F 17.43

F 17.43 n1 Jury Deliberations: Juror Inquiries.

In its Jan. 1994 pocket part, CALJIC added a new instruction informing the jury that any question or request during deliberations should be submitted to the court on “a form that will be provided.” (No form is provided by CALJIC, but see FORECITE form at FORECITE F 17.43a.) This instruction is deficient because, with exception of a read-back of testimony, it fails to specifically inform the jury about the requests it may make. For example, the jury should be informed of its right to have exhibits sent into the jury room, to request a read-back of the arguments of counsel, clarification or amplification of the instructions and a view of the scene. (See FORECITE F 17.50a.) While the read-back of the arguments, clarification of the instructions and view of the scene are discretionary with the trial court, there is certainly no reason why the jury should not be informed of their right to make such a request.

CJ 17.43 admonishes the jury to continue deliberating while awaiting a response to their request. However, if the jury’s request is prompted by confusion, misunderstanding regarding a charge, it would impair the reliability of the verdict to permit continued deliberation upon that charge until such confusion, misunderstanding or lack of recall is remedied.

F 17.43 n2 Adjournment Of Deliberations As Denial Of Fair Trial.

Mid-deliberation adjournment of further deliberations for 11 days, without good cause and despite the availability of alternates, deprived defendant of a fair trial. (People v. Santamaria (91) 229 CA3d 269, 278 [280 CR 43].)

F 17.43 n3 Court Must Inform Jury It May Request Readback Of Testimony.

See FORECITE F 1.05 n4.

F 17.43a

Juror Inquiry Form

*Per CJ 17.43:

People of the State of California

v. No. _____________

____________________________

TO THE JURY: Please submit this request form to the Judge or Bailiff. Do not continue deliberations on any charge or issue related to this request until the Court has responded to the request.

The jury hereby requests:

The following Exhibits:

___________________________________________________

Written copies of the jury instructions.

Clarification and/or amplifications of the following instructions:

No. _____ regarding: _____________________________

Read-back of the following testimony:

___________________________________________________

Read-back of the prosecution arguments:

___________________________________________________

Read-back of the defense arguments:

___________________________________________________

A physical view of the:

Scene of the crime

Other: _________________________________________

Date: __________ Signed: ____________________________

Time: __________ Print Name: _______________________

CAVEAT TO THE BAILIFF AND JUDGE:

Counsel should be notified before responding to any jury requests.

F 17.43b

Jury Inquiry During Deliberation: Suspension Of Deliberations

*Modify CJ 17.43 as follows: [added language is capitalized; deleted language is between << >>]:

<<Continue deliberating until you are called back into the courtroom.>> DO NOT CONTINUE DELIBERATIONS UNTIL YOU HAVE RECEIVED A RESPONSE TO YOUR INQUIRY.

CJ 17.43 admonishes the jury to continue deliberating while awaiting a response to their request. However, if the jury’s request is prompted by confusion or misunderstanding regarding a charge, or lack of recall as to material evidence, it would impair the reliability of the verdict to permit continued deliberation upon that charge until such confusion, misunderstanding or lack of recall is remedied.

People v. McCleod (6/18/97, D025447) 55 CA4th 1205, 1220 [64 CR2d 545] suggested that deliberations could be stopped at counsel’s request pending resolution of a jury inquiry. Hence, counsel should be able to request the above modification of CJ 17.43 to preclude the jury from deliberating and returning a verdict before the inquiry is answered.

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]

F 17.43c

Juror Inquiry:

Any Juror May Communicate With The Court At Any Time

*Add to CJ 17.43 and to Preliminary Pretrial Instruction:

It is not necessary that any jury communication be from the jury as a whole or be sent through the jury foreperson. Any juror may submit an inquiry to the court at any time by submitting a note to the bailiff or otherwise indicating to the bailiff that communication with the court is necessary.

Points and Authorities

CJ 17.43 gives the impression that the jury as a whole may submit an inquiry to the court during deliberations. However, it should be the right of any individual juror to communicate with the court at any time throughout the trial. Such a procedure is necessary to assure that the court is fully informed of any matter which could potentially impact the fairness and reliability of the proceeding such as juror misconduct. It is also necessary to empower each individual juror to protect against improper coercion by the other jurors. (See also FORECITE F 17.40b.)

STRATEGY NOTE: Counsel will have to evaluate the risk that a “hold-out” juror may be dismissed if, in response to a juror complaint, the majority accuses the juror of nullification (voting to acquit notwithstanding the instructions). (See FORECITE F 17.40 n3 and F 17.41.1 n2.)

CALCRIM INSTRUCTION ON THIS POINT: See CALCRIM 3550 [Pre-Deliberation Instructions].