughly the same but there's another way in which the post discharge case seems different which is that once you know i discharge you just take off your juror hat psychologically mentally and you start thinking about a case in a different way and you start even wondering whether when you had your juror had on you were thinking about it in the right way and i wonder whether that is a difference that makes a difference in this context we can certainly see a federal court particularly if the length of discharges is lengthy getting into that and saying that's why we're not going to have a recall but you know there's no federal court ever has adopted the version of  adopted that argument or mr shanmugam so argument and said the courts last forty for that reason that maybe the rules committee at some point wants to get into that and say we're really concerned about people taking their house off in the psychological difference but that is not something which is state board so tell me how we do in a way that because this is what i mentioned before how many jurors change their mind we want to respect the state courts i think it raises i understand the new position now nothing th eleven do not and yes it's true in the old common law we had a different difference in burial times for the starting eighteen thirty nine courts have permitted recall in the federal system is permitted because in answer to my question i was not looking so much for a historical answer you both have your historical arguments that for an answer about why we shouldn't take this very seriously and think that it makes the post discharge context different from the pre charge discharge with the the inquiry that we do in the free just charge contacts that have you talked to anybody have you read a newspaper just really doesn't get to the heart of the matter in the post discharge context which is that you've just taken off your juror clothes and maybe started thinking about what you did when they were on in an entirely different way this is kagan i do think that you should take it serious i think district court to do that all the time which is why recalls don't happen except in circumstances like this and why you can't point to any abuse i caution the court because of this cycle if the court is animated by the psychological concern about adopting some one size fits all solution for the entire country and on doing trials that sometimes are lengthy  sometimes impose huge psychological cost to those who testify before them for example the first time was before you this here in kansas versus current the court was very concerned about the wichita murders and the witnesses having to retest a five but that's his rule he's going to force redo answer i think that would be the class horrible thing to do but wait the beginning response of justice kennedy would were happening in this case like this is their undoing their earlier pronouncement of discharge we're turning it to the status quo ante and then you have that swearing again that you have effectively that first swearing working out and here as this case comes to the court there's no allegation whatsoever that there was any prejudice to mr gates for on the recall again you would by the same rule in the criminal case i think and i think out that does happen in the double jeopardy context with respect to mistaken pronouncements and this court has already said that's not a problem now if it does it's kennedy or the jurors have been destruction in that case yes that's right so just kind of if you're concerned about that i suspect that could be something that is determination just request of terminations as to what is and is not a reasonable response to the problem at hand and there's no example whatsoever of anything like this hypothetical happening and that's why as the court wri reason that it doesn't come up very often together no federal cases at all so the federal rules committee probably has bigger fish to fry how long was the trial in this case this trial was two days and and attention of the rules committee and my friends idea which is somehow the rules committee has already result this issue i think is in tension with that very very notion there are no further questions thank you counsel bash was the chief justice and may please the court i'd like to begin by stating very simply what we think the rule is and in doing so hopefully clarify something about this case that i think generates a little bit of confusion the rule we would apply is that if this is a situation where before the discharge the judge could have sent it back to the jury with a clarifying structure then the mere form a pronouncement of discharge does not warrant the judge from doing that in a situation where no actual prejudice would result the reason i said that i think that relates to an area demonstrated that the jurors were confused about the instructions and petitioner has not contested as this case comes to the court that the judge could have sent it back to the jury before discharge i'm not sure that's true if the judge says well i think it's against the weight of the evidence that w criminal case in which a jury there was an attempted gripe with your an f b i investigation of that your for the attempted bribe and so the jury had a huge incentive to acquit at that point because you can go right by the defendant to accuse me to convict because he's been bribed by the defendant to a t the f b i knows he's been bribed and what this court said in grammar is it is an actual prejudice determination after hearing and it's within the discretion of the dish to cork subject to abuse of discretion review how to remedy even that kind of problem and that's a very significant problem and it's the same thing when for example a judge for gets made trial to admonish the jurors to avoid outside influence which is parallel to the situation here with one caveat which relates to justice take its question earlier in that the jurors are exposed to outside influences without  reasonable to think that at some point postmistress kind of like getting out of the bar exam where you study all the stuff you remember right but now the commercial paper information is you know receding from your brain in a way that it wasn't before the bar exam but i don't think that and i think a district court  properly take that into consideration but i don't think that's true a few minutes after the destruction it's one thing to say when you get home you go back to your spouse or your friends you say this is what we did they say well i can't believe you did that that's going to cause you to start to reconsider your verdict as a citizen not with the jury head on but here it was a few minutes everybody concedes was a few minutes at the time petitioners counseling the son twenty seven apep said we don't think the jurors talk to anybody about the case they were talking about other stuff that reimbursement didn't talk to anybody about the case it was a few minutes and given the way jurors attempted bribe or juror sleep through trial were jurors are actually exposed to extraneous information we're just speak to count so we always conduct a prejudice in korea it would be entirely a shattering case why can't we call them back the next day the day after just pass of that you talk to anybody they say you know when you go back and recent the case that petitioner had we don't think that would be possible why did we go in with because of that because of the pressure standard we think what they say interview that you haven't shown any prejudice they didn't talk with anybody about the case they didn't i think it would be reasonable for it so i guess we're in a situation where six months later some this court to say it's a matter of giving guidance to lower courts that once jurors have returned to their daily lives they probably spoken to friends and family about the case they've taken off their tour hats for more than a very diminished period it's so likely that there's going to be prejudice that we're just not going to allow that anymore i also say there's a more formal limitation which this court has said in cases like casey and quackenbush that once final judgment is entered a court can't rescind interlocutory orders i think it would be a question about when that occurs in this case we don't think it would ever get that far into the prejudiced standard but it might just be when the rule fifty eight judgement is entered which in this case happened the same day as the second predict in a case i did last year it happened five days later it often happens very soon or you might say that once the notice of appeal is filed or once the time has expired for filing for the motions that's when the final judgment occurs so there'd be that were former bound on the time limit but i think in practice there would be an actual prejudice limit that would found it very tightly i don't want to emphasise this cases come up this issue has come up for the united states it's come up in actually surprising number of lower court cases and if you look at the cases cited in both parties briefs there are almost invariably there are short periods i mean this is a judge what you do over after a few minutes where you made a mistake this is not people calling things possession count to try and it was only a few minutes and the judge brought them back and they were we instructed there was evidence presented on that count and and then they deliberated further so it does happen it's it's rare hopefully because it's a mistake but it's not so rare that i rule that we are proposing to the court is a simple one it is that consistent with the common law and the federal rules the district court lacks the authority to recall distributors for further service and the same case with discharge being defined as the point at which a jury released from service leaves the judge's presence and control and writing an opinion in that direction we would respectfully submit that the court should reiterate the district courts have multiple available remedies to cure the perceived problem here again we do freely concede as mr calculates out that a district court has the authority to re instruct the jury and to order the jury to engage in further deliberations prior to discharge and that will take care of many of the cases in the category of obvious errors after discharge it is true that a court has the authority to recall jurors but not for the purpose of reconstituting them as a jury instead simply for the purpose of correcting clerical errors and other oversight are these cases like the ones i referred to in my opening argument where you know a jury returns true verdict forms and the question is which verdict form is the correct one in other words courts have the authority to deal with situations where what you're trying to do is to into it the jury's intent at the time of the original verdict to take evidence on historical facts concerning what the jury actually did and the relevant federal rule of evidence federal rule of evidence six zero six p makes clear that that is an exception to the ordinarily applicable rule that evidence from jury deliberations is inadmissible and of course finally the last available remedy is to order a new trial and again however you characterize the error at issue here whether you characterize it as a verdict that's contrary to the weight of the evidence for an instructional air a new trial has always been the default remedy in those circumstances i think the problem with responding in the government's rule was well pointed out in mr bashes argument to the extent that the driving concern precious the government's limitations proposal imitations really don't make a lot of sense and neither does respondent suggestion made for the first time the argument today that there is a limitation on the time period in which juries can be recalled and that is for the simple reason that you can have a jury that's been out for a long period of time where you don't have prejudice and conversant you can have prejudice almost instantly particularly in the world of smartphone communications and the rule that this court articulate here is going to apply in civil and criminal cases alike and justice ginsburg the final judgment limitation really provides little solace in the criminal context because when a jury returns a verdict final judgment is typically not entered until after sentencing which again typically takes place some time later and bottom of the question in this case is really whether extending a court's power beyond the point of discharge is worth the candle and again in light of all the available alternatives in this situation