SERIES 3500 POST-TRIAL: CONCLUDING
F 3550 Pre-Deliberation Instructions
TABLE OF CONTENTS
F 3550 Inst 1 Jurors Duty
F 3550 Inst 2 Individual Juror May Communicate With Judge
F 3550 Inst 3 Jurors Not To Take Judge’s Comments As Reflecting On Attorneys And Defendant
F 3550 Inst 4 Duty to Deliberate
F 3550 Inst 5 Duty to Deliberate: Impropriety of Juror-on-Juror Coercion
F 3550 Inst 6 Duty To Deliberate: Juror May Think About The Case And Make Notes While Deliberations Are In Recess
F 3550 Inst 7 No Electronic Research By Jurors Individually Or As A Group
F 3550 Inst 8 Jurors Must Not Conduct Investigation, Tests, Or Experiments During Deliberations
F 3550 Inst 9 No Limitation On Consideration Of Punishment Of Witness Granted Immunity/Leniency
F 3550 Note 1 Procedures And Instructions Re: Juror Deadlock
F 3550 Note 2 Propriety Of Giving The “Virga Firecracker” Instruction To A Deadlocked Jury
F 3550 Note 3 Individual Opinion Required: Duty To Deliberate – Informing Jury As To Possibility Of A Hung Jury
F 3550 Note 4 Duty To Deliberate: Jury Should Be Encouraged To Discuss The Case
F 3550 Note 5 Dismissal Of Juror For Failure To Deliberate
F 3550 Note 6 Jurors Must Only Discuss Case when All Jurors Are Together In The Jury Room
F 3550 Note 7 Improper To Refer To The Prosecution as “The People”
F 3550 Note 8 Discharge Of Juror: Applicability Of Double Jeopardy
F 3550 Note 9 Talking With Discharged Juror Prohibited By California Rules Of Professional Conduct
F 3550 Note 10 Judicial Misconduct: Informing Jury That Their Verdict Was Inconsistent
F 3550 Note 11 Juror Experiments During Trial Or Deliberations
F 3550 Note 12 Personal Expertise Of Juror
Return to Series 3500 Table of Contents.
F 3550 Inst 1 Jurors Duty
*Modify CC 3550, paragraph 3, sentence 3, as follows [added language is underlined; deleted language is stricken]:
Your role is to be an impartial judge of the facts, not to act as an advocate for one side or the other whether the People have proven all the elements of the charge(s) beyond a reasonable doubt.
Points and Authorities
See FORECITE F 100.1 Inst 1.
F 3550 Inst 2 Individual Juror May Communicate With Judge
*Modify CC 3550, paragraph 6, sentence 1, as follows [added language is underlined]:
If any of you needs to communicate with me while you are deliberating, send a note through the bailiff, signed by the foreperson or by one or more members of the jury.
Points and Authorities
It is well settled that deliberating jurors have a right to request “information” about both the testimony and the applicable law. (PC 1138; see also People v. Waidla (2000) 22 C4th 690, 746 [under PC 1138 “a trial court is required to instruct a deliberating jury on its request ‘on any point of law arising in the case.’ [Citation.”]; People v. Butler (1975) 47 CA3d 273.) And, in responding to such requests the trial court “must . . . consider how it can best aid the jury.” (People v. Beardslee (1991) 53 C3d 68, 97.)
It is also beyond dispute that each individual juror must decide the issues raised in the trial for themselves. (See FORECITE F 100.7 Inst 2 [Juror Duties: Individual Consideration].) Accordingly, any individual juror should be permitted to send requests to the judge by written note.
F 3550 Inst 3 Jurors Not To Take Judge‘s Comments As Reflecting On Attorneys And Defendant
*Modify CC 3550, paragraph 9, sentence 2, as follows [added language is underlined]:
[Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, the attorneys, the defendant, or what your verdict should be.]
Points and Authorities
See FORECITE F 100.4 Inst 6.
F 3550 Inst 4 Duty to Deliberate
See FORECITE F 17.40a.
F 3550 Inst 5 Duty to Deliberate: Impropriety of Juror-on-Juror Coercion
See FORECITE F 17.40b.
F 3550 Inst 6 Duty To Deliberate: Juror May Think About The Case And Make Notes While Deliberations Are In Recess
See FORECITE F 17.40c.
F 3550 Inst 7 No Electronic Research By Jurors Individually Or As A Group
*Modify CC 3550, paragraphs 4 (last sentence) and 5 as follows [added language is underlined]:
Do not communicate using: ________ <insert currently popular social media> during your deliberations either on your own or as a group. It is very important that you not use the Internet (, a dictionary/[,or ________ <insert other relevant source of information> ]) in any way in connection with this case during your deliberations either on your own or as a group.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Need For Added Language – The added language is necessary to assure the jurors do not misinterpret the admonition. (Compare CC 101, paragraph 5.)
F 3550 Inst 8 Jurors Must Not Conduct Investigation, Tests, Or Experiments During Deliberations
*Add to CC 3550:
Do not investigate the facts or the law or do any research regarding this case. Do not conduct any tests or experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
CC 3550 fails to admonish jurors not to conduct investigation or experiments during deliberations. (Compare CC 101, paragraph 5.)
F 3550 Inst 9 No Limitation On Consideration Of Punishment Of Witness Granted Immunity/Leniency
*Modify CC 3550, 11th paragraph re: punishment as follows:
You must reach your verdict without any consideration of punishment of the defendant. However, you are not precluded from considering the potential penalty facing any prosecution witness who had [charges pending] [was on probation] at the time of their testimony [or who received [leniency] [immunity]].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – Without the above modification CC 3550 conflicts with CC 226 which specifically permits consideration of immunity or leniency. The right to such an instruction on request was recognized in People v. Pitts (1990) 223 CA3d 606, 880-81 [judge refused defense request, inter alia, to allow jury to consider punishment “with regard to any witness who had charges pending or who was on probation”]; compare People v. James (2003) 30 CA4th 1084, 1114 [modification not requested].
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 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added, including, but not limited to, those in FORECITE CG 13.
F 3550 Note 1 Procedures And Instructions Re: Juror Deadlock
Neither CALCRIM nor CALJIC provide any specific comments or instructions regarding juror deadlock. For procedural notes on deadlock see FORECITE PG IX(J) and F 17.55 et seq.
For an instruction that the jurors must not surrender conscientiously held beliefs, see FORECITE F 17.55a.
F 3550 Note 2 Propriety Of Giving The “Virga Firecracker” Instruction To A Deadlocked Jury
The so-called “Virga Firecracker Instruction” was approved in People v. Moore (2002) 96 CA4th 1105, 1119-1120; see also People v. Hinton (2004) 121 CA4th 655, 661 [approving Moore instruction].)
It has apparently been updated with references to CALCRIM by the Sacramento Superior Court Research Attorney. The updated version was distributed to “All Judicial Officers” in the county on January 19, 2006. Thus, although the instruction does not appear in CALCRIM it is apparently being used in conjunction with CALCRIM.
The following discussion suggests possible modifications to the Virga instruction which might be requested.
Such instructions seem unfair because they focus primarily on how to reach a verdict without any reminder about the presumption of innocence.
1. Jurors should be admonished not to give supplemental instructions undue consideration. Because the Virga instruction is a supplemental admonition which is given during deliberations, the jurors may have a natural tendency to place undue emphasis on it. Hence, after delivering such a supplemental instruction, the court should admonish the jury not to give it any more significance than the other instructions which were previously delivered to the jury. (See Davis v. Erickson (1960) 53 C2d 860, 863-64; see also United States v. Meadows (5th Cir. 1979) 598 F2d 984, 990.) “In giving additional instructions to a jury — particularly in response to inquiries from the jury — the court should be especially careful not to give an unbalanced charge.” (U.S. v. Sutherland (5th Cir. 1970) 428 F2d 1152, 1157; see also People v. Moore (1954) 43 C2d 517, 526-27.)
Nothing in the body of the Virga instruction admonishes the jurors against giving it undue consideration.
2. The Virga Dynamite Instruction unduly focuses the jury on matters other than the presumption of innocence. Neither the Virga Instruction, nor either of the CALCRIM instructions it references (200 & 3550), say anything whatsoever about the presumption of innocence.
“A strong argument can be made that a supplemental charge should explicitly remind the jurors that the government bears the burden of proof in a criminal case, and that if the government has failed to prove guilt beyond a reasonable doubt, then the defendant is entitled to a not guilty verdict. These concepts were included in the seminal version of the Allen charge. [Citations.]” (6TH CIRCUIT PATTERN JURY INSTRUCTIONS – CRIMINAL 9.04 [Deadlocked Jury] commentary (1991); see also U.S. v. Lewis (6th Cir. 1981) 651 F2d 1163, 1165 [given the weakness of the evidence against the defendant and the jury’s difficulty in weighing the evidence, it was improper not to reinstruct on the government’s burden of proving guilt beyond a reasonable doubt].) “If the judge chooses to give any additional charge and elects not to repeat the entire original charge, he should remind the jury of the burden and quantum of proof and presumption of innocence and remind them that all instructions must be considered as a whole or take other appropriate steps to avoid any possibility of prejudice to the defendant.” (U.S. v. Sutherland 428 F2d at 1157.)
Accordingly, the Virga instruction is defective because it fails to remind the jurors about the presumption of innocence.
3. Even if there is no obligation to remind the jurors about the presumption of innocence, the Virga instruction unconstitutionally misleads the jurors regarding their duty in light of that presumption. The Virga instruction instructs the jurors that they “must determine what facts have been proved…and apply the law I state to you to the facts as you determine them and in this way, arrive at your verdict.” This description of the jurors’ duty is further explained in CALCRIM 200 – which the Virga instruction suggests the jurors “reread”– as follows:
You must decide what the facts are. It is up to you, exclusively, to decide what happened….” (CALCRIM 200, para 2.)
These admonitions misstate the jurors’ duty and skew the deliberations in favor of conviction.
As a legal principle, the presumption of innocence is straight forward: The prosecution has the burden of proving every essential fact and element of the charge beyond a reasonable doubt and the defendant has no burden to produce any evidence at all. (In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; U.S. v. Maccini (1st Cir. 1983) 721 F2d 840.) However, in practice this principle may be counter-intuitive to jurors who are naturally prone to view their role as deciding “what happened.” Therefore it is important for the jury instructions to assure the jurors understand that “. . . the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations . . . .” (Mitchell v. U.S. (1999) 526 US 314, 328 [119 SC. 1307; 143 LEd2d 424].) In other words, the instructions should avoid language–such as the CALCRIM passages quoted above–that perpetuates the juror’s intuitive inclination to make the trial a fact finding mission.
This is so because it is simply not necessary for the jurors to decide “what the facts are” or “what happened” to return a verdict of not guilty. The presumption of innocence is alone sufficient to acquit the defendant and a reasonable doubt as to guilt may be based on a lack of evidence or a conflict in the evidence. (People v. Hill (1998) 17 C4th 800, 831; see also Taylor v. Kentucky (1978) 436 US 478 [56 LEd2d 468; 98 SCt 1930]; United States v. Hollister (8th Cir. 1984) 746 F2d 420, 424.) In other words, there need not be any “affirmative evidence demonstrating a reasonable doubt . . .” (People v. Hill 17 C4th at 831.) “[T]he jury may simply not be persuaded by the prosecution’s evidence.” (Ibid.)
Because the Virga instruction, and the CALCRIM instructions to which it refers the jurors, do not convey the above principle, the Virga instruction is unconstitutionally misleading and unfairly skewed in favor of the prosecution. (See People v. Moore (1954) 43 C2d 517, 526-27 [275 P2d 485] [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”]; see also Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709]; cf.Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82]; Cool v. United States (1972) 409 US 100 [34 LEd2d 335; 93 SCt 354].)
4. The Virga Instruction fails to instruct the jurors not to surrender conscientiously held beliefs simply to secure a verdict. 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, 748-51 [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]; U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337 [“one of the most important parts of the Allen charge”]; Smalls v. Batista (2nd Cir. 1999) 191 F3d 272, 279 [“lack of any cautionary language which would discourage jurors from surrendering their own conscientiously held beliefs was a ‘fatal flaw'”].)
However, nowhere in the Virga instruction, nor in the CALCRIM instructions to which it refers, is a juror expressly precluded from changing his or her mind for the purpose of reaching a verdict. The Virga instruction tells the jurors to reread CALCRIM 3550 which states…”do not change your mind just because other jurors disagree with you.” (CC 3550, para 2.) This is a crucial omission because it unconstitutionally implies that changing one’s mind for the purpose of reaching a verdict is permissible.
5. The Virga instruction improperly requires that any subsequent notes from the jurors be signed by the foreperson. The last paragraph of the Virga instruction requires that any written note be “signed by the foreperson.” This improperly limits the right and ability of individual jurors to send notes to the judge.
“‘Because a defendant . . . has a right to a unanimous verdict of 12 impartial jurors [citations], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.’ [Citations.]” (People v. Holloway (1990) 50 C3d 1098, 1112; see also PC 1163 [“When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation”]; People v. McIntyre (1990) 222 CA3d 229, 232-33 [verdict of guilt may not be returned if even a single juror believes that the defendant was entrapped]; Davis v. Georgia (1976) 429 US 122 [50 LEd2d 339; 97 SCt 399] [holding death sentence unconstitutional where a single juror excluded in violation of Witherspoon v. Illinois (1968) 391 US 510 [20 LEd2d 766; 88 SCt 1770]; People of Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15 [each juror must be able to individually read and understand the instructions].)
F 3550 Note 3 Individual Opinion Required: Duty To Deliberate – Informing Jury As To Possibility Of A Hung Jury
See FORECITE F 17.40 n1.
F 3550 Note 4 Duty To Deliberate: Jury Should Be Encouraged To Discuss The Case
See FORECITE F 17.40 n2.
F 3550 Note 5 Dismissal Of Juror For Failure To Deliberate
See FORECITE F 17.40 n3.
F 3550 Note 6 Jurors Must Only Discuss Case when All Jurors Are Together In The Jury Room
See FORECITE F 17.40 n4.
F 3550 Note 7 Improper To Refer To The Prosecution as “The People”
See FORECITE F 17.40 n5.
F 3550 Note 8 Discharge Of Juror: Applicability Of Double Jeopardy
See FORECITE F 17.40 n6.
F 3550 Note 9 Talking With Discharged Juror Prohibited By California Rules Of Professional Conduct
See FORECITE F 17.40 n7.
F 3550 Note 10 Judicial Misconduct: Informing Jury That Their Verdict Was Inconsistent
The jury here returned guilty verdicts on the charges of offenses against multiple victims, but not true findings on the enhancements, one of which was that there were multiple victims. The trial judge improperly told the jurors that their verdicts were inconsistent, that they might wish to reconsider, and that they should find the multiple victim enhancement true. While it was true that the verdicts were inconsistent, there was an acquittal in open court and the defendant was entitled under state law (PC 1161: “when there is a verdict of acquittal, the Court cannot require the jury to reconsider”) and federal constitutional provisions (jury trial and double jeopardy) to benefit of acquittal, even if due to jury’s confusion. Trial court’s action was “in excess of its authority ….” People v. Guerra (2009) 176 CA4th 933.)
F 3550 Note 11 Juror Experiments During Trial Or Deliberations
See FORECITE F 101.1 Note 7.
F 3550 Note 12 Personal Expertise Of Juror
See FORECITE F 101.1 Note 8.
