It is beyond dispute that it is improper and prejudicial to permit the jurors to consider the fact that the defendant was previously tried and convicted for the same allegations. For example, in People v. Kessler (1963) 221 Cal.App.2d 187, 191, the court concluded that the unnecessary calling and identifying of a probation officer as a witness as an indirect method of using and referring to defendant’s former trial: “Unquestionably…denied [defendant] a fair trial.”
Juror exposure to information of the adverse result of a previous trial creates a presumption that prejudice had been generated by such conduct. (See Holmgren v. U.S. (1910) 217 US 509, 522 [30 SCt 588; 54 LEd2d 861]; see also Fullwood v. Lee (4th Cir. 2002) 290 F3d 663 [jury awareness that previous penalty verdict had been reversed on a “technicality” provided the basis for investigation of a potential jury misconduct claim].) Hence, every effort should be made to prevent the jury from learning about the prior trial and/or verdict.
Juror consideration of extraneous evidence regarding the result of a prior trial constitutes consideration of “testimonial assertions of persons whom defendant obviously had no opportunity to question.” (People v. Modesto (1967) 66 Cal.2d 695, 715.) In such a case the prior jurors are “enlisted as highly persuasive witnesses for the prosecution, witnesses whom the defendant could neither confront nor cross-examine.” (Ibid.) Hence, juror consideration of such extraneous evidence violates the defendant’s state (Article I §§15 and 16) and federal (6th and 14th Amendments) constitutional rights to confrontation. (See Pointer v. Texas (1965) 380 US 400; see also U.S. v. Bagley (1985) 473 US 667; Davis v. Alaska (1974) 415 US 308; Smith v. Illinois (1968) 390 US 129; Brookhart v. Janis (1966) 384 US 1.)
Reference to a former verdict is also prohibited by Penal Code 1180. (See People v. Peckham (1967) 249 Cal.App.2d 941, 946; see also People v. Burgener (2003) 29 C4th 833 [“proper solution” to potential prejudice from a previous trial is to “exclude any reference to the prior verdict”].)
Compare People v. Bloom (Apr. 21, 2022, S095223) [pp. 23-24]:
[Bloom] contends that the prosecution improperly asked questions that either obliquely referred to, or solicited responses that referred to, Bloom’s prior incarceration. But contrary to Bloom’s arguments, none of these references violated either Penal Code section 1180, which forbids references to former verdicts or findings, or his due process rights. None of the references to witnesses’ prior testimony directly revealed the verdict reached in Bloom’s prior trial. Nor did they encourage the jury to draw inferences that risked “implying prior criminality,” thus “prejudicing] defendant in the eyes of the jury.” (People v. Kessler (1963) 221 Cal.App.2d 187, 192.) It is true that the references would have led jurors to assume Bloom had previously been tried and that he had been detained before the retrial, but as both sides in the case acknowledged, that information was inevitably going to come out and on its own raised no unacceptable risk of prejudicing Bloom in the eyes of the jury.
SAMPLE INSTRUCTION # 1:
You may hear reference to a previous trial of this case. A previous trial did occur. But the defendant and the government are entitled to have you decide this case entirely on the evidence that has come before you in this trial. You should not consider the fact of a previous trial in any way when you decide whether the government has proven, beyond a reasonable doubt, that the defendant committed the crime.
[Source: 1st CIRCUIT PATTERN JURY INSTRUCTIONS – CRIMINAL 1.03 [Previous Trial] (1998).]
SAMPLE INSTRUCTION # 2:
You have heard evidence that the defendant has been tried before. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. You are not to consider the fact of a previous trial in deciding this case.
[Source: 9th CIRCUIT MODEL JURY INSTRUCTIONS – CRIMINAL 2.14 [Defendant’s Previous Trial] (2000).]
SAMPLE INSTRUCTION # 3:
During the course of this trial, you have heard that the defendant was on trial before. That is true. The defendant and the government are entitled, however, to have you decide this case entirely on the evidence that has come before you in this trial. You should not consider the fact of a previous trial in any way when you decide whether the government has proved beyond a reasonable doubt, that the defendant committed the crime.
[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 14 [Defendant’s Previous Trial: Jury Not To Consider] (1988).]
SAMPLE INSTRUCTION # 4:
The defendant has been tried before. However, this fact must not enter into or influence your deliberations in any way.
[Cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 1.06 [Retrial of Case] (Bar Association of the District of Columbia, 4th ed. 1993).]
SAMPLE INSTRUCTION # 5:
The case has been tried before. It has been submitted to you in this second trial as a result of proper legal procedures. The fact that there has been a previous trial, and the legal reasons why the case is being tried again, have no bearing whatever upon the issues presented to you or upon the decision you face.
To you this is a new case, and you must treat and consider it as such. Do not speculate about the previous trial, nor allow it to affect your consideration of this case.
[Cf. Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case (New York) 4:71 [General Instructions-Retrial] (West, 1999).]
SAMPLE INSTRUCTION # 6:
You have heard evidence that there was a previous trial of the defendant(s) for the crime(s) charged here. However, you must decide this case solely on the evidence presented to you in this trial.
Do not consider the fact of a previous trial in any way when you decide if the prosecution has proved the defendant guilty beyond a reasonable doubt.
[Cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS – CRIMINAL SDCL 4-1-6 (State Bar of South Dakota, 2000).]
SAMPLE INSTRUCTION # 7:
You have heard references to a previous trial of this case. Do not in any manner consider this fact or speculate as to the reason why the case is being tried again.
[Cf. CRIMINAL JURY INSTRUCTIONS – NEW YORK, CJI 5.40 [Reference From Prior Trials] (The New York Office of Court Administration, 1983).]