Not all evidence goes with the jury during deliberations. Just because an item like a police report or witness statement is admitted into evidence does not mean the jury will see that item during their deliberations. There is a rule called the continuing witness rule that prohibits certain items from being with the jury during its deliberations. The continuing witness rule prohibits writings from going back with the jury during deliberations when the evidentiary value of such writings depends on the credibility of the maker. Bryant v. State, 270 Ga. 266 (1988). The rule is based on the principle that it is unfair and places too much influence on the written piece of evidence to go out with the jury and be read during deliberations, while the testimony is received only once. Decapite v. State, 312 Ga. App. 832 (2011); Tanner v. State, 259 Ga. App. 54 (2003). As a general rule, the written statement of an alleged victim or witness should not be in the jury room during the jury's deliberations. The statement becomes a witness, whose testimony continues in the jury room. However, if the statement is “consistent with the theory of defense” it is not reversible error for the statement to go into the jury room. Clark v. State, 284 Ga. 354 (2008). According to the Supreme Court, whether the victim's statement is “consistent with the theory of defense” depends upon whether it is advantageous to the defendant, and whether and how defense counsel utilizes that evidence. If the statement contains inconsistencies, it is advantageous to the defendant. If the defendant used the statement to impeach the victim, introduced the statement into evidence, and relied on the statement during opening statement, cross- examination, and closing argument, it is not reversible error for the statement to go into the jury room. Scott v. State, 290 Ga. 883 (2012); Clark v. State, 284 Ga. 354 (2008).
The types of documents that have been held to be subject to the rule include affidavits, depositions, written confessions, statements and dying declarations. Sherrell v. State, 317 Ga. App. 571 (2012); Forrester v. State, 315 Ga. 1 (2012). The narrative portion of a police report should not go out with the jury. Sims v. State, 317 Ga. App. 420 (2012). The continuing witness rule does not apply to demonstrative evidence such as summaries of phone records which serve only to illustrate testimony. Wilkins v. State, 291 Ga. 483 (2012). Letters do not violate the continuing witness rule. Bollinger v. State, 272 Ga. App. 688 (2005); Vinyard v. State, 177 Ga. App. 188 (1985).
A violation of the continuing witness rule does not require reversal if the error was harmless.
When a jury during deliberation watches a portion of a video that they were not supposed to view, the judge must determine whether a mistrial is appropriate. The judge must determine whether any prejudicial effect can be corrected by withdrawing the material from the consideration of the jury with proper instructions. Alatise v. State, 291 Ga. 428 (2012).