SERIES 100 PRETRIAL INSTRUCTIONS
F 101.1 MISCELLANEOUS
TABLE OF CONTENTS
F 101.1 Inst 1 Reference To Juror By Number Without Showing Of Good Cause Under CCP 237 (Los Angeles County Procedure)
F 101.1 Inst 2 Reference To Juror By Number Based On Showing Of Good Cause Under CCP 237
F 101.1 Inst 3 Jurors Do Not Have To Reach A Verdict
F 101.1 Inst 4 Admonition Against Consumption Of Alcohol
Return to Series 100 Table of Contents.
F 101.1 Inst 1 Reference To Juror By Number Without Showing Of Good Cause Under CCP 237 (Los Angeles County Procedure)
*Add to CC 101:
The use of your juror identification numbers, rather than your names, is a [routine] [normal] procedure which is required in all cases [to protect you from unwarranted intrusions from the media] and has nothing to do with the defendant[s] or this case.
You may not consider the use of this procedure for any purpose or draw any inferences from it at all. Do not consider it as evidence of anything and do not permit it to enter into your view of the evidence or your later deliberations. Such procedures should have no bearing on your determination of whether or not the defendant has been proven guilty beyond a reasonable doubt.
Points and Authorities
Propriety Of Instruction Stating That Anonymity Is A Routine Or Normal Procedure—People v. Goodwin (1997) 59 CA4th 1084, 1091 fn 3 suggested that the jurors should be admonished that the juror anonymity procedure is required in all criminal cases and has nothing to do with any particular defendant. (See also People v. Thomas (Regis Deon) (2012) 53 CA4th 771, 787-88 [judge instructed juror that the procedure was necessary because of media interest in the case]; People v. Hernandez (2011) 51 CA4th 733, 744 [“We emphasize that the trial court should give such a cautionary instruction when the defendant requests it, or should explain on the record the reasons why it has been refused.”]; People v. Stevens (2009) 47 CA4th 625, 642 [same]; People v. Hannon (1977) 19 CA3d 588, 600; Illinois v. Allen (1970) 397 US 337, 344 [25 LEd2d 353; 90 SCt 1057]; U.S. v. Scarfo (3rd Cir. 1988) 850 F2d 1015, 1021-1023.) Failure to do so could implicate the defendant’s right to a fair trial because the jury could speculate that there was some reason related to the defendant’s dangerousness which required the jurors’ names to be kept secret. (Goodwin, supra, at 1091, fn 3; U.S. v. DeLuca (1st Cir. 1998) 137 F3d 24 [district court properly diverted attention from its safety concerns by telling the jurors that their identities would be kept secret to ensure that no extra-judicial information would be conveyed to them]; see also People v. Ayala (2000) 23 CA4th 225; U.S. v. Tutino (2nd Cir. 1989) 883 F2d 1125.) Moreover, by analogy to shackling, if the jurors are referred to by number over defendant’s objection, a limiting instruction may be required sua sponte unless the defendant expressly waives such instruction. (See People v. Duran (1976) 16 CA3d 282 at 291.)
Anonymity Permissible Upon Showing Of Justification—In People v. Thomas, supra, 53 CA4th at 787-88, the California Supreme Court acknowledged that, as interpreted by federal cases, the trial of a criminal defendant by anonymous jurors may abridge the defendant’s federal constitutional rights unless there are “strong grounds” justifying anonymity: “Federal courts recognize two potential problems with an anonymous jury: (1) jurors may infer that the defendant is dangerous, thereby implicating the defendant’s right to a presumption of innocence, and (2) the use of an anonymous jury may interfere with the defendant’s ability to conduct voir dire and exercise peremptory challenges. [Citation.] Consequently, federal cases permit an anonymous jury ‘where (1) there are strong grounds for concluding that it is necessary to enable the jury to perform its factfinding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused.’ [Citations.]” (People v. Thomas (2012) 53 CA4th 771, 787-788; see also, e.g., U.S. v. Marrero-Ortiz (1st Cir. 1998) 160 F3d 768 [justification for anonymous jury shown in federal trial of violent drug ring conspiracy].)
However, People v. Goodwin (1997) 59 CA4th 1084 suggested that under state law no justification is required for juror anonymity. In Goodwin the jurors were initially referred to by name on the first day of voir dire but for the remainder of voir dire and throughout the trial were referred to by their juror identification numbers. This procedure was adopted by the Los Angeles Superior Courts in response to “the staggering number of minute orders and reporter transcripts . . . that the clerks and reporters must now review and redact.” (Goodwin, supra, at 1088 fn 2.) Counsel, the public, and media were not barred from accessing juror identifying information and, therefore, the jurors were not strictly “anonymous.” Goodwin held that this procedure, although of questionable wisdom, did not amount to an “unauthorized and premature sealing of juror identification.” (People v. Goodwin, 59 CA4th at 1092 fn 4.) Goodwin also held that the procedure did not violate the defendant’s constitutional rights.
People v. Thomas, supra, referred to Goodwin at some length, but did “not decide whether Goodwin was correctly decided because the procedure in the present case was proper even under” the federal cases requiring a specific showing of need.
Many case and article citations related to these issues are collected in 6 Wayne R. LaFave et al., Criminal Procedure, § 22.3(b) (3rd ed. 2007).
Constitutional Challenge To Use Of Numbers In Referring To Jurors—Notwithstanding Goodwin, it may be contended that unnecessary reference to jurors by number violates a defendant’s constitutional rights to a fair trial and due process. (See People v. Thomas, supra, 53 CA4th at 787-88 [due process challenge to Goodwin recognized but not decided].) It is established that procedural measures may violate the defendant’s constitutional right to a fair trial if they are inherently prejudicial or cause actual prejudice. (Holbrook v. Flynn (1986) 475 US 560, 572 [89 LEd2d 525; 106 SCt 1340]; see also Illinois v. Allen (1970) 397 US 337 [25 LEd2d 353; 90 SCt 1057]; see also Morgan v. Aispuro (9th Cir. 1991) 946 F2d 1462, 1465 [enhanced security measures may implicate the 6th Amendment right to a fair trial and the presumption of innocence].) When jurors are only referred to by numbers, the impact upon the jurors is inherently prejudicial. The anonymity procedure suggests to the jury that they may need protection from the defendant which could have a devastatingly prejudicial impact.
First, the procedure suggests that the defendant may attempt to influence the outcome of the trial by intimidation which implies a consciousness of guilt and is highly prejudicial. (See People v. Hannon (1977) 19 CA3d 588, 600.) Second, referring to the jurors by number implies that the defendant is a dangerous person from whom the jury must be protected, thereby implicating the defendant’s constitutional right to presumption of innocence. (U.S. v. Thomas (2nd Cir. 1985) 757 F2d 1359; U.S. v. Scarfo (3rd Cir. 1988) 850 F2d 1015, 1021-1023; see also Illinois v. Allen, 397 US at 344 [shackling of defendant is likely to lead jurors to infer that he or she is a violent person disposed to commit crimes of the type alleged]; Rhoden v. Rowland (9th Cir. 1998) 154 F3d 1034 [unnecessary shackling which is visible to the jury is prejudicial error].) “[S]hackling, like prison clothes, is an indication of the need to separate a defendant from the community at large, creating an inherent danger that the jury may form the impression that the defendant is dangerous or untrustworthy. Therefore, ‘[i]n the presence of the jury, [the defendant] is ordinarily entitled to be relieved of handcuffs, or other unusual restraints, so as not to mark him as an obviously bad man or to suggest that the fact of his guilt is a foregone conclusion.’ [Citations.]” (Rhoden v. Rowland (9th Cir. 1999) 172 F3d 633, 636.) “Because visible shackling during trial is so likely to cause a defendant prejudice, it is permitted only when justified by an essential state interest specific to each trial. [Citation.] Therefore, due process requires the trial court to engage in an analysis of the security risk posed by the defendant and to consider less restrictive alternatives before permitting a defendant to be restrained. [Citation.]” (Rhoden, 172 F3d 636.)
“Because at least some of the jurors saw the shackles and because the shackles essentially branded Rhoden as having a violent nature in a case where his propensity for violence was a crucial issue, the shackles ‘had a substantial and injurious effect or influence in determining the jury’s verdict’ and thus did not constitute harmless error. [Citations.]” (Rhoden v. Rowland (9th Cir. 1999) 172 F3d 633, 636; see also Holbrook v. Flynn (1986) 475 US 560, 568-69 [89 LEd2d 525; 106 SCt 1340].) Third, unnecessary juror anonymity may diminish the jurors’ sense of responsibility for their verdict which undermines the reliability of the verdict in violation of the right to a fair jury trial and due process (5th and 6th Amendments), and, in capital cases, the right to be free from cruel and unusual punishment (8th Amendment). (Cf. Caldwell v. Mississippi (1985) 472 US 320 [86 LEd2d 231; 105 SCt 2633] [reliability of jury verdict undermined when juror’s sense of personal responsibility is compromised].)
Hence, in any case where the jurors are referred to by number without the required showing of necessity, the constitutional rights to due process, trial by jury and public trial provisions of the state (Art. I §15 and §16) and federal (5th and 6th Amendments) are implicated.
Nor is limiting admonition a satisfactory alternative as suggested by Goodwin. (Goodwin, 59 CA4th at 1091, fn 3.) Although it is generally assumed that the jury followed the court’s admonitions (see People v. Arias (1996) 13 CA4th 92, 148; Greer v. Miller (1987) 483 US 756, 764 [97 LEd2d 618; 107 SCt 3102]), this presumption is “rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation . . .” (Richardson v. Marsh (1987) 481 US 200, 208 [95 LEd2d 176; 107 SCt 1702].) In point of fact, the “benefit of a cautionary instruction is ‘debatable’ in that it may tend to highlight the fact it was intended to minimize.” (People v. Frierson (1991) 53 CA3d 730, 744, citing People v. Crandell (1988) 46 CA3d 833, 877; see also People v. Melton (1988) 44 CA3d 713, 757-58 [no sua sponte duty to instruct the jury to draw no adverse inference from a defendant’s failure to testify]; see also FORECITE PG X(E)(19)(2) and (3).)
It is one thing to presume that cautionary instructions will cure prejudice from security procedures which have been shown to be necessary due to the defendant’s own conduct. (See, e.g., Arias, 13 CA4th at 148 [defendant’s courtroom outbursts].) Normally, in such cases the necessity of the situation justifies requiring the defendant to rely on the “debatable” utility of a limiting instruction.
However, it is quite another thing to expose the defendant to such a potentially prejudicial procedure for largely administrative reasons and without any showing that the defendant’s conduct necessitated the procedure. In such a situation it is an unfair abridgement of the defendant’s rights to a fair trial and due process to require the defense to rely upon a limiting instruction to protect against an inherently prejudicial procedure which has not been shown to be necessary under the circumstances. (See Illinois v. Allen (1970) 397 US 337 [25 LEd2d 353; 90 SCt 1057]; People v. Duran (1976) 16 CA3d 282, 292.)
In sum, unless necessity is shown, jurors should not be referred to by number during any portion of the proceedings.
Identification Of PartiesC See FORECITE F 100.2 Note 1.
See also F 123 Inst 1, F 337 Inst 3.
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 9.2 [Courtroom Security]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
STRATEGY NOTE: The party who benefits from a cautionary or limiting instruction may object to the instruction for tactical reasons to avoid undue emphasis of the improper matter. (See also FORECITE PG VI(C)(1.1).)
NOTES
CAVEAT: Of course, the decision whether to request such an instruction requires careful evaluation as to whether it will unduly emphasize the factor sought to be limited. (See “CAVEAT” to FORECITE F 204 Inst 2.) Consideration should also be given to the impact of the cautionary instruction on the potential constitutional challenge on appeal. Whether requested or not, counsel should consider emphasizing the inadequacy of a limiting instruction due to the danger it will highlight the prejudice.
RESEARCH NOTES:
Litt, “Citizen-Soldiers“ or Anonymous Justice: Reconciling the Sixth Amendment Right of the Accused, the First Amendment Rights of the Media and the Privacy Rights of Jurors, 25 Colum. J.L. & Soc.Probs. 371, 393 (1992).
See Annotation, Propriety of, and procedure for, ordering names and identities of jurors to be withheld from accused in federal criminal trialC anonymous juries, 93 ALR Fed 135, supp. sec. 4.5 and Later Case Service.
CALJIC NOTE: See FORECITE F 0.50b.
F 101.1 Inst 2 Reference To Juror By Number Based On Showing Of Good Cause Under CCP 237
*Add appropriate version to CC 101:
[As a matter of procedure] [and] [To protect you from unwarranted intrusions from the media], you will be referred to by your juror identification number rather than your name during the trial.
You may not consider the use of this procedure for any purpose or draw any inferences from it at all. Do not consider it as evidence of anything and do not permit it to enter into your view of the evidence or your later deliberations. Such procedures should have no bearing on your determination of whether or not the defendant has been proven guilty beyond a reasonable doubt.
Points and Authorities
Unnecessary reference to jurors by numbers may abridge the defendant’s federal constitutional rights to a fair trial by jury and due process (6th and 14th Amendments). (See FORECITE F 101.1 Inst 1.)
However, when an anonymous jury is justified a special cautionary instruction is appropriate. People v. Goodwin (1997) 59 CA4th 1084, 1091 fn 3 suggested that the jurors should be admonished that such a procedure is required in all criminal cases and has nothing to do with any particular defendant. (See also People v. Thomas (2012) 53 CA4th 771, 787-88; People v. Hernandez (2011) 51 CA4th 733, 744 [“We emphasize that the trial court should give such a cautionary instruction when the defendant requests it, or should explain on the record the reasons why it has been refused.”]; People v. Stevens (2009) 47 CA4th 625, 642 [same]; People v. Hannon (1977) 19 CA3d 588, 600; Illinois v. Allen (1970) 397 US 337, 344 [25 LEd2d 353; 90 SCt 1057]; U.S. v. Scarfo (3rd Cir. 1988) 850 F2d 1015, 1021-1023.) Failure to do so could implicate the defendant’s right to a fair trial because the jury could speculate that there was some reason related to the defendant’s dangerousness which required the jurors’ names to be kept secret. (Goodwin, supra, at 1091, fn 3.) Moreover, by analogy to shackling, if the jurors are referred to by number over defendant’s objection, a limiting instruction may be required sua sponte unless the defendant expressly waives such instruction. (See People v. Duran (1976) 16 CA3d 282, 292; see also FORECITE F 204 et seq.)
On the other hand, since the limiting instruction is for the benefit of the defendant, it should be subject to waiver upon specific request that the instruction not be given. (See FORECITE F 362 Note 7.)
Similar considerations apply when a fully anonymous jury is empaneled pursuant to a showing of “compelling necessity” under CCP 237. Although such an instruction could not accurately state that the procedure is used in every case and has nothing to do with the defendant, it is essential that the instruction not provide any basis upon which the jurors may infer that the defendant or associates of the defendant are a security risk. (See, e.g., CALCRIM 204; People v. Duran (1976) 16 CA3d 282, 292.) This has been accomplished by instructing the jury as to other reasons for the anonymity procedures such as protection from media intrusion. (See U.S. v. Paccione (2nd Cir. 1991) 949 F2d 1183 [prejudice from juror anonymity ameliorated by instruction that anonymity was necessary to protect the jury from the media]; U.S. v. Halliburton (9th Cir. 1989) 870 F2d 557 [jury informed that escort was due to the neighborhood and late court sessions].)
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 9.2 [Courtroom Security]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
CAVEAT: Of course, the decision whether to request such an instruction requires careful evaluation as to whether it will unduly emphasize the factor sought to be limited. (See “CAVEAT” to FORECITE F 204 Inst 2.) Consideration should also be given to the impact of the cautionary instruction on the potential constitutional challenge on appeal. Whether requested or not counsel should consider emphasizing the inadequacy of a limiting instruction due to the danger it will highlight the prejudice.
RESEARCH NOTES:
Litt, “Citizen-Soldiers” or Anonymous Justice: Reconciling the Sixth Amendment Right of the Accused, the First Amendment Rights of the Media and the Privacy Rights of Jurors, 25 Colum. J.L. & Soc.Probs. 371, 393 (1992).
See Annotation, Propriety of, and procedure for, ordering names and identities of jurors to be withheld from accused in federal criminal trial—“anonymous juries,” 93 ALR Fed 135, supp. sec. 4.5 and Later Case Service.
CALJIC NOTE: See FORECITE F 0.50c.
F 101.1 Inst 3 Jurors Do Not Have To Reach A Verdict
*Add at end of CC 101:
Both the prosecution and a defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and attempt to reach a verdict, if you can, regardless of the consequences.
Points and Authorities
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” ].)
In other words, in the event of juror disagreement there 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 101.1 Inst 4 Admonition Against Consumption Of Alcohol
*Add to CC 101:
The consumption of alcoholic beverages by jurors, whether during the presentation of evidence or during deliberation, is clearly to be discouraged. The defendant as well as the People have a right to the reasoned, dispassionate and considered judgment of the jury. Because the consumption of alcoholic beverages may impair one’s ability to perceive and judge, use of such intoxicants by jurors threatens both the fairness of the trial and the integrity of the entire judicial process.
Points and Authorities
In People v. Cox (1991) 53 C3d 618, 695-96, the California Supreme Court gave a mixed message regarding the issue of consumption of alcohol by jurors either during the evidentiary stage or deliberation stage of trial. On the one hand, the court found no juror misconduct for the consumption of alcohol at lunch during the trial because the defendant failed to allege any impairment of the jurors’ abilities during trial or deliberations. (See also People v. Hedgecock (1990) 51 C3d 395, 420 [jurors have no duty to abstain from use of alcoholic beverages when they are not deliberating unless the alcohol renders the juror unable to competently perform his or her duties].)
On the other hand, the court after noting its “particular concern to preserve the reliability of death penalty verdicts” reiterated the above instruction on the subject. (Cox, 53 C3d at 695-96 [Citation omitted].)
Accordingly, Cox provides the basis for an admonition about the consumption of alcohol which would advise the jurors that they should not consume alcohol if it impairs their ability to perceive and judge.
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 6.7 [Reliability: Non-Capital Charge]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury‘s Duty To Fully And Fairly Apply The Law]
FORECITE CG 7.9 [Duty To Deliberate Fully And Fairly]
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 1.00 n2.
