PG VII(I) Constitutional Grounds, Section 7

PG VII(I)(b) Grounds For All Cases—Capital and Non-Capital

TABLE OF CONTENTS
CG 7 Juror Duties And Conduct
CG 7.1 Right To Jury Consideration Of The Evidence
CG 7.2 Jury’s Duty To Fully And Fairly Apply The Law
CG 7.2.1 Conflicting Or Contradictory Instructions
CG 7.3 Consideration Of Matters Not Admitted Into Evidence
CG 7.4 Juror Consideration Of Evidence For An Improper Purpose
CG 7.5 Fair And Unbiased Jury
CG 7.6 Premature Deliberations Or Formulation Of Opinion
CG 7.7 Ex Parte Juror Contact
CG 7.8 Right To Individual Juror Determination
CG 7.9 Duty To Deliberate Fully And Fairly
CG 7.10 Juror Nullification
CG 7.11 Juror Questions Of Witnesses
CG 7.12 Juror Questions Of Judge
CG 7.13 Juror Requests For Readback

Return to Constitutional Grounds Table of Contents.

CG 7 Juror Duties And Conduct.

CG 7.1 Right To Jury Consideration Of The Evidence.

CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)

Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to require the jury to consider any evidence upon which the defendant relies to leave the jury with a reasonable doubt as to any element of the charge. (See e.g., Martin v. Ohio (1987) 480 US 228, 234 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]]; Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Chambers v. Mississippi (1973) 410 US 284 [93 SCt 1038; 35 LEd2d 297]; People v. Bobo (1990) 229 CA3d 1417, 1442 [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state].)

These rights are implicated by any procedures and/or instructions which permit and/or encourage the jurors to convict the defendant without having considered all of the evidence. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-42 [the right to present evidence is meaningless if the jury is not required to consider it]; People v. Cox (1991) 53 C3d 618, 695-96 [“defendant as well as the prosecution have a right to the reasoned, dispassionate and considered judgment of the jury” ].)

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]

Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]

If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)

CG 7.2 Jury’s Duty To Fully And Fairly Apply The Law.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments) as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)

Unless this instructional request is granted, the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to assure that the jury fully understands the law stated in the jury instructions and that the jury fairly, impartially and accurately applies that law. (See Estelle v. McGuire (1991) 502 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood instructions]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444] [it is “the jury’s constitutional responsibility … not merely to determine the facts, but to apply the law to those facts…”]; Sullivan v. Louisiana (1993) 508 US 275 [124 LEd2d 182; 113 SCt 2078] [improper instruction on burden of proof as structural error]; Wainwright v. Witt (1985) 469 US 412 [83 LEd2d 841; 105 SCt 844] [jurors must be willing and able to follow the judge’s instructions]; Adams v. Texas (1980) 448 US 38, 45 [65 LEd2d 581; 100 SCt 2521] [fairness of jurors should be measured by their ability to conscientiously follow the judge’s instructions]; Johnson v. Armontrout (8th Cir. 1992) 961 F2d 748 [failure to remove two jurors who had previously convicted another person for the same robbery charged against Johnson, and those jurors formed the opinion that Johnson was guilty before his trial began, violated his 6th and 14th Amendment rights to be tried by an impartial jury].)

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3..]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases, additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty]].)

CG 7.2.1 Conflicting Or Contradictory Instructions.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to assure that the jury fully understands the law stated in the jury instructions and that the jury fairly, impartially and accurately applies that law. (See Estelle v. McGuire (1991) 502 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood instructions]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444] [it is A the jury’s constitutional responsibility … not merely to determine the facts, but to apply the law to those facts …” ]; Sullivan v. Louisiana (1993) 508 US 275 [124 LEd2d 182; 113 SCt 2078] [improper instruction on burden of proof as structural error]; Wainwright v. Witt (1985) 469 US 412 [83 LEd2d 841; 105 SCt 844] [jurors must be willing and able to follow the judge’s instructions]; Johnson v. Armontrout (8th Cir. 1992) 961 F2d 748 [failure to remove two jurors who had previously convicted another person for the same robbery charged against Johnson, where those jurors formed the opinion that Johnson was guilty before his trial began, violated his Sixth and 14th Amendment rights to be tried by an impartial jury].)

“Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jury applied in reaching their verdict.” (Francis v. Franklin (1985) 471 US 307, 322 [85 LEd2d 344; 105 SCt 1965]; see also Cabana v. Bullock (1986) 474 US 376 [106 SCt 689; 88 LEd2d 704]; Conde v. Henry (9th Cir. 1999) 198 F3d 734 [conflict between preamble and body of instruction on elements]; People v. Macedo (1989) 213 CA3d 554, 561 [conflicting instructions on elements of charge “constitute federal constitutional error” ].)

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 7.3 Consideration Of Matters Not Admitted Into Evidence.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by:

(1) Failing to assure an impartial, unbiased jury capable of and willing to decide the case solely on the evidence before it. (Smith v. Phillips (1982) 455 US 209, 217 [102 SCt 940; 71 LEd2d 78]; Sheppard v. Maxwell (1966) 384 US 333, 363 [86 SCt 1507; 16 LEd2d 600] [“reasonable likelihood” of jury bias, because of televised confession and other media exposure, warranted trial court inquiry]; Remmer v. U.S. (1954) 347 US 227 [74 SCt 450; 98 LEd 654]; Ohio Bell Tel. Co. v. Public Utilities Comm. of Ohio (1937) 301 US 292, 300-03 [57 SCt 724; 81 LEd2d 1093]; Mattox v. U.S. (1892) 146 US 140, 149 [13 SCt 50; 36 LEd 917]; U.S. v. Dutkel (9th Cir. 1999) 192 F3d 893, 894-95 [jury tampering by codefendant raised presumption of prejudice].)

(2) Failing to assure that the jurors will only consider evidence which has been duly admitted at trial after affording the defendant an opportunity to cross-examine and confront the witness who offers the testimony. (See Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; see also Lilly v. Virginia (1999) 527 US 116, 139 [119 SCt 1887; 144 LEd2d 177]; Idaho v. Wright (1990) 497 US 805, 816-17 [110 SCt 3139; 111 LEd2d 638]; Mach v. Stewart (9th Cir. 1997) 129 F3d 495 [trial court’s refusal to grant a mistrial or conduct further voir dire after a prospective juror made repeated expert-like statements concerning the veracity of a child’s accusations of sexual abuse violated petitioner’s right to an unbiased jury]; United States v. Schuler (9th Cir. 1987) 813 F2d 978 [prosecutor’s comments on non-testifying defendant’s demeanor during guilt trial improperly put defendant’s character in issue, and violated his 5th Amendment right not to testify and not to be convicted except upon the basis of evidence introduced at trial]; U.S. v. Davis (DC Cir. 1997) 127 F3d 68, 70; In re Hitchings (1993) 6 C4th 97.)

These rights are violated by procedures, jury instructions and/or the absence of jury instructions which permit and/or encourage the jury to rely on evidence which was not admitted into evidence at trial.

(3) Failing to assure against juror misconduct. Juror misconduct implicates the constitutional rights guaranteed by the Sixth and 14th Amendments. (Jeffries v. Wood (9th Cir. 1997) (en banc) 114 F3d 1484, 1490-1492; Marino v. Vasquez (9th Cir. 1987) 812 F2d 499.) For example:

“When a jury considers facts that have not been introduced in evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence. In one sense, the violation may be more serious than where these rights are denied at some other stage of the proceedings because the defendant may have no idea what new evidence has been considered. It is impossible to offer evidence to rebut it, to offer a curative instruction, to discuss its significance in argument to the jury, or to take other tactical steps that might ameliorate its impact.” (Gibson v. Clannon (9th Cir. 1980) 633 F2d 851, 853; see also Sassounian v. Roe (9th Cir. 2000) 230 F3d 1097; Eslaminia v. White (9th Cir. 1998) 136 F3d 1234.)

Similarly, unauthorized reference to dictionary definitions of legal terms constitutes constitutional error which the State must prove harmless beyond a reasonable doubt. (United States v. Kupau (9th Cir. 1986) 781 F2d 740, 744.)

Even if “only one juror was unduly biased or improperly influenced [by exposure to facts not introduced in evidence, defendant] was deprived of his Sixth Amendment right to an impartial panel” of twelve unprejudiced jurors. (Dickson v. Sullivan (9th Cir. 1988) 849 F2d 403, 406; People v. Nesler (1997) 16 C4th 561.)

A juror’s concealment of bias or prejudice, like other forms of juror misconduct, may deny a defendant his 6th Amendment right to a fair trial by an impartial jury. (Dyer v. Calderon (9th Cir. 1998) (en banc)151 F3d 970; United States v. Eubanks (9th Cir. 1979) 591 F2d 513, 516-517; Burton v. Johnson (10th Cir. 1991) 948 F2d 1150.)

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 7.4 Juror Consideration Of Evidence For An Improper Purpose.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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This instruction is required by the federal constitutional rights to a fair trial by jury, confrontation, due process and the right to counsel (5th, 6th and 14th Amendments) which require that the jury only consider evidence that has been duly admitted at trial after affording the defendant an opportunity to cross-examine and confront the witness who offers the testimony. (See Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; see also Lilly v. Virginia (1999) 527 US 116, 139 [119 SCt 1887; 144 LEd2d 1177]; Idaho v. Wright (1990) 497 US 805, 816-17 [110 SCt 3139; 111 LEd2d 638]; U.S. v. Davis (DC Cir. 1997) 127 F3d 68, 70; In re Hitchings (1993) 6 C4th 97.)

Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by permitting or encouraging jurors to consider evidence for purposes for which it was not admitted. This is so because the consideration of evidence for an improper purpose is, in effect, the consideration of extraneous evidence. This violates the federal constitutional requirement that the jury only consider evidence which has been duly admitted at trial after affording the defendant an opportunity to cross-examine and confront the witness who offers the testimony. (See Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; see also Lilly v. Virginia (1999) 527 US 116, 139 [119 SCt 1887; 144 LEd2d 177]; Idaho v. Wright (1990) 497 US 805, 816-17 [110 SCt 3139; 111 LEd2d 638]; Mach v. Stewart (9th Cir. 1997) 129 F3d 495 [trial court’s refusal to grant a mistrial or conduct further voir dire after a prospective juror made repeated expert-like statements concerning the veracity of a child’s accusations of sexual abuse violated petitioner’s right to an unbiased jury]; United States v. Schuler (9th Cir. 1987) 813 F2d 978 [prosecutor’s comments on non-testifying defendant’s demeanor during guilt trial improperly put defendant’s character in issue, and violated his 5th Amendment right not to testify and not to be convicted except upon the basis of evidence introduced at trial]; U.S. v. Davis (DC Cir. 1997) 127 F3d 68, 70; In re Hitchings (1993) 6 C4th 97.)

Furthermore, juror consideration of evidence for an improper purpose violates the defendant’s right to fair notice of the evidence to be considered by the jurors. (See Lankford v. Idaho (1991) 500 US 110, 119-27 [111 SCt 1723;114 LEd2d 173]; Gardner v. Florida (1977) 430 US 349 [51 LEd2d 393; 97 SCt 1197]; Forgy v. Norris (8th Cir. 1995) 64 F3d 399; Thomas v. Harrelson (11th Cir. 1991) 942 F2d 1530; Sheppard v. Rees (9th Cir. 1990) 909 F2d 1234.)

Additionally, where the improper purpose of the evidence is inherently prejudicial and inflammatory, jury consideration of the evidence for this improper purpose violates the defendant’s federal constitutional right to a fair and unbiased jury. (See McKinney v. Rees (9th Cir. 1993) 993 F2d 1378.) [See also FORECITE CG 5.1.]

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 7.5 Fair And Unbiased Jury.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to assure the jurors will be fair and unbiased. (See e.g., J.E.B. v. Alabama (1994) 511 US 127, 131 [114 SCt 1419; 128 LEd2d 89]; Powers v. Ohio (1991) 499 US 400, 404 [111 SCt 1364; 113 LEd2d 411] and Batson v. Kentucky (1986) 476 US 79, 84-86 [106 SCt 1712; 90 LEd2d 69]; McDonough Power Equipment, Inc. v. Greenwood (1984) 464 US 548, 554 [104 SCt 845; 78 LEd2d 663]; In re Hitchings (1993) 6 C4th 97; U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 259; Gray v. Mississippi (1987) 481 US 648, 668 [107 SCt 2045; 95 LEd2d 622].) The federal constitution requires that the jury fully understand the law stated in the jury instructions and that the jury fairly, impartially and accurately apply that law. (See Estelle v. McGuire (1991) 502 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood instructions]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444] [it is “the jury’s constitutional responsibility … not merely to determine the facts, but to apply the law to those facts …” ]; Sullivan v. Louisiana (1993) 508 US 275 [124 LEd2d 182; 113 SCt 2078] [improper instruction on burden of proof as structural error]; Wainwright v. Witt (1985) 469 US 412 [83 LEd2d 841; 105 SCt 844] [jurors must be willing and able to follow the judge’s instructions]; Johnson v. Armontrout (8th Cir. 1992) 961 F2d 748 [failure to remove two jurors who had previously convicted another person for the same robbery charged against Johnson, where those jurors formed the opinion that Johnson was guilty before his trial began, violated his Sixth and 14th Amendment rights to be tried by an impartial jury].)

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 7.6 Premature Deliberations Or Formulation Of Opinion.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by:

(1) Failing to require that the prosecution bear the burden of proving the defendant guilty beyond a reasonable doubt. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)

(2) Permitting or encouraging the jurors premature discussion, deliberation and/or formation of opinions about the case before the jury has heard all of the evidence, arguments of counsel and jury instructions. (See In re Hitchings (1993) 6 C4th 97, 118, fn 6.) A juror’s premature formulation of an opinion skews the burden of proof in violation of the defendant’s federal constitutional rights to trial by jury and due process. (See Patton v. Yount (1984) 467 US 1025, 1031-35 [104 SCt 2885; 81 LEd2d 847] [“fixed opinion” prior to trial renders juror disqualified]; McDonough Power Equipment, Inc. v. Greenwood (1984) 464 US 548, 554 [104 SCt 845; 78 LEd2d 663]; Johnson v. Armontrout (8th Cir. 1992) 961 F2d 748; Winebrenner v. U.S. (8th Cir. 1945) 147 F2d 322, 328.)

(3) Permitting or encouraging the jurors to prematurely express an opinion about the case. (See Delaney v. U.S. (1st Cir. 1952) 199 F2d 107, 112-13; People v. Purvis (1963) 60 C2d 323, 340 fn 14 [“The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man …” ]; People v. Brown (1976) 61 CA3d 476 [expression of an opinion as to the guilt of the defendant before hearing all the evidence was prejudicial misconduct].)

(4) Failing to assure that the jurors fully understand the law stated in the jury instructions and fairly, impartially and accurately apply that law. (See Estelle v. McGuire (1991) 502 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood instructions]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444] [it is “the jury’s constitutional responsibility … not merely to determine the facts, but to apply the law to those facts …” ]; Sullivan v. Louisiana (1993) 508 US 275 [124 LEd2d 182; 113 SCt 2078] [improper instruction on burden of proof as structural error]; Wainwright v. Witt (1985) 469 US 412 [83 LEd2d 841; 105 SCt 844] [jurors must be willing and able to follow the judge’s instructions]; Johnson v. Armontrout (8th Cir. 1992) 961 F2d 748.)

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 7.7 Ex Parte Juror Contact.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by permitting or encouraging communication between the court and jury without the presence and/or participation of defense counsel and the defendant. (United States v. Gypsum Co. (1978) 438 US 422, 459-62 [98 SCt 2864; 57 LE2d 854].)

[See also FORECITE CG 1.3.]

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

Right To Individual Juror Determination.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by:

(1) Failing to assure that each individual juror fully and fairly deliberates and follows their conscientiously held beliefs in voting on a verdict during deliberations. (Allen v. U.S. (1896) 164 US 492 [17 SCt 154; 41 LEd 528]; People v. Gainer (1977) 19 C3d 835, 842-47 [judge must not admonish minority jurors to reconsider their position in light of the majority] [bias of even a single juror requires reversal]; U.S, v, Nelson (2nd Cir. 2002) 277 F3d 164 [single biased juror violated Sixth and 14th Amendments]; Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 750-51 [judge reminded jurors not to surrender their sincerely held beliefs under pressure from the majority]; see also Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 981; Dickson v. Sullivan (9th Cir. 1988) 849 F2d 403, 406 [even if “only one juror was unduly biased or improperly influenced (by exposure to facts not introduced in evidence, defendant) was deprived of his Sixth Amendment right to an impartial panel” of twelve unprejudiced jurors]; In re Hitchings (1993) 6 C4th 97.) “Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation.]” (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.)

(2) Failing to preclude the jurors from voting for a verdict which is contrary to their conscientiously held beliefs. (See 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’ ” ]; U.S. v. Mason (9th Cir. 1981) 658 F2d 1263, 1267-68; U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337; Allen v. U.S. (1896) 164 US 492, 501 [17 SCt 154; 41 LEd 528].)

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 7.9 Duty To Deliberate Fully And Fairly.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to assure the jurors deliberate with an open mind. (See e.g., People v. Cleveland (2001) 25 C4th 466.)

“Deliberations 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 C3d 687, 693; see also United States v. Symington (9th Cir. 1999) 195 F3d 1080, 1085 [trial court may not dismiss a deliberating juror if there is any reasonable possibility that the impetus for the dismissal stems from the juror’s views on the merits of the case].) In fact, the trial court has an affirmative duty to inquire into an allegation that a juror is refusing to deliberate and to discharge that juror if he or she is, in fact, refusing to engage in meaningful deliberations. (People v. Cleveland (2001) 25 C4th 466, 484-85; see also People v. Thomas (1984) 26 CA4th 1328, 1333 [trial court may properly dismiss juror for refusal to deliberate].) Hence, the jury should be “encouraged to discuss the case.” (Vomaska v. City of San Diego (1997) 55 CA4th 905, 913 [jurors should be “encouraged” to deliberate but no constitutional impairment or juror misconduct in civil case where jury rendered verdict after straw vote at beginning of deliberations]; see also People v. Thomas (1994) 26 CA4th 1328, 1332-33 [discharge of juror was proper where juror refused to deliberate based on uncooperative and closed-minded behavior during deliberations]; People v. Johnson (1993) 6 C4th 1, 21 [juror inattentiveness during trialis also grounds for dismissal].)

A juror should not be dismissed merely for expressing doubt about the sufficiency of the evidence. (See U.S. v. Brown (DC Cir. 1987) 823 F2d 591, 596.) Nor should a holdout juror be excused when the jury is otherwise deadlocked unless the juror has committed serious and willful misconduct. (See generally People v. Hamilton (1963) 60 C2d 105, 128.) Hence, dismissal of a juror is proper “only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution’s case.” (U.S. v. Thomas (2nd Cir. 1997) 116 F3d 606, 617; see also U.S. v. Brokemond (11th Cir. 1992) 959 F2d 206; U.S. v. Dunbar (5th Cir. 1979) 59 F2d 1340; U.S. v. Cook (5th Cir. 1978) 586 F2d 572.)

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 7.10 Juror Nullification.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

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The power of a jury to nullify (i.e., not follow) what it considers to be an unjust law has been recognized. (See Horning v. District of Columbia (1920) 254 US 135, 138 [41 SCt 53; 65 LEd2d 185] [“jury has the power to bring in a verdict in the teeth of both law and facts” ]; see also People v. Dillon (1983) 34 C3d 441, 490-93, Kaus, J., concurring; see also Commonwealth v. Fernette (MA 1986) 500 NE2d 1290, 1298.) “The nullification power is an historical prerogative of the jury … [and] a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.” (State v. Bonacorsi (NH 1994) 648 A2d 469, 470.) Nevertheless, the courts have declined to allow “explicit” instruction on nullification because it affirmatively invites the jury to disregard the law. (See Dillon, 34 C3d at 491; U.S. v. Manning (1st Cir. 1996) 79 F3d 212, 219; U.S. v. Desmarais (1st Cir. 1991) 938 F2d 347, 350; U.S. v. Bruce (7th Cir. 1999) 109 F3d 323, 327 [jury nullification is “not to be positively sanctioned by instructions” ]; U.S. v. Trujillo (11th Cir. 1983) 714 F2d 102, 105-06; U.S. v. Sloan (N.D. Ind. 1989) 704 FSupp 880, 884; Fernette, 500 NE2d at 1298.) Nor have the courts allowed argument to the jury regarding nullification. (U.S. v. Spulveda (1st Cir. 1993) 15 F3d 1161, 1190 [“neither the court nor counsel should encourage the jury to exercise this power” ].)

While courts do not generally authorize instruction on nullification in response to juror inquiry (see e.g., People v. Fernandez (1994) 26 CA4th 710, 713, fn 2), the jury should not be misled by affirmatively instructing it that there is no right to nullification. Instead, the court should explain to the jury that the judge is forbidden to instruct the jury on nullification and that the jury “must” acquit if they have a reasonable doubt as to guilt and “should” convict if the prosecution proves its case against the defendant. (See e.g., U.S. v. Spulveda (1st Cir. 1993) 15 F3d 1161, 1189-90.)