Return to CALJIC Part 14-17 – Contents
F 17.40 n1 Individual Opinion Required: Duty To Deliberate: Informing Jury As To Possibility Of A Hung Jury.
In People v. Hines (97) 15 C4th 997, 1069 [64 CR2d 594] the defendant argued that the trial court erred in refusing an instruction which informed the jury that the possibility of a hung jury is an “inevitable by-product” of the unanimous jury requirement. The Supreme Court rejected this argument, observing that it has never suggested that trial courts should give such an instruction on request. However, in Hines the court did orally supplement its written instructions with the following comments which incorporated the essence of the defendant’s requested instruction: “Nothing I have said requires you to reach a unanimous verdict. That is, before you reach a verdict, you would be required to be unanimous. We are not going to keep you here forever until you arrive at a unanimous verdict. We expect you to do your best to seek to achieve a verdict, if you can.” Moreover, CJ 17.40 includes the language “if you can” in reference to reaching a verdict. Accordingly, an instruction in the language of the trial court’s oral instruction in Hines would be a correct statement of the law.
F 17.40 n2 Duty To Deliberate: Jury Should Be Encouraged To Discuss The Case.
“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 (76) 17 C3d 687, 693 [131 CR 782].) 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 [106 CR2d 313]; see also People v. Thomas (84) 26 CA4th 1328, 1333 [32 CR2d 177] [trial court may properly dismiss juror for refusal to deliberate].) Accordingly, the jury should be “encouraged to discuss the case.” (Vomaska v. City of San Diego (97) 55 CA4th 905 [64 CR2d 492] [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 (94) 26 CA4th 1328, 1332-33 [32 CR2d 177] [discharge of juror was proper where juror refused to deliberate based on uncooperative and closed-minded behavior during deliberations].)
F 17.40 n3 Dismissal Of Juror For Failure To Deliberate.
A trial court, if put on notice that a juror may not be participating in deliberations, should conduct “‘whatever inquiry is reasonably necessary to determine’ whether such grounds exist [citation] and to discharge the juror if it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate. [Citations.] (People v. Cleveland (2001) 25 C4th 466, 484 [106 CR2d 313]; but see People v. Karapetyan (2003) 106 CA4th 609 [130 CR2d 849] [juror who was justifiably confused by the trial court’s erroneous instruction on provocative act did not refuse to deliberate when he changed his mind as to the verdict, and court abused discretion in discharging him]; compare federal cases cited in Cleveland which preclude dismissal for failure to deliberate if there is “any reasonable possibility that the impetus for a juror’s dismissal stems from the juror’s views on the merits of the case.”)
F 17.40 n4 Jurors Must Only Discuss Case when All Jurors Are Together In The Jury Room.
The jury should be instructed that it may discuss the case only when all twelve jurors are present in the jury room, that deliberations must cease when any jurors are absent, and that during the recess the jurors should refrain from discussing the case with anybody at home, anybody on the jury, court staff, members of the public or anybody at all until all jurors have returned to the jury room. (People v. Morales (89) 48 C3d 527, 564 [257 CR 64]; Griesel v. Dart Industries, Inc. (79) 23 C3d 578, 584 [153 CR 213] [a verdict cannot stand unless the jurors “reach their consensus through deliberations which are the common experience of all of them”]; see also Giouzelis v. McDonald (81) 119 CA3d 436, 444 [174 CR 58].)
F 17.40 n5 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 17.40 n6 Discharge Of Juror: Applicability Of Double Jeopardy.
(See People v. Hernandez (2003) 30 CA4th 1 [131 CR2d 514] [where defendant’s conviction is reversed for improper discharge of single juror, double jeopardy principles do not bar retrial].)
CAVEAT: When the issue is an improper discharge of the jury as a whole, then the “legal necessity” test applies; and when there’s no legal necessity, double jeopardy bars retrial. (E.g., People v. Superior Court (Marks) (1991) 1 C4th 56, 77 fn. 20 [2 CR2d 389].) That rule also applies in variant situations; for example, a discharge of the jury in violation of a defendant’s right to counsel, which violation was not due to legal necessity, also bars retrial. (Clemensen v. Municipal Court (1971) 18 Cal.App.3d 492, 501-03 [96 CR 126].) Nothing in Hernandez works against that; in fact, Hernandez expressly distinguishes between discharge of the entire jury, and discharge of a single juror.
F 17.40 n7 Talking With Discharged Juror Prohibited By California Rules Of Professional Conduct.
California’s ethics rules provide: “During triala member connected with the case shall not communicate directly or indirectly with any juror.” (Rules of Professional Conduct, rule 5-320(B).) And, subdivision (I) of the same rule states: “For purposes of this rule, ‘juror’ means any empaneled, discharged, or excused juror.”
Accordingly, it would seem that talking with a discharged juror is prohibited until after trial. (See Terri Towery, Nuts & Bolts, CPDA CLARAWEB Forum January 2008.)
Duty to Deliberate
*Add the following to CJ 17.40:
Your only interest is to determine whether the prosecution has proved the defendant guilty beyond a reasonable doubt.
Points and Authorities
See Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 10, p. 17.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C); see also CJ 2.11.5.]
Duty to Deliberate: Impropriety of Juror-on-Juror Coercion
*Add to CJ 17.40:
During your deliberations, you may become engaged in vigorous, even heated, debate or discussion. Such debate or discussion is proper. However, any verdict must be the product of the free and voluntary decision of each individual juror. Therefore, you are forbidden from engaging in any coercive or threatening conduct during deliberations which may cause another juror to vote against his or her will or contrary to his or her true belief. If such coercive or threatening conduct occurs during the deliberations it should immediately be reported to me or the bailiff.
Points and Authorities
California courts have been reluctant to conduct post-verdict inquiry into juror-on-juror coercion because EC 1150 precludes inquiry into the jurors’ subjective thought processes. (See People v. Cleveland (2001) 25 C4th 466, 484 [106 CR2d 313]; see also People v. Keenan (88) 46 C3d 478, 541-42 [250 CR 550].) However, the fact remains that it would be improper juror misconduct for one juror or group of jurors to coerce another juror or jurors to vote against the jurors’ will or belief. (See e.g., People v. Bradford (97) 15 C4th 1229, 1352 [65 CR2d 145] [coercion from “hostile jurors” averted by re-reading instructions on duty to deliberate and advising jurors to put aside any hard feelings and resume deliberations]; People v. Perry (1904) 144 C 748 [78 P 284] [juror oath requires juror to act on his or her own judgement].) For example, in People v. Castorena (96) 47 CA4th 1051, 1065-66 [55 CR2d 151] a “holdout” juror (Patricia S.) was excused during deliberations after being accused of refusing to deliberate by the other jurors. In response to the accusation, Patricia S. had sent a note to the judge denying the accusation of failing to deliberate and accusing another juror (Denise H.) of attempting to “intimidate” Patricia S. into changing her mind, refusing to report to the judge that the jury was “hung” and threatening to replace Patricia S. with an alternate juror. The court of appeal concluded that the alleged conduct of Denise H. provided evidence of “juror misconduct on the part of Denise H.” which, together with Patricia S.’s other statements, obligated the trial judge to conduct further inquiry. (Castorena, 47 CA4th at 1066; Vomaska v. City of San Diego (97) 55 CA4th 905, 912 fn 12 [64 CR2d 492] [implying that overt conduct or statements showing jurors were pressured to close deliberations would be misconduct]; People v. Lavender (86) 502 NYS2d 439, 502 [503 NE2d 121] [conviction reversed where coercion, harassment and intimidation was revealed prior to verdict]; Wharton v. People (39) 104 Colo 260 [90 P2d 615] [death sentence reversed where majority pressured holdout juror to vote for death]; cf., People v. Mc Neal (79) 90 CA3d 830, 838-39 [153 CR 706] [evidence that juror may be under “duress” from outside influences requires inquiry by trial court].) Indeed, Keenan did not dispute that juror-on-juror coercion would be juror misconduct if it was shown by substantial, competent evidence. Rather, Keenan merely held that the admissible evidence was not substantial in Keenan’s case. (See also FORECITE PG IX(J)(10).)
Hence, an instruction admonishing the jurors against coercive practices and encouraging the jurors to report such misconduct is appropriate. In fact, such an instruction would seem to be especially efficacious due to the rule against post-verdict inquiry into the impact of such misconduct. [However, if jury misconduct is reported during deliberations, EC 1150 does not preclude inquiry into the impact of the misconduct. (See People v. Beeler (95) 9 C4th 953, 1016 [39 CR2d 607].)]
Moreover, failure to give the requested instruction, by itself, and in combination with other errors, will: (1) preclude a full, fair, reliable and impartial determination by all jurors, based only upon properly admitted evidence, of all elements of the charge under the correct burden of proof; (2) impair the defendant’s ability to defend against the charges and (3) produce a fundamentally unfair and unreliable verdict and sentence. Therefore, the defendant’s constitutional rights to due process, compulsory process and trial by jury and to be free from cruel and unusual punishment require that the instruction be given. (U.S. Const., 5th, 6th, 8th & 14th Amendments; Cal. Const., Art. I, §§ 15 & 16; see discussion and authorities in FORECITE (2d Ed 1996) PG VII(C)(1) & (2) incorporated herein by reference.) To the extent the proposed instruction is required by state law, failure to give it would violate the Due Process Clause of the 14th Amendment by arbitrarily denying defendant a state created right. (See e.g., Hicks v. Oklahoma (80) 447 US 343, 346 [65 LEd2d 175; 100 SCt 2227].) [In capital prosecutions the proposed instruction is required under all of the above constitutional provisions, as well as the 8th and 14th Amendments to the federal constitution, which require that the guilt phase determinations be fair and reliable. (See e.g., Beck v. Alabama (80) 447 US 625 [65 LEd2d 392, 403; 100 SCt 2382].)]
See Annotation, Impeachment of verdict by juror’s evidence that he was coerced or intimidated by fellow juror, 39 ALR4th 800, and Later Case Service.
Duty To Deliberate: Juror May Think About The Case And
Make Notes While Deliberations Are In Recess
*Add to CJ 17.40:
You are not prohibited from individually contemplating the evidence while separated when deliberations are recessed. Additionally, you may make notes of thoughts and ideas which you formulate while separated.
Points and Authorities
Bormann v. Chevron USA, Inc. (97) 56 CA4th 260, 263-64 [65 CR2d 321] held that it is permissible for jurors to individually contemplate the evidence and the outcome of the case while separated and to make notes regarding ideas which they wish to share in the deliberations with the other jurors.