Brief Bank # B-792 (FORECITE F 17.41.1 n2: Challenge To “Juror Snitch” Instruction.)
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THE TRIAL COURT ERRED IN INSTRUCTING THE JURY
WITH CALJIC NO. 17.41.1, OVER APPELLANT’S OBJECTION
During its pre-instruction conference with both counsel, the court proposed to instruct the jury with CALJIC No. 17.41.1, which states:
“The integrity of a trial requires that the jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation.” (CT 701.)
Appellant objected to the giving of this instruction. Defense counsel stated to the court:
“I do object to that, and I indicated to the court previously I would. I don’t have any particular case law to support the objection. It just seems to me that is in spirit inconsistent with 17.31, 17.40, and 17.41 which clearly explains the role of jurors and how they’re supposed to be independent in their thought processes, but at the same time they’re supposed to cooperate with one another and discuss the issues. It seems to me this is inviting them to get the court involved in their deliberative process, and in the normal course of events, the court wouldn’t get involved in the deliberative process. And I would object on those grounds.” (RT 1440.)
The prosecutor argued in favor of the instruction:
“I think it’s a proper instruction. I think it appropriately clarifies and states the boundaries of behavior in the jury room. It appropriately directs jurors to report to the court if misconduct is occurring, which absolutely is the court’s business, not just the jury’s business. It’s the business of the parties. We have a right as parties to expect the jurors will carry out their duties as they’re supposed to, not refuse to deliberate, not refuse to follow the law, not consider matters outside the record. And if those kinds of things are going on, we’re entitled to know that. So I think the instruction certainly gives proper direction. Additionally, it’s endorsed by CALJIC. And I would submit it on those comments.” (RT 1440-1441.)
The court concluded it would overrule appellant’s objection and give the instruction:
“All right. I appreciate the comments of both counsel. I do think that — I don’t believe that it unduly intrudes upon the jury’s deliberative process. All it does is indicate that if jurors are committing misconduct that that fact — or the jurors believe other jurors are committing misconduct, they should bring it to the attention of the court. What action the court takes is a different matter entirely. So I’m going to give the instruction.” (RT 1441.)
Appellant submits here that the giving of CALJIC No. 17.41.1 was error, as the language of the instruction tends unduly to involve the court in the deliberative process of the jury, just as defense counsel pointed out. The district attorney was incorrect to state that “if those kinds of things are going on, we’re entitled to know that.” At issue here are fundamental concerns regarding the protection of the secrecy and sanctity of jury deliberations, and the right of jurors to decide the cases entrusted to them without having to explain or justify their verdicts outside the jury room.
In United States v. Brown (D.C.Cir. 1987) 823 F.2d 591, the federal court of appeals considered the problems that arise when a trial court undertakes to determine whether to take action when it appears that a juror is unable to follow the court’s instructions because he or she disagrees with the law under which the defendant is being prosecuted. After a brief discussion in chambers with the juror in question disclosed this problem, the trial judge decided that he could not question the juror any further because additional inquiry would intrude on the secrecy of the jury’s deliberations. Nevertheless, his solution — dismissing the juror — arguably infringed the defendant’s Sixth Amendment right to be convicted only upon unanimous agreement of the jury which had originally been empaneled to try him, and if the dissenting juror’s thoughts had never been brought to the trial judge’s attention it was entirely possible that a unanimous verdict would not have been reached. In essence, the defendant argued that a juror will vote to convict only when the juror believes both that the defendant violated the law and that the jury should give effect to the law. The discharge of a juror for refusing to follow the law violates the defendant’s right to a unanimous verdict, the argument went, because the discharge allows a conviction to occur even though not all members of the jury wish to apply the law to the defendant’s conduct. (Id., 823 F.2d at pp. 595-596.) In addition, it is not always easy to determine whether a juror’s refusal to convict stems from an unwillingness to apply the law, or from a determination that the evidence is insufficient to justify a vote for conviction. (Id., at p. 596.) As the federal court stated,
“As the district court in this case aptly noted, a court may not delve deeply into a juror’s motivations because it may not intrude on the secrecy of the jury’s deliberations.” (Id., at p. 596.)
CALJIC No. 17.41.1, however, invites the jury to request the court to make just such an inquiry, and may thus unwisely open a Pandora’s Box of problems that may not satisfactorily be answered without intruding on the secrecy of the jury’s deliberations. Nor is it a satisfactory answer to say that, at least in this case, the matter is moot, because no juror called any such problem to the court’s attention. Such an answer ignores the likelihood that a juror who would hold fast to an unpopular decision if he knew that he could not be hauled before the court to account for it, may nevertheless be unwilling to do so if he knows his fellow jurors are going to report him to the judge. The likelihood of such a “chilling effect” is a strong argument in favor of simply not giving an instruction such as CALJIC No. 17.41.1 in the first place. Past experience has certainly shown that jurors have not hesitated to bring serious problems to the attention of the courts when they arise, and they should not be encouraged to do so more frequently, or on less justification, by receiving this sort of instruction.
Accordingly, appellant submits that, because of the giving of CALJIC No. 17.41.1, and because of the other errors set forth above, in arguments I, II, and III, his convictions must be reversed and a new trial ordered before a properly instructed jury.
