Dismissal of Deliberating Juror: “Great Caution” and “Heightened Standard of Review” are Required
August 20th, 2020

A trial court may dismiss a juror if the court finds the juror is “unable to perform his or her duty.” (PC 1089; People v. Armstrong (2016) 1 C5th 432, 450.) Dismissal may be appropriate, for example, when a juror is emotionally unable to continue or expresses a fixed conclusion at the beginning of deliberations and refuses to engage with other jurors. (See People v. Cleveland (2001) 25 C4th 466, 474, 475.)

“Great caution is required when deciding to excuse a sitting juror.” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 71.) If a juror’s willingness or ability to continue deliberating is unclear, the court must inquire further before dismissing the juror. (Shanks v. Department of Transportation (2017) 9 Cal.App.5th 543, 551-557.) The inquiry must be sufficient to determine the facts that demonstrate a juror’s ability or inability to deliberate (People v. Burgener (1986) 41 Cal.3d 505, 519,) and may not assume the worst about a juror without giving her an opportunity to explain herself. (People v. Compton (1971) 6 Cal.3d 55, 60; Shanks, supra, 9 Cal.App.5th at 556.)

The CSC has adopted a heightened standard of review that protects the defendant’s fundamental rights to due process and a fair trial. (Armstrong, supra, 1 Cal.5th at 450; Cal. Const., art. I, § 16 [trial by jury is an “inviolate right”].) The juror’s inability to perform his or her duty must appear in the record as a “demonstrable reality.” (Ibid.) Our Supreme Court has emphasized that this test is “more comprehensive and less deferential” than the substantial evidence test. (Id. at 451.)


In People v. Jones (June 15, 2020, A155720) ___ Cal.App.1st ___ [pp. 6-7] the court dismissed Juror 10 because she “expressed … an inability to continue deliberating based upon, not so much the information but … in many ways the way in which it was presented to her. She indicated that she felt that she was being bullied. …”  The reviewing court reversed.  “The juror’s inability to perform his or her duty must appear in the record as a ‘demonstrable reality.’”  The evidence did “not meet the heightened standard. Juror No. 10 never requested to be discharged, nor did she ever say she was unwilling or unable to continue deliberating. … The court never asked her directly whether she could continue. Instead, the court asked her if it would be ‘very difficult’ for her to continue. At best, the question is ambiguous, which is insufficient. … The dismissal of Juror No. 10 on an ambiguous record is particularly problematic because she had indicated that she was ‘having problems’ with the elements for the murder charges.”

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