SERIES 100 PRETRIAL INSTRUCTIONS
F 100.6 VOIR DIRE ISSUES AND INSTRUCTIONS
F 100.7 DELIBERATIONS
TABLE OF CONTENts
F 100.6 VOIR DIRE ISSUES AND INSTRUCTIONS
F 100.6 Inst 1 Curative Admonition During Voir Dire [Reserved]
F 100.6 Inst 2 Juror Misconceptions About Parole From Pre-1978 Cases Expressed During Voir Dire [Reserved]
F 100.6 Inst 3 Commutation Of LWOP Sentence Is Rarely If Ever Granted [Reserved]
F 100.6 Inst 4 “Death Is Worse Than LWOP” [Reserved]
F 100.6 Note 1 Opening Argument Before Voir Dire
F 100.7 DELIBERATIONS
F 100.7 Inst 1 Jurors Need Not Reach A Verdict
F 100.7 Inst 2 (a-d) Juror Duties: Individual Consideration
Return to Series 100 Table of Contents.
F 100.6 Inst 1 Curative Admonition During Voir Dire [Reserved]
F 100.6 Inst 2 Juror Misconceptions About Parole From Pre-1978 Cases Expressed During Voir Dire[Reserved]
F 100.6 Inst 3 Commutation Of LWOP Sentence Is Rarely If Ever Granted [Reserved]
F 100.6 Inst 4 “Death Is Worse Than LWOP” [Reserved]
F 100.6 Note 1 Opening Argument Before Voir Dire
See California Rules of Court, Rule 2.1034.
F 100.7 Deliberations
F 100.7 Inst 1 Jurors Need Not Reach A Verdict
*Add to end of CC 100, paragraph 5, as follows:
Alternative a [CJ 17.40 Format]:
After you have heard the arguments and instructions, you will go to the jury room to deliberate and attempt to reach a decision, if you can.
Alternative b [CC 3550 Format]:
After you have heard the arguments and instructions, you will go to the jury room to deliberate and try to agree on a verdict, if you can.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – It is improperly coercive to imply that the jurors are obligated to reach “a decision” or “decide” the case. (See People v. Wattier (1996) 51 CA4th 948 [verdict not coerced because, in part, the court had instructed the jury, “Each of you must consider the evidence for the purpose of reaching a verdict if you can do so” (emphasis in original)]; see also People v. Anderson (1990) 52 C3d 453, 469; Jiminez v. Meyers (9th Cir. 1993) 40 F3d 976, 978; U.S. v. Amaya (5th Cir. 1975) 509 F2d 8; ABA §15-4.4 [agreement should be reached… “if it can be done without violence to individual judgment”]; CALJIC 17.40 [“Each of you must consider the evidence for the purpose of reaching a verdict if you can do so”]; People v. Anderson (2007) 152 CA4th 919, 929 [approving “if you can” language in CC 3550 as assuming jurors understood that they do not have to reach a verdict].)
In other words, in the event of juror disagreement they are not “obligated … to convince one another that one view [is] superior to another.” (Smalls v. Batista (2nd Cir. 1999) 191 F3d 272, 278; Weaver v. Thompson (9th Cir. 1999) 197 F3d 359 [bailiff improperly responded “yes” to juror question as to whether they must reach a verdict on all counts].)
“Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation.]” (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.) This means that each individual juror must fully and fairly deliberate and follow their conscientiously held beliefs in voting on a verdict during deliberations. (Allen v. U.S. (1896) 164 US 492, 501 [17 SCt 154; 41 LEd 528]; People v. Gainer (1977) 19 C3d 835, 842-47 [judge must not admonish minority jurors to reconsider their position in light of the majority]; Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 750-51 [judge reminded jurors not to surrender their sincerely held beliefs under pressure from the majority]; see also Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 981; In re Hitchings (1993) 6 C4th 97 [bias of even a single juror requires reversal].)
See also FORECITE F 100.7 Inst 2; FORECITE PG IX(J).
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 10.2 [Judge’s Duties: Deadlocked Jury]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 1.00k.
F 100.7 Inst 2 (a-d) Juror Duties: Individual Consideration
*Add to CC 100 as follows:
Alternative a:
Whenever I use the collective “you” in referring to you, the jury, I am referring to both the jury as a whole and to each individual juror.
For example, I will instruct you as to what the prosecution must prove for “you” to find the defendant guilty. In so doing, I am referring both to what the jury as a whole must find to convict and to what each individual juror must find for themselves before voting [to convict] [for guilt] or in favor of any special allegations charged by the prosecution.
Alternative b:
If any member of the jury has any reasonable doubt that the defendant committed the offense charged, or any reasonable doubt upon any single fact or element necessary to constitute the offense charged as defined for you by the court, then it is that juror’s duty to give the defendant the benefit of the doubt and vote for a verdict of not guilty.
[Source: South Dakota Pattern Jury Instructions—Criminal, SDCL 1-19-1. [Jury-Findings—Statement Of Element] (State Bar of South Dakota, 2000).]
Alternative c:
It is not necessary that a reasonable doubt be a collective doubt shared by all or a majority of the jurors. If a reasonable doubt is present in the mind of only a single juror, then that juror must vote to acquit.
[Cf. Wharton’s Criminal Evidence (West, 14th ed. 1986) §2:3, p. 29.]
Alternative d:
As I told you before, in the end, your vote must be exactly that—your own vote.
[Source: 6th Circuit Pattern Jury Instructions—Criminal 9.04 [Deadlocked Jury] & 5 (1991).]
Points and Authorities
This instruction is required by the federal constitutional rights to due process and fair trial by jury (5th, 6th and 14th Amendments.) “Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation.]” (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.) This means that each individual juror must fully and fairly deliberate and follow their conscientiously held beliefs in voting on a verdict during deliberations. (Allen v. U.S. (1896) 164 US 492 [17 SCt 154; 41 LEd 528]; People v. Gainer (1977) 19 C3d 835, 842-47 [judge must not admonish minority jurors to reconsider their position in light of the majority] [bias of even a single juror requires reversal]; U.S, v, Nelson (2nd Cir. 2002) 277 F3d 164 [single biased juror violated 6th and 14th Amendments]; Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 750-51 [judge reminded jurors not to surrender their sincerely held beliefs under pressure from the majority]; see also Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 981; Dickson v. Sullivan (9th Cir. 1988) 849 F2d 403, 406 [even if “only one juror was unduly biased or improperly influenced (by exposure to facts not introduced in evidence, defendant) was deprived of his Sixth Amendment right to an impartial panel” of twelve unprejudiced jurors]; In re Hitchings (1993) 6 C4th 97.)
Each juror’s responsibility to individually evaluate and decide the issues presented by the evidence is fundamental. “‘Because a defendant … has a right to a unanimous verdict of 12 impartial jurors [citations], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.’ [Citations.]” (People v. Holloway (1990) 50 C3d 1098, 1112; see also PC 1163 [“When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation” ]; People v. McIntyre (1990) 222 CA3d 229, 232-33 [verdict of guilt may not be returned if even a single juror believes that the defendant was entrapped]; Davis v. Georgia (1976) 429 US 122 [50 LEd2d 339; 97 SCt 399] [holding death sentence unconstitutional where a single juror excluded in violation of Witherspoon v. Illinois (1968) 391 US 510 [20 LEd2d 766; 88 SCt 1770]; People of Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15 [each juror must be able to individually read and understand the instructions].)
Accordingly, the instructions should, as much as possible, avoid using the collective “you” and instead frame the principles in terms of individual juror responsibility. (See e.g., CALJIC 17.40; CALCRIM 3550; but see People v. Ibarra (2007) 156 CA4th 1174, 1197-98.)
See also FORECITE F 100.7 Inst 1.
STRATEGY NOTE: In light of People v. Ibarra (2007) 156 CA4th at 1197-98 it may be appropriate to address this issue during argument. (See FORECITE F 200.5 Inst 2 [Counsel’s Argument That A Specific Rule Is Included In A General Instruction] and F 200.5 Inst 3 [Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.8 [Right To Individual Juror Determination]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
