Brief Bank # B-800a (Re: F 17.41.1 n2 [Challenge To “Juror-Snitch” Instruction].)
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CALJIC 17.41.1
IV. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT URGED THE JURORS TO INFORM ON ONE ANOTHER.
Appellant contends the trial court committed error of constitutional magnitude when, pursuant to CALJIC No. 17.41.1, it ordered each juror to “advise” the court of any “improper” thoughts or intentions expressed by fellow jurors in the course of the jury deliberations.
Before the jury retired to deliberate, the court told the jury that
“The integrity of a trial requires that 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.” (RT 753.)
A written copy of the instruction was provided the jury. (CT 147; RT 754.)
Research discloses no cases in which similar instructions have been challenged or, for that matter, given to juries. Nevertheless, it appears clear the instruction should not have been given in the case at bar. Neither should it be given in any criminal case. The instruction infringes on fundamental constitutional rights, to wit, the right of a criminal defendant to the jury trial contemplated by the Sixth Amendment to the United States Constitution and article I, section 16, of the California Constitution. The instruction also appears to infringe on the right of citizens, serving as jurors, to freedom of speech and association. (U.S. Const., Amend. I.) [Footnote 1]
Private and secret deliberations are essential features of the jury trial guaranteed by the Sixth Amendment and article I, section 16. (People v. Oliver (1987) 196 Cal.App.3d 423, 429; United States v. Brown (D.C.Cir. 1987) 823 F.2d 591, 596.) The instruction here at issue pointedly told each juror that he or she was not guaranteed privacy or secrecy. At any time, the deliberations might be interrupted and a fellow juror might repeat his or her words to the judge and allege some impropriety, real or imagined, which the juror believed occurred in the jury room. The jurors were not only threatened with exposure. They were also left to wonder what consequences would follow exposure. Would “improper” words or intentions be punished by removal from the jury? Mention in the press? Criminal sanctions? The uncertainty likely tempted some of the jurors to forego independence of mind, conceal concerns they may have had about the state’s evidence, and hurry toward consensus.
The instruction, in short, assured the jurors that their words might be used against them and that candor in the jury room could be punished. The instruction therefore chilled speech. It chilled speech in a forum where “free and uninhibited discourse” is most needed. (Attridge v. Cencorp (2nd Cir. 1987) 836 F.2d 113, 116.) The instruction virtually ensured “the destruction of all frankness and freedom of discussion” in the jury room. (McDonald v. Pless (1915) 238 U.S. 264, 268.) It thereby interfered with the right of free association in a forum where free association is most needed. As our state Supreme Court has said, “(d)eliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member’s viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint.” (People v. Collins (1976) 17 Cal.3d 689, 693.) Where jurors find it necessary or advisable to conceal concerns from one another, they will not interact and try to persuade others to accept their viewpoints.
United States v. Thomas (2nd Cir. 1997) 116 F.3d 606 is an exegesis on the importance of jury secrecy and freedom of speech in the jury room. In Thomas, a juror, unsolicited by any instruction, told the judge that another juror had, in the jury room, expressed an intention to disregard the law read to them. The judge interviewed the jurors one at a time in chambers and then discharged the accused juror. The defendants were convicted. On appeal they complained about the discharge of the juror. The Circuit Court reversed the convictions. Although it agreed that a juror who intends to disregard or “nullify” applicable law is subject to dismissal, it decided that the possibility of jury nullification is a “lesser evil” than “broad-ranging judicial inquisitions into the thought processes of jurors.” (Id. at p. 623.)
The Thomas Court began by stating the “general rule” that
“no one – including the judge presiding at a trial – has a “right to know” how a jury, or any individual juror, has deliberated or how a decision was reached by a jury or juror. The secrecy of deliberations is the cornerstone of the modern Anglo-American jury system.” (Id. at p. 618.)
Not only may disclosure of the substance of jury deliberations undermine public confidence in the jury system and pose a threat to the finality of judgments. In addition it can interfere directly with the deliberative process.
“Juror privacy is a prerequisite of free debate, without which the decisionmaking process would be crippled. The precise value of throwing together in a jury room a representative cross-section of the community is that a just consensus is reached through a thoroughgoing exchange of ideas and impressions. For the process to work according to theory, the participants must feel completely free to dissect the credibility, motivations, and just deserts of other people. Sensitive jurors will not engage in such a dialogue without some assurance that it will never reach a larger audience.” (Id. at pp. 618-619.)
Thomas therefore concluded that
“(p)rotecting the deliberative process requires not only a vigilant watch against external threats to juror secrecy, but also strict limitations on intrusions from those who participate in the trial process itself, including counsel and the presiding judge.” (Id. at p. 620.)
Thomas also recognized that unanimous verdicts may be coerced where judges make “overly intrusive…inquiries into the substance of the jury’s deliberations.” (Id. at p. 622.)
“Consider a case where, for example, a strong majority of the jury favors conviction, but a small set of jurors – perhaps just one – disagrees. The group of jurors favoring conviction may well come to view the “holdout” or “holdouts” not only as unreasonable, but as unwilling to follow the court’s instructions on the law.” (Ibid.)
Thomas therefore held that when jurors report such “unwillingness” on the part of a fellow juror, a judge should refuse to discharge the juror “if the record evidence discloses any possibility that the request to discharge stems from the juror’s view of the sufficiency of the government’s evidence…” (Id. at pp. 621-622, quoting from United States v. Brown, supra, 823 F.2d at p. 596.)
Thomas concluded with these apt observations:
“Where the duty and authority to prevent defiant disregard of the law or evidence comes into conflict with the principle of secret jury deliberations, we are compelled to err in favor of the lesser of two evils – protecting the secrecy of jury deliberations at the expense of possibly allowing irresponsible juror activity. Achieving a more perfect system for monitoring the conduct of a jury deliberation room entails an unacceptable breach of the secrecy that is essential to the work of juries in the American system of justice. To open the door to the deliberation room any more widely and provide opportunities for broad-ranging judicial inquisitions into the thought processes of jurors would, in our view, destroy the jury system itself.” (Id. at p. 623.)
In the instant case, the instruction on “the integrity of a trial” opened wide the door to the deliberation room. The jurors had no more expectation of privacy and secrecy than they would have had if the judge had chosen to pull up a chair and sit in on the deliberations they undertook.
Is the error now at issue subject to harmless error analysis? No. There is no way to assess how much the instruction chilled speech in the jury room. There is no way to determine what thoughts and arguments were squelched by jurors who anticipated, feared and wished to avoid sanctions at the hands of the trial court. Under Evidence Code section 1150, “(n)o evidence is admissible to show the effect of [a] statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”
The giving of the instruction on “the integrity of a trial” amounted to a “structural” defect in the trial mechanism, much like a complete denial of a jury. (Rose v. Clark (1986) 478 U.S. 570, 579; Arizona v. Fulminante (1991) 499 U.S. 279, 309.) Automatic reversal of the judgment is the appropriate remedy because where this novel and threatening instruction is given, “there has been no jury verdict within the meaning of the Sixth Amendment.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 280; People v. Cahill (1993) 5 Cal.4th 478, 502.)
FOOTNOTES
Footnote 1: Appellant has standing to assert the constitutional rights of the citizens who served on his jury. (See Powers v. Ohio (1991) 499 U.S. 400, 415; People v. Tapia (1994) 25 Cal.App.4th 984, 1029.)