Brief Bank # B-800b (Re: F 17.41.1 n2 [Challenge To “Juror-Snitch” I. Introduction: Improper Chilling Effect On Deliberations].)
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NOTE: The text of the footnotes appears at the end of the document.
ALERT: Both People v. Williams (2001) 25 C4th 441 [106 CR2d 295] and People v. Cleveland (2001) 25 C4th 466 [106 CR2d 313] were decided subsequent to the writing of this brief.
THE COURT ERRED IN OVERRULING APPELLANT’S OBJECTION
TO ITS INSTRUCTION THAT THE JURORS HAD A DUTY TO
INFORM ON ONE ANOTHER
Over appellant’s objection, the court instructed the jury as follows:
“The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on any improper basis, it is the obligation of the other jurors to immediately advise the Court of that situation.”
(6 RT, p. 740; see CT, p. 687; CALJIC, No. 17.41. 1; 5 RT, pp. 641-643.) This instruction should not be given in any criminal trial. It improperly compromises the private and necessarily uninhibited character of jury deliberations, as well as constituting an impermissible anti-nullification instruction. As such, it violated, variously, the jurors’ right to freedom of speech and association (U.S. Const., Amend. 1; Cal. Const., Art. I, §§ 1, 2) [Footnote 1] and appellant’s rights to due process and to a jury trial (U.S. Const., Amends. V, VI, XIV; Cal. Const., Art. 1, § § 1, 7, 15, 16). The judgment must be reversed.
A. The Instruction Discourages Jurors’ Candid Exchange Of Views By Rendering The Privacy Of Jury Deliberations A Fiction
Perhaps the first thing to be observed about the instruction under challenge — a newly minted invention of the CALJIC committee for which the drafters mustered no authority (see 2 CALJIC (West Supp., January, 1999), p. 162) — is that it seems to be aimed at a nonexistent problem. That is, judging from the sheer number of cases in which the subject comes up, jurors both historically and in recent times have needed no coaxing to come forward, where appropriate, to report on their fellows’ — or even their own — inability or unwillingness to deliberate in a proper manner. (See, e.g., People v. Bradford (1997) 15 Cal.4th 1229, 1349-1350; People v. Haskett (1990) 52 Cal.3d 210, 226; People v. Burgener (1986) 41 Cal.3d 505, 516-517; People v. Collins (1976) 17 Cal.3d 687, 690; People v. Castorena (1996) 47 Cal.App.4th 1051, 1057; People v. Williams (1996) 46 Cal.App.4th 1767, 1780; People v. McNeal (1979) 90 Cal.App.3d 830, 835-836.) It is one thing for a court to respond to such a communication once made, however, and quite another to issue an advance solicitation. It is that difference that renders CALJIC No. 17.41.1 not only needless, but harmful.
The state and federal constitutions guarantee the privacy and secrecy of jury deliberations. (People v. Oliver (1987) 196 Cal.App.3d 423, 429; United States v. Brown (D.C.Cir. 1987) 823 F.2d 591, 596; accord, United States v. Symington (9th Cir. 1999) ___ F.3d ____, ____ [1999 Daily Journal D.A.R. 6295, 6297] (opn. not yet final); see also Pen. Code, § 167.) The purpose is to encourage the free, frank and uninhibited discussion necessary to the performance of the jury’s vital truth-seeking function. (See United States v. Thomas (2nd Cir. 1997) 116 F.3d 606, 618-619; accord, United States v. Symington, supra, 1999 Daily Journal D.A. R. at p. 6279.)
“‘Juror privacy is a prerequisite of free debate, without which the decision-making process would be crippled. The precise value of throwing together in a jury room a representative cross-section of the community is that a just consensus is reached through a thoroughgoing exchange of ideas and impressions. For the process to work according to theory, the participants must feel completely free to dissect the credibility, motivations, and just deserts of other people. Sensitive jurors will not engage in such a dialogue without some assurance that it will never reach a larger audience.’”
(Thomas, supra, 116 F.3d at pp. 618-619, quoting Note, Public Disclosures of Jury Deliberations (1983) 96 Harvard L.Rev. 886, 889; see People v. Collins, supra, 17 Cal.3d at p. 693 [importance of “personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint”].) CALJIC No. 17.41.1 chills this essential free discussion in advance, by putting jurors on notice that their every word may be reported to the trial court at any time by their fellow jurors in the event of even an imagined impropriety. This is a prospect likely to tempt jurors, especially “sensitive” ones, to forego their independence of mind and conceal even legitimate concerns they may have about the strength of the state’s case, rather than exercise the candor that is vital to the integrity of the deliberative process as constitutionally envisioned.
The purpose of the instruction, respondent will argue, is the quite proper one of alerting the trial court to situations where jurors are disregarding the law and exercising the controversial power of “jury nullification.” (See, e.g., People v. Cline (1998) 60 Cal.App.4th 1327, 1335.) Its wording, however — inviting jurors to report on one another for expressing an intention “to decide the case based on any improper basis” (CALJIC, No. 17.41. 1, emphasis added) — is patently overbroad for that objective. This language could be understood to include within its sweep any disagreement among jurors over the “proper” treatment of any and all evidence deemed determinative of the outcome: in other words, to include legitimate disputes about the merits of the case that can arise in any deliberation and which have no business being exposed to public view.
“Consider a case where, for example, a strong majority of the jury favors conviction, but a small set of jurors — perhaps just one — disagrees. The group of jurors favoring conviction may well come to view the ‘holdout’ or ‘holdouts’ not only as unreasonable, but as unwilling to follow the court’s instructions on the law.”
(United States v. Thomas, supra, 116 F. 3d at p. 622.) Clearly, to remove a juror in such a situation would be completely impermissible since it would deny the defendant the right to a unanimous verdict. (United States v. Symington, supra, 1999 Daily Journal D.A.R. at pp. 6296-6297; United States v. Thomas, supra, 116 F.3d at p. 621; United States v. Brown, supra, 823 F.2d at p. 596.) Yet, the challenged instruction invites reports of — leading inevitably to judicial inquiry into — just such types of disagreement.
Finally, even if its anti-nullification purpose is proper (but see, post, § B of the present Arg.), the instruction is of no use, since, should a juror bring the invited report, the trial court could not conduct the necessary follow-up inquiry without impermissibly compromising the secrecy of the deliberative process. While no California court has yet confronted this dilemma, those courts that have are unanimous that the possibility of jury nullification is a far lesser evil than the violation of juror secrecy, and that the “broad-ranging judicial inquisitions into the thought processes of jurors” such an inquiry would require are destructive of] the jury system itself.” (United States v. Thomas, supra, 116 F.3d at pp. 622-623; accord, United States v. Symington, supra, 1999 Daily Journal D.A.R. at p. 6297; see United States v. Brown, supra, 823 F.2d at p. 596 [”a court may not delve deeply into a juror’s motivations because it may not intrude on the secrecy of the jury’s deliberations”]; see also Evid. Code, § 1150 [barring evidence of juror thought processes].)
Given the – instruction’s complete inefficacy respecting its only arguably legitimate aim, and its dangerous capacity to chill and distort the deliberative process, it should be consigned to deserving oblivion.
B. The Instruction Is An Impermissible Anti-Nullification Instruction
CALJIC No. 17.41.1 also impermissibly infringes on the power of any juror or all of them to disregard the law in a given case and deliver a verdict in accord with their conscience. This power of “nullification” has been recognized since the earliest epochs of Anglo-American law. (See Bushell’s Case (1670) 124 Eng. Rep. 1006, 6 Howell’s State Trials 999; People v. Lem You (1893) 97 Cal. 224, 228, overruled on other gds. in People v. Kobrin (1995) 11 Cal.4th 416, 427, fn. 7; People v. Dillon (1983) 34 Cal. 3d 441, 490 and fn. 1 (conc. opn. of Kaus, J.).) While it is well settled that a defendant is not entitled to have jurors affirmatively instructed about this power (see, e.g., People v. Nichols (1997) 54 Cal.App.4th 21, 24-26; United States v. Dougherty D.C.Cir. 1972) 473 F.2d 1113, 1136), neither may a court instruct ajury at a criminal trial that they do not have it. (See United States v. Sepulveda (Ist Cir. 1993) 15 F. 3d 1 161, 1190 [instruction that jury “should” convict if government has proven its case, and “must” acquit if not, properly “left pregnant” the possibility of nullification]; State v. Thomas (1991) 161 Wis.2d 616, 631 [468 N.W.2d 729] [same should/must distinction “implicit” in Sixth Amendment jury-trial right]; see also People v. Sanchez (1997) 58 Cal.App.4th 1435, 1452-1457 (dis. opn. of Johnson, J.).) [Footnote 2] Since the only message inferable from an instruction inviting jurors to report their fellow’ intention not to apply the law as received from the court is that such an intended course would be beyond the jury’s recognized powers, it may not be given.
C. The Error Requires Reversal Of The Judgement
As set forth above, the giving of this instruction tainted the entire jury deliberation process. As such, it amounted to a “structural” defect, for which reversal of the judgement is required without resort to a prejudice analysis. (Arizona v. Fulminante (1991) 499 U.S. 279, 309, 113 L.Ed.2d 302, 111 S.Ct. 1246; see Sullivan v. Louisiana (1993) 508 U.S. 275, 280. 124 L.Ed.2d 182, 187-190, 113 S.Ct. 2078 [reversal required where “there has been no jury verdict within the meaning of the Sixth Amendment”].) Appellant’s convictions must be reversed.
Footnote 1: Appellant has standing to assert the constitutional rights of the citizens who served on his jury. (See Powers v. Ohio (1991) 499 U.S. 400, 415, 113 L.Ed.2d 411, 111 S.Ct. 1364; People v. Tapia (1994) 25 Cal.App.4th 984, 1029.)
Footnote 2: The majority holding in People v. Sanchez, supra, that a trial court may, during deliberations, dismiss jurors whom it finds intend to disobey the law, has been thrown into doubt by the California Supreme Court’s grant of review in at least three cases on the propriety of such, or similar, dismissals (see In re Odam (SO77469) rvw. gtd. May 12, 1999; People v. Metters (SO69442) rvw.gtd. June 10, 1998; People v. Williams (S066106) rvw. Gtd. Feb. 18, 1998), leaving open the possibility of the vindication of Justice Johnson’s cogent dissent.