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F 17.41.1 n1 Juror Misconduct: Nullification — Strategy Note.
CJ 17.41.1 states that it is the obligation of the jurors to “immediately advise the court” if “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….”
While it is settled that there is no obligation of the court to affirmatively instruct the jury regarding its power of nullification, (see People v. Williams (2001) 25 C4th 441, 457 [106 CR2d 295]), the question of whether the court may affirmatively give an anti-nullification instruction has not been expressly addressed. (See FORECITE PG IX(K).)
Accordingly, to the extent that CJ 17.41.1 attempts to affirmatively preclude jurors from exercising their nullification rights, it may be subject to challenge.
On the other hand, CJ 17.41.1 may be interpreted to permit a juror to exercise his or her right of nullification so long as this is not revealed to the other jurors. (See Kuwatch, California Drunk Driving Law, Fast Eddie Publishing Co., Chapter § 7(A).)
This is a particular concern given the apparent trend of juries to “gang up” on the hold-out juror. CJ 17.41.1 gives the majority jurors a basis for coercing the hold-out juror. This trend illustrates the increasing importance of empowering each individual juror to reach an individualized decision notwithstanding coercion from the majority. Potential methods for accomplishing this include the approach suggested in California Drunk Driving Law above, special instruction on juror coercion (see FORECITE F 17.40b), and emphasizing — through instruction and on voir dire — each individual juror’s right to communicate with the judge. (See e.g., FORECITE F 17.43c.)
F 17.41.1 n2 Challenge To “Juror-Snitch” Instruction.
ALERT: The views expressed below are supported by the proposed Judicial Council Instructions (released “For Comment Only”) in May, 2000. (See Judicial Council Draft Pre-Deliberation Instruction (# 190) which omits the “juror snitch” provision of CJ 17.41.1.) Although these proposed instructions have not been formally approved, they do provide added support for the argument advanced below.
ALERT: People v. Engelman (2002) 28 C4th 436, 449 [121 CR2d 862] held that CJ 17.41.1 is not legally improper but “creates a risk to the proper functioning of jury deliberations” that is neither necessary nor advisable. Accordingly, the Supreme Court, in the exercise of its supervisory power, directed that CJ 17.41.1 not be given in trials conducted in the future.
I. Improper Chilling Effect On Deliberations. CALJIC 17.41.1 [6th Edition, January, 1998 Pocket Part] was added in an apparent effort to preclude jurors from engaging in nullification. (No authority or Use Note was included with CJ 17.41.1.) However, this instruction may improperly chill the deliberations and undermine the independence of the jury. Private and secret deliberations are essential features of the jury trial guaranteed by the Sixth Amendment and Article I, § 16 of the California Constitution. (People v. Oliver (87) 196 CA3d 423, 429 [241 CR 804]; U.S. v. Brown (D.C. Cir. 1987) 823 F2d 591, 596.) However, CJ 17.41.1 pointedly tells each juror that he or she is not guaranteed privacy or secrecy. At any time, the deliberations may be interrupted and a fellow juror may 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 are not only threatened with exposure, they are also left to wonder what consequences will follow exposure. Would “improper” words or intentions be punished by removal from the jury? Mentioned in the press? Criminal sanctions? The uncertainty likely will cause jurors to forego independence of mind, conceal concerns they may have about the state’s evidence, and hurry toward consensus.
The instruction, in short, assures the jurors that their words might be used against them and that candor in the jury room could be punished. The instruction therefore chills speech and free discourse in a forum where “free and uninhibited discourse” is most needed. (Attridge v. Cencorp (2nd Cir. 1987) 836 F2d 113, 116.) The instruction virtually assures “the destruction of all frankness and freedom of discussion” in the jury room. (McDonald v. Pless (1915) 238 US 264, 268 [59 LEd2d 1300; 35 SCt 783].) Accordingly, the instruction improperly inhibits free expression and interaction among the jurors which is so important to the deliberative process. (See People v. Collins (76) 17 C3d 687, 693 [131 CR 782].) 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. “Juror privacy is a prerequisite of free debate, without which the decision making process would be crippled.” (U.S. v. Symington (9th Cir. 1999) 195 F3d 1080, 1086, citing Note, Public Disclosures of Jury Deliberations, 98 Harv. L. Rev. 886, 889.)
Free exchange and discourse during deliberations is so fundamental that it has been treated as an overriding policy consideration in a variety of contexts. For example, even when there is an allegation of serious juror misconduct, the trial court is precluded from inquiring into the specifics of the deliberations. “[A] court may not delve deeply into a juror’s motivations because it may not intrude on the secrecy of the jury’s deliberations. There are important reasons why a trial judge must not compromise the secrecy of the jury deliberations. First, if trial judges were permitted to inquire into the reasoning behind jurors’ views of pending cases, it would invite trial judges to second- guess and influence the work of the jury. Second a trial judge’s examination of juror deliberations risks exposing those deliberations to public scrutiny. Such exposure, in turn, would jeopardize the integrity of the deliberative process. As Justice Cardozo put it, freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.” [Internal citations and quotation marks omitted]. (U.S. v. Symington, supra, at 1086; see also U.S. v. Thomas (2nd Cir. 1997) 116 F3d 606, 619-20.) And, free jury discourse is so important that as a matter of policy, post-verdict inquiry into the internal deliberative process has been precluded despite allegations of serious improprieties. (See e.g., Tanner v. U.S. (87) 483 US 107 [97 LEd2d 90; 107 SCt 2739] [inquiry into juror intoxication during deliberations not permitted]; U.S. v. Marques (9th Cir. 1979) 600 F2d 742, 747 [no evidence permitted as to juror compromise].) For the same policy reasons, CJ 17.41.1 should not be allowed to chill free exchange and discourse during deliberations. (See People v. Engelman (2002) 28 C4th 436, 449 [121 CR2d 862].)
Therefore, CJ 17.41.1 should not be given. [Additional briefing on this issue is available; see Brief Bank # B-800a, B-800b, B-800c, B-800d, B-800e and B-800f.]
II. Improper Involvement Of Judge In Assisting Majority Jurors To Impose Their Will Upon The Minority. CJ 17.41.1 may improperly undermine the independence of the jury by involving the judge in assisting the majority jurors to impose their will upon the “hold-out” juror. (See generally FORECITE F 17.40b.) Moreover, while there is no obligation to instruct the jurors that they have the power to nullify (see FORECITE PG IX(K), it is another question whether the judge may affirmatively prevent a given juror from doing so. (See FORECITE F 17.40 n3.)
Because CJ 17.41.1 does just that (but see FORECITE F 17.41.1 n1), it should be omitted unless the defendant requests it. [See Brief Bank # B-792 for additional briefing on this issue.]
III. Denial Of Right To Juror Unanimity And Fair Trial By Jury. The right to a unanimous jury verdict is abridged when a deliberating juror is dismissed and the record reveals a possibility the dismissal occurred because that juror had doubts about the sufficiency of the government’s evidence. (U.S. v. Symington (6/2/99, 9th Cir. No. 98-10090, 98 10071, 98-10143) 99 DAR 6295 ; U.S. v. Thomas (2nd Cir. 1997) 116 F3d 606, 611-613, 624; U.S. v. Brown (D.C. Cir. 1987) 823 F2d 591.)
When such a dismissal is in effect manipulated by majority jurors who are frustrated with a holdout juror, this impermissibly permits the majority jurors to exercise control of the composition of the jury. (See People v. Roberts (92) 2 C4th 271, 325.)
When a defendant exercises his right to trial by jury, pursuant to the Sixth Amendment and California Constitution, article I, section 16, there is a right to the verdict by a unanimous jury. (Apodaca v. Oregon (72) 406 US 404.) That right is abridged by CJ 17.41.1 because it coerces potential holdout jurors into agreeing with the majority. (See Perez v.Marshall (9th Cir. 1997) 119 F3d 1422, 1426-1428.)
F 17.41.1 n3 Jury Misconduct: Duty Of Inquiry.
See FORECITE PG X(L)(5).
F 17.41.1a
Inquiry Into Juror Misconduct:
Cautionary Instruction After Inquiry Has Been Made
*Give after inquiry into juror misconduct pursuant to CJ 17.41.1:
You must not allow your deliberations to be affected in any manner whatsoever by the inquiry which [the attorneys and] I just conducted. Nor should you allow any emotional response arising from the subject matter of the inquiry to cloud your judgment or deter you from your duty of fairly deciding whether the prosecution has proven the defendant guilty beyond a reasonable doubt.
Points and Authorities
People v. Cleveland (2001) 25 C4th 466 [106 CR2d 313] recognized the danger that a trial court’s inquiry into allegations of misconduct during the jury’s deliberations may have a “chilling effect” on the deliberations. (See also People v. Hedgecock (90) 51 C3d 395, 418 [272 CR 803].) Hence, a cautionary instruction after juror inquiry may be appropriate. (See also People v. Hightower DEPUBLISHED (2000) 77 CA4th 1123, 1150 [92 CR2d 497] [trial court “may and perhaps should” admonish jurors not to allow renewed deliberations to be colored either by the court’s actions or by the strong emotions aroused by the events that prompted the court’s inquiry].)