effects of the district judges not instructing the jury orally he was to substantially undermine confidence that the defendants trial was conducted consistently with due process i mean that we have a question and confidence is undermined as to whether the jurors actually heard and read the law that was applicable to the case counsel they every juror was asked individually if he or she had read each and every instruction and some of the instructions were given orally all the preliminary ones and a few of the others why isn't that more than we usually know we don't know orally whether somebody is making out a grocery list or dozing off because they had a late night the night before and we have at least as much certainty here as we ordinarily do  in some respects but the important point is this your honor when the judge asked jurors have you read the instructions that i sent home he doesn't ask enough first of all where was the juror at home was a jerk drinking alcohol was a jersey smoking marijuana which is now of course legal in oregon was a juror playing with his grandchild was a door juror playing with his if for example if the judge counsel you know i know you have a right to have this thing read orally i can read these are bob but let's save some time i'll just send them home then if the defense lawyer said yeah that's a great idea that's that's a that's a waiver right what the charge actually did here at the instructions he gave them to read at home were not the ultimate instructions ninety five percent of them yes but some of them were somewhat changed that seems very confusing to me  so but you're not exactly objecting to that a minute the whole notion of reading them instructions or whether you read them or give them to them and then sale but no i may change them later on and changing them  seems at least extremely undesirable i agree with you and also consider the fact that wasn't your argument that wasn't my argument but you know it wasn't my argument but it's part and parcel of the argument i'll add to it now when the jury is read jury instructions that your body is there it is a solemn moment the jury is focused the judge is looking at them hope reading the jurors looking at the jurors seeing it for jurors falling asleep seeing if it was not paying attention seeing if there's a question this is a solemn moment when jurors are taking the law from the court the judge here goes sending them home and by the way i'm not going to quiz you on it now what does that say i know is there any circumstance in which the you began by saying he didn't ask enough questions is there any circumstance in that would know which the judge may send the instructions home and then the next day be able to pass a fission number of questions to ensure that they have read the instructions or is your position that the failure to use drugs orally regardless subject to harmless error review and it's not structural and here you have otherwise model trial you have an impartial judge impartial jury one hundred percent correct instructions in so far as the case comes to us appropriate evidence it's all perfect the only oddity is that three quarters or so of the instructions were given in only written form and it seems to me somewhat peculiar to say that that is a structure of your key i mean it doesn't mean that every time it will be harmless but why isn't it subject to harmless error review well if it's not structural then it is subject to harmless error re it's not harmless the area here was plain it's error we know it's error it's plain because it was decided in one thousand nine hundred three the judge should have known it but the defense lawyers should have known it the government should have known it that was the law this court stated the law hundred three so it's error it's plain or right now the question is does it affect the integrity of the trial does it affect substantial rights answer yes why for all the reasons stated in mars in one nine hundred forty six for all the reasons stated by the third circuit the judge has to give the law orally so we can be sure that jurors hear the law we want to know they've heard it well we don't really know they've heard it that was what i was asking you at the beginning we have no idea if they're sitting there and they may be you know anxious about their kid at home who has the flu we don't have any idea whether they're paying attention whether they understood whether they are daydreaming we just don't have any way to know so if we make an assumption we presume that they're listening and paying attention and can understand stuff that's coming in orally but well it's far seems to me we actually know know that the jury has heard what you've said if you ask someone did you read last night's these thirty this packet of instructions at home when you know nothing about the home environment you have no idea you don't know anything about their reading ability which is being done in a case well i know but that k i mean you can't be advocating for that which is you can't give them the instruct the written instructions that's what that help wit had presumed that everybody was literate that may not have been the case in indiana nine hundred sixty i don't know about that your honor i know there's a certain level rick lincoln taught himself not much earlier than that that's true but at the same time shakespeare play were all around the country understand it but that was the premise of the opinion that many of these people literally couldn't read it but today we have people who you know may understand spoken english but whether they can read written english  good morning may please the court i'm tom radcliffe i may have the government what mr levine did not acknowledge is that it is his burden in this case given that we have plain error and that that burden requires him to persuade the court that there was actual prejudice we believe that the court and that's the question ought to answer isn't it well you think that because it's plain error even if this were otherwise structural  that we still apply the prejudice part of plan or no we don't believe that well if we get into structural error which is something i'm happy to talk about we think that's a different analysis my point is that the court in mark has said that what is error in this context what is prejudice in this context i should say is the inability to know whether the jurors received the instructions mark has stands for the proposition that it is error or not  instructional to have read the instructions it is to have received the instructor they took it home and they came back the next day and they didn't read it but i would have been all right because they had the instructions know what i'm saying is that in this case because of the record that allows the court to know allows the appellate court and everyone to know that the jurors affirmatively advised the district court that they had read each of those instructions that that's what takes this case out of the realm of marquez and that creates other judges doing it i do not know i have no indication that any of the other judges in the district were going to do it i thought there was some reference that the judges were doing it as well in maybe in the briefs well i think the  record at some point did say that it is his practice to do it this way and he might ask the jurors on the first day or even the final day whether they had read the instructions but judge mossman is no longer doing this and it is the policy of my office that we are to object if he were to propose again but the point i was trying to make regarding the defendant's burden is that it it's impossible for him to meet his burden of persuasion because the record conclusively demonstrates that each of the jurors read the instructions but i don't know that he does a medieval in the questioning it was somewhat coercive it was not private would deal in chambers it was in open court and i think it would take some courage for a juror to have said court is that not only did the district court have an opportunity to observe but the defendant and his lawyer and the government lawyer in this case that was me had a chance to observe whether there was any hesitation whether there was any anything beyond the bare answer on the transcript that would have indicated or raise some cause for concern and we believe that that's the fact that the district court was satisfied with those answers is a sort of implied credibility finding what it was if there was no questioning whether or not they had discuss it with anybody in their homes with or not they had looked that dictionaries or any other supporting materials what time did they do this that's reading it is really a very incomplete answer the course correct of  concerns me the most is their ability to read it make people may think they read it but we know that there are people unfortunately in this country a graduate from high school and you know can't read a complicated thing they just cat and then there are also people with language difficulties and he didn't go into any of that just goes on that gets to the point here that the district of organs jury management plan juror management plan which is publicly available and was tour a grand jury or pettitte jury in the federal system if someone cannot is unable to read write or understand it understand the english language sufficiently to fill out the jury qualification form and note your prospective jur can get into a courtroom and be chosen in the district i don't think there's a difference between filling out a jury qualification form an understanding rather involuted written instructions well your honor if we're talking about a baseline compared to the case from one hundred fifty seven years understand i'm not talking about that but i do think that there is a variation in reading ability and i have another question which is the one i asked before i'm in some ways what bothers me most about this practice which i'm glad it's no longer there the four a for b instruction regarding other bad acts and there were two then minor edits to other instructions and the court did read those he emphasized i understand that but and if you give somebody a piece of paper you siniora really have to read this here i think it's important to look back at what we do have in this case is the jury was given a greater opportunity to digest and comprehend and think about these instructions because they did receive them before any evidence came in and they had three days with them so they were able to unlike  was retrieved from them and they were all given individual new copies and then the final version and that was the final version by the way and did all of them bring the original ones back the record is unclear on whether they all brought the draft version back but they were sent back to the jury room of course then  a signed final set of instructions that was complete and the altered ones were read aloud as well absolutely are and so we believe that because all the defendant is relying on here is a parade of imaginary horribles that he cannot meet his burden of showing actual prejudice he talks about it in terms of presumed error on page twenty six of his brief but he wants to wish away the colloquy that the court had the polling process and he doesn't acknowledge that under marquez prejudice is proof that if you're to not read any instructions we have that proof in this case your honor can i ask whether i gather that you're not and going are your objecti these procedures what do you agree that this was an error we do shocking when you read them it's quite extraordinary that people will follow will follow an opinion even though they know it's wrong simply because they don't want to be embarrassed in front of a group thank you very much thank you counsel the case just  is submitted and we appreciate the help of arguments from both of you in this interesting case