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PG IX(J) Instructions To A Deadlocked Jury.
[See also FORECITE BIBLIO 17.50]
PG IX(J)(1) General Rule:
It is proper for the judge to make reasonable non-coercive efforts to obtain jury agreement. Inquiry into numerical division alone and urging the jury to reach a verdict are proper. (See 6 Witkin, California Criminal Law (2d Ed. 1989) § 3019.) The judge may not, however, determine how many jurors stand for guilt and innocence and then urge agreement. (Id. at § 3020.) Nor may the judge admonish the minority jurors to reconsider their position in light of the majority. (People v. Gainer (77) 19 C3d 835, 842-47 [139 CR 861].)
Jurors Must Be Reminded Not To Surrender Conscientiously Held Beliefs: When a trial court instructs a deadlocked jury it “is essential in almost all cases to remind jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party.” (U.S. v. Mason (9th Cir. 1981) 658 F2d 1263, 1268; see also Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739 [inquiry held not to be coercive where court on four occasions reminded the jurors not to surrender their sincerely held beliefs under pressure from the majority].) A trial court’s failure to give such a cautionary instruction weighs heavily in favor of the conclusion that the defendant’s right to a fair trial and impartial jury has been violated. (See Jiminez v. Myers (9th Cir. 1993) 40 F3d 976; see also U.S. v. Bonam (9th Cir. 1985) 772 F2d 1449, 1450; Mason, supra, 658 F2d at 1268.)
Types Of Coercion: Judge’s Post-Deadlock Comment On The Evidence. People v. Rodriguez (86) 42 C3d 730, 765-70 [230 CR 667] overruled People v. Cook (83) 33 C3d 400 [189 CR 159] and held that the judge may offer comment on the evidence after the jury has stated it is deadlocked. However, such comments must be “rigorously scrutinized for scrupulous fairness.” (Internal citations and quotation marks omitted.) (Rodriguez, 42 C3d at 770; see also Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739.)
PG IX(J)(2) Inquiry Into Numerical Division Of Jury May Coerce Verdict:
California cases have traditionally allowed the judge to inquire into the numerical division of the jurors and to urge the jury to reach a verdict. (See 6 Witkin, Calif. Criminal Law (2nd Ed 1989) § 3019; see also People v. Gill (98) 60 CA4th 743, 748 [70 CR2d 369].) However, in Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, the 9th Circuit held that such procedures may violate the defendant’s 14th Amendment due process rights by impermissibly coercing the jury to render a guilty verdict. In Jiminez, the California trial judge twice inquired into the numerical division of the jury, commented with approval upon the jurors’ “movement” toward a verdict and told the jury that it should seek unanimity without admonishing individual jurors not to surrender their individual views simply to achieve a verdict. Two appellate judges held this to be a due process violation. (See also Packer v. Hill (9th Cir. 2000) 291 F3d 569 [trial judge violated defendant’s due process rights by coercing jury to render guilty verdict]; compare Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739 [inquiry held not to be coercive where court on four occasions reminded the jurors not to surrender their sincerely held beliefs under pressure from the majority].) Judge Kozinski dissented on the basis that the majority had invented a type of “de facto” rule of juror coercion.
The determination as to whether there is a reasonable probability of agreement rests in the sound discretion of the trial court. (People v. Miller (90) 50 C3d 954, 994 [269 CR 492].) “The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment ‘in favor of considerations of compromise and expediency.’ [Citation].” (Ibid.) Whether coercion has occurred “is essentially a factual determination, dependent upon varying circumstances.” (People v. Duran (83) 140 CA3d 485, 505 [189 CR 595].)
“‘A trial judge should refrain from placing specific time pressure on a deliberating jury and should never imply that the case warrants only desultory deliberation. Such comments risk persuading legitimate dissidents, whatever their views, that the court considers their position unreasonable.'” (People v. Anderson (90) 52 C3d 453, 469 [276 CR 356], quoting People v. Keenan (88) 46 C3d 478, 534 [250 CR 550].)
This rule applies not just during deliberations but at any stage of the trial. Hence, the court should refrain from suggesting to the jurors prior to the commencement of deliberations, the amount of time the court thinks will be necessary to reach a verdict. (Anderson 52 C3d at 469.)
PG IX(J)(3) Instruction On Lesser Included In Response To Jury Deadlock:
[See FORECITE PG IX(H)(2).]
PG IX(J)(4) Dismissal Of Certain Charges In Response To Jury Deadlock:
The question of whether the court may withdraw from a deadlocked jury consideration of the greater offense in order to permit a verdict on a lesser offense was discussed in People v. Bordeaux (90) 224 CA3d 573 [273 CR 717]. The majority indicated that the judge is permitted to effectively dismiss the greater offense pursuant to PC 1385. But see the dissent of Justice Wiener who concludes that such a procedure is “contrary to both the people’s and defendant’s respective rights to a jury verdict free from judicial interference.” (Bordeaux 224 CA3d at 584.)
PG IX(J)(5) Failure Of Jury To Agree Upon Entrapment:
No verdict of guilt may be returned unless the jury unanimously agrees upon the issue of entrapment. Therefore, even if the jury indicates that it overwhelmingly rejected entrapment, unless this rejection is unanimous the judge should reinstruct the jury with CJ 4.60 and send it back for further deliberations or, if further deliberations would be fruitless, declare a mistrial. (People v. McIntyre (90) 222 CA3d 229, 232-33 [271 CR 467].)
PG IX(J)(6) Advice As To Consequences Of Deadlock:
Mitchell v. State (95) 659 A2d 1282 [338 Md. 536] held that the judge has no obligation to respond to a jury request as to the consequences of a hung jury. The dissent contended that an accurate answer would have been meaningful and helpful to the jury; not answering the question, the dissent claimed, ensured the defendant’s conviction.
PG IX(J)(7) Both Minority And Majority Must Be Encouraged To Consider The Other’s View:
U.S. v. Burgos (4th Cir. 1995) 55 F3d 933, held that the failure to explicitly instruct deadlocked jurors that both the minority and majority should reconsider each other’s views was reversible error.
[See Brief Bank # B-812 for additional briefing on this issue.]
PG IX(J)(8) Instructions Should Inform Jury That A Verdict Need Not Be Reached.
In People v. Wattier (96) 51 CA4th 948 [59 CR2d 483] the defendant claimed that the court improperly coerced a verdict by instructing the jurors to continue deliberations after one of the jurors disagreed with the verdict during the polling of the jury. The Court of Appeal held that the verdict was not coerced because, in part, the court had instructed the jury that “Each of you must consider the evidence for the purpose of reaching a verdict if you can do so.” [Emphasis in original.] Hence, the fact that the judge indicated to the jury that they did not have to reach a verdict was an important factor in concluding that the verdict was not coerced.
Note: This same language appears in CJ 17.40.
PG IX(J)(9) New Instructions At The Time Of The Deadlock Heighten The Coerciveness.
When dealing with a deadlocked jury, the coerciveness of any instructions given will be heightened if the judge gives new and unfamiliar instructions at the time of deadlock rather than simply repeating the part of the original jury instructions dealing with the jury’s duty to deliberate with an open mind. (See Romine v. Georgia (88) 484 US 1048, 1050 [98 LEd2d 873; 108 SCt 788] [opinion of Justice Marshall dissenting from denial of rehearing].)
PG IX(J)(10) Removal Of Holdout Juror When Jury Is Deadlocked.
A holdout juror should not be excused when the jury is otherwise deadlocked unless the juror has committed serious and willful misconduct. (See generally People v. Hamilton (63) 60 C2d 105, 128 [32 CR 4]; see also People v. Cleveland(2001) 25 C4th 466, 484-86 [106 CR2d 313] [discussing circumstances in which juror may be discharged for failure to deliberate]; but see People v. Elam (2001) 91 CA4th 298 [110 CR2d 185] [trial court prejudicially erred in removing a juror during deliberations merely because other jurors indicated that the juror in question had some trouble understanding English, when communication was still possible and the juror appeared to understand what was transpiring but had a different view of the law and the facts than the other jurors].)
[Additional briefing and an unpublished opinion on this issue are available to FORECITE subscribers, ask for Brief Bank # B-726 and Opinion Bank # O-227.]
PG IX(J)(11) Removal Of Holdout Juror: Applicability Of Double Jeopardy.
See FORECITE F 17.40 n6.
PG IX(J)(12) Removal Of Holdout Juror: Improper To Remove Based On Failure To Disclose Information On Voir Dire.
A trial court may not remove a juror to accommodate the prosecution’s desire to exercise a peremptory challenge after a jury has been impaneled. (See Sanders v. Lamarque (2004) 357 F3d 943; see also McDonough Power Equip. Inc. v. Greenwood (84) 464 US 548, 555 [78 LEd2d 663; 104 SCt 845] [“A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to re-create the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination”].)
PG IX(J)(13) Juror Deadlock: Sample Instruction.
See instruction given in People v. Moore (2002) 96 CA4th 1105, 1119-1120; see also People v. Hinton (2004) 121 CA4th 655, 661 [approving Moore instruction].)
PG IX(J)(14) Coercive Deadlock: Standard Of Prejudice.
“[W]hen the erroneous admonition to minority jurors is given or repeated to a criminal jury which have indicated that they are divided, it is difficult if not impossible to ascertain if in fact prejudice occurred; yet it is very likely that it did.” (People v. Gainer (77) 19 C3d 835, 855.) Accordingly, “a conviction following such a charge given in those circumstances is a `miscarriage of justice’ within the meaning of article VI, section 13, of the California Constitution, and the judgment must be reversed.” (Ibid.; see also People v. Hinton (2004) 121 CA4th 655, 660.)
PG IX(J)(15) CRC Rule 2.1036 And Available Options In Response To Deadlock.
Rule 2.1036 provides as follows:
After a jury reports that it has reached an impasse in its deliberations, the trial judge may, in the presence of counsel, advise the jury of its duty to decide the case based on the evidence while keeping an open mind and talking about the evidence with each other. The judge should ask the jury if it has specific concerns which, if resolved, might assist the jury in reaching a verdict.
(b) Possible further action
If the trial judge determines that further action might assist the jury in reaching a verdict, the judge may:
(1) Give additional instructions;
(2) Clarify previous instructions;
(3) Permit attorneys to make additional closing arguments; or
(4) Employ any combination of these measures. (Rule 2.1036 adopted effective January 1, 2007.)
However, at least three caveats should be kept in mind with respect to this rule:
CAVEAT 1 – The Rules of Court cannot supersede established statutes, case law or federal constitutional provisions. (See FORECITE PG I (H)(8).) Thus, Rule 2.1036 should be viewed as an advisory comment only, and counsel should not be constrained by the Rule in requesting and/or objecting to procedures in response to juror deadlock.
CAVEAT 2 – Any response to juror deadlock may be potentially coercive. (See e.g., People v. Gainer (1977) 19 C3d 835, 855; see also PG IX(J)(9) [New Instructions At The Time Of Deadlock Heightens The Coerciveness].) Hence, if the judge utilizes any of the responses suggested in Rule 2.1036(b), special cautionary instructions may be necessary to reduce the risk of coercion and/or undue emphasis of certain evidence or instructions. (See e.g., PG IX(J)(1) [Jurors Must Be Reminded Not To Surrender Conscientiously Held Beliefs]; PG IX(J)(6) [Advice As To Consequences Of Deadlock]; PG IX(J)(7) [Both Minority And Majority Must Be Encouraged To Consider The Other’s View]; PG IX(J)(8)[Instructions Should Inform Jury That A Verdict Need Not Be Reached].)
CAVEAT 3 – The list of options in Rule 2.1036(b) should not be considered as exclusive. Other options which may be available include: judicial comment on the evidence (see PG IX(J)(1)) and reopening the evidence. The judge has authority to order a case reopened for good cause even after jury deliberations have begun. (PC 1094; People v. Green (1980) 27 C3d 1, 42; People v. Christensen (1890) 85 C 568, 578; People v. Frohner (1976) 65 CA3d 94, 109-111; People v. Newton (1970) 8 CA3d 359, 383; see also generally People v. Jones (2003) 30 C4th 1084, 1110 [generally discussing criteria to be considered in deciding whether to reopen the taking of evidence].)
PG IX(J)(16) Juror Deadlock: Virga Firecracker Instruction.
See FORECITE F 3550 Note 2.