SERIES 100 PRETRIAL INSTRUCTIONS
F 101.6 DO NOT TALK WITH PARTY, WITNESS OR LAWYER; DO NOT LISTEN TO ANYONE
F 101.7 FREE TO DISCUSS AFTER TRIAL; CAN’T SELL INFORMATION FOR 90 DAYS
TABLE OF CONTENTS
F 101.6 DO NOT TALK WITH PARTY, WITNESS OR LAWYER; DO NOT LISTEN TO ANYONE
F 101.6 Inst 1 Duty To Report Improper Conduct
F 101.6 Inst 2 Do Not Speak With Others While A Juror
F 101.7 FREE TO DISCUSS AFTER TRIAL; CAN’T SELL INFORMATION FOR 90 DAYS
F 101.7 Inst 1 Improper To Inform Jurors About Selling Information
Return to Series 100 Table of Contents.
F 101.6 Inst 1 Duty To Report Improper Conduct
*Modify CC 101, paragraph 6, sentence 4, as follows:
If that person keeps talking to you about the case, you must end the conversation and immediately give my clerk _______________ <name of clerk> a written note reporting the incident to me. If the clerk is not available, give the note to the bailiff and inform the clerk about the note as soon as possible thereafter.
Points and Authorities
A. Duty To Report All Contacts—The CALCRIM instruction only requires a juror to report contacts where the other person “keeps talking to you” after being to asked stop. However, other contacts should be reported as well so it can be determined whether or not the conduct was potentially prejudicial.
B. Written Note To Clerk—Jurors must decide all questions of fact from the evidence received in trial and not from any other source. (See People v. Holloway (1990) 50 C3d 1098, 1108-12 [state supreme court unanimously reversed death penalty case because a single juror read newspaper article containing prejudicial information not revealed at trial]; see also In re Stankewitz (1985) 40 C3d 391, 396-400.) Hence, jurors should also be told to report knowledge of witnesses and other partisans, knowledge of facts in controversy and exposure to extra-judicial evidence or statements of the law. (See e.g., California Penal Code §1120 [jurors must declare in open court personal knowledge of fact in controversy or declaration of personal knowledge by another juror during deliberations].)
“Once a court is put on notice of the possibility that improper or external influences are being brought to bear on a juror, it is the court’s duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and whether the impartiality of other jurors has been affected.” (People v. McNeal (1979) 90 CA3d 830, 839; see also People v. Cleveland (2001) 25 C4th 466; U.S. v. Jackson (9th Cir. 2000) 209 F3d 1103, 1109 [anonymous threat to juror during deliberations requires evidentiary hearing to determine if juror believed defendant was responsible for threat].)
C. Duty To Send A Written Note To The Judge—Simply requiring the juror to tell the bailiff is insufficient because (1) it fails to assure the judge will be informed (see e.g., Weaver v. Thompson (9th Cir. 1999) 197 F3d 359 [bailiff improperly responded “yes” to juror question as to whether they must reach a verdict on all counts]) and (2) it provides no written record of the incident should the matter be appealed. (See Generally 7th Circuit Federal Jury InstructionsC Criminal 7.05 [Communication With Court] Committee comment (1999); see also People v. O‘Rama (NY 1991) 574 NYS2d 159, 163; Bray v. State (TX 1972) 478 SW2d 89, 91.)
D. Written Note Should Be Given To The Clerk—The better practice is to designate a specific clerk to whom juror notes should be given. This is so because there may be different bailiffs in court while the same clerk will likely always be present. Also, as a law enforcement officer, the bailiff may be less likely to assure the delivery of the note to the judge. (See e.g., Weaver v. Thompson (9th Cir. 1999) 197 F3d 359 [bailiff improperly responded “yes” to juror question as to whether they must reach a verdict on all counts]; see also Parker v. Gladden (1966) 385 US 363 [385 LEd2d 363; 87 SCt 468] [bailiff misconduct]; Dickson v. Sullivan (9th Cir. 1988) 849 F2d 403 [same]; People v. Hedgecock (1990) 51 C3d 395, 420 [judge should caution bailiffs regarding communications with jurors].) In situations where only the bailiff is available—e.g., during deliberations—the note will have to be given to the bailiff. In such cases the jurors should inform the clerk about the note as soon as possible so the clerk can verify that the note was delivered to the judge.
E. Duty To Report Discussion Of Case By Someone With Another Juror—The jurors should be aware of their duty to report improper discussion of the case by other jurors. (See e.g., CALCRIM 120, & 8; see also FORECITE F101.6 Inst 1; F 101.8 Inst 1.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.12 [Due Process: Appeal]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 101.6 Inst 2 Do Not Speak With Others While A Juror
*Modify CC 101, paragraph 6, sentence 1, as follows [added language is underlined; deleted language is stricken]:
During the trial While you are a juror, do not speak to any party, witness, or lawyer during the trial.
Points and Authorities
“While you are a juror”—“During the trial” could be interpreted to mean while court is in session. It also could be interpreted to apply only to the evidentiary portion of the case. To avoid these ambiguities CALCRIM 101 should be modified as set forth above. Moreover, the California Supreme Court has recognized the tendency of jurors to make erroneous assumptions about instructions which are not specifically spelled out. (See People v. Danks (2004) 32 C4th 269, 307 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.— To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 101.7 Free To Discuss After Trial; Can’t Sell Information For 90 Days
F 101.7 Inst 1 Improper To Inform Jurors About Selling Information
*Modify CC 101, paragraph 7, as follows:
[Delete sentence 2 re: negotiating payment for information about the case.]
Points and Authorities
It is inappropriate and unnecessarily duplicative to instruct the jurors regarding negotiations of fees for information about the trial prior to completion of the trial.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
