SERIES 100 PRETRIAL INSTRUCTIONS
F 101.8 DUTY TO REPORT RECEIPT OF INFORMATION ABOUT THE CASE
F 101.9 DEFINITION OF WORDS AND PHRASES
TABLE OF CONTENTS F 101.8 DUTY TO REPORT RECEIPT OF INFORMATION ABOUT THE CASE
F 101.8 Inst 1 “Any Juror” Should Report Juror Misconduct By Written Note To The Judge
F 101.8 Inst 2 (a-g) Duty To Report: Juror Who Becomes Aware During Trial Of Matter Affecting Ability To Be Fair And Impartial
F 101.9 DEFINITION OF WORDS AND PHRASES
F 101.9 Inst 1 Walking Dictionary Myth
Return to Series 100 Table of Contents.
F 101.8 Inst 1 “Any Juror” Should Report Juror Misconduct By Written Note To The Judge
*Modify CC 101, paragraph 8, sentence 2, as follows [added language is underlined; deleted language is stricken]:
If you receive any information about this case from any source outside of the trial, even unintentionally, do not share that information with any other juror. If you do receive such information, or if anyone tries to influence you or any juror, you must immediately tell the bailiff give my clerk _______________ <name of clerk> a written note reporting the incident to me. If the clerk is not available, give the note to the bailiff and inform the clerk about the note as soon as possible thereafter. Such a note may be submitted to me by any individual juror.
Points and Authorities
“Any Juror”—See FORECITE F 100.7 Inst 2.
Duty To Report All Contacts—The CALCRIM instruction only requires a juror to report contacts where the other person “keeps talking to you” after being to asked stop. However, other contacts should be reported as well so it can be determined whether or not the conduct was potentially prejudicial.
Written Note To Clerk—Jurors must decide all questions of fact from the evidence received in trial and not from any other source. (See People v. Holloway (1990) 50 C3d 1098, 1108-12 [state supreme court unanimously reversed death penalty case because a single juror read newspaper article containing prejudicial information not revealed at trial]; see also In re Stankewitz (1985) 40 C3d 391, 396-400.) Hence, jurors should also be told to report knowledge of witnesses and other partisans, knowledge of facts in controversy and exposure to extra-judicial evidence or statements of the law. (See e.g., PC 1120 [jurors must declare in open court personal knowledge of fact in controversy or declaration of personal knowledge by another juror during deliberations].)
“Once a court is put on notice of the possibility that improper or external influences are being brought to bear on a juror, it is the court’s duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and whether the impartiality of other jurors has been affected.” (People v. McNeal (1979) 90 CA3d 830, 839; see also People v. Cleveland (2001) 25 C4th 466; U.S. v. Jackson (9th Cir. 2000) 209 F3d 1103, 1109 [anonymous threat to juror during deliberations requires evidentiary hearing to determine if juror believed defendant was responsible for threat].)
Duty To Send A Written Note To The Judge—Simply requiring the juror to tell the bailiff is insufficient because (1) it fails to assure the judge will be informed (see e.g., 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]) and (2) it provides no written record of the incident should the matter be appealed. (See Generally 7th Circuit Federal Jury InstructionsC Criminal 7.05 [Communication With Court] Committee comment (1999); see also People v. O‘Rama (NY 1991) 574 NYS2d 159, 163; Bray v. State (TX 1972) 478 SW2d 89, 91.)
Written Note Should Be Given To The Clerk—The better practice is to designate a specific clerk to whom juror notes should be given. This is so because there may be different bailiffs in court while the same clerk will likely always be present. Also, as a law enforcement officer, the bailiff may be less likely to assure the delivery of the note to the judge. (See e.g., 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]; see also Parker v. Gladden (1966) 385 US 363 [385 LEd2d 363; 87 SCt 468] [bailiff misconduct]; Dickson v. Sullivan (9th Cir. 1988) 849 F2d 403 [same]; People v. Hedgecock (1990) 51 C3d 395, 420 [judge should caution bailiffs regarding communications with jurors].) In situations where only the bailiff is available—e.g., during deliberations—the note will have to be given to the bailiff. In such cases the jurors should inform the clerk about the note as soon as possible so the clerk can verify that the note was delivered to the judge.
Duty To Report Discussion Of Case By Someone With Another Juror—The jurors should be aware of their duty to report improper discussion of the case by other jurors. (See e.g., CALCRIM 120, & 8; see also FORECITE F 101.6 Inst 1; F 101.8 Inst 1.)
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 6.12 [Due Process: Appeal]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
PRACTICE NOTE: This type of instruction should be given both prior to trial (see PC 1122) and before commencement of deliberations. (See e.g., PC 1122(b) [cautionary instruction must be repeated at each recess]; see also generally PC 1093(f); People v. Lamb (88) 206 CA3d 397, 400.)
F 101.8 Inst 2 (a-g) Duty To Report: Juror Who Becomes Aware During Trial Of Matter Affecting Ability To Be Fair And Impartial
Alternative a:
*Add to CC 101, paragraph 8:
It is possible that during your jury service you may become aware of new information bearing on your ability to serve, such as exposure to information about the case outside of court or belatedly realizing that you know one of the witnesses, etc. If that happens, the juror must immediately notify me by giving the (clerk/bailiff) a written note.
Alternative b:
If during the course of the trial or deliberations, you become aware that you have any knowledge—whether by personal contact, rumor or otherwise— of a fact in controversy, you must immediately inform me or the bailiff.
Alternative c:
If during the course of the trial, or during deliberations, you become aware that you have any knowledge, whether by personal contact, rumor or otherwise, of a fact in controversy, you must immediately inform me or the bailiff.
Also, if during the course of the trial, or during deliberations, you become aware that you have any knowledge of any defendant [or codefendant] in this trial, or of any alleged victim of any crime charged in this trial, or of any of the witnesses in this trial, whether that knowledge is by personal contact, by rumor or otherwise, you must immediately inform me or the bailiff.
Also, if during the course of the trial, or during deliberations, you become aware that you have ever had, either now or in the past, any personal acquaintance, relationship or business or other dealings with any of the attorneys either for the prosecution or the defense in this trial, or with any defendant [or codefendant] in this trial, or with any alleged victim of any crime charged in this trial, or with any of the witnesses in this trial, you must immediately inform me or the bailiff.
Also, if, during the course of the trial, or during deliberations, you are exposed to evidence not presented at trial or to rules of law not stated in these instructions either from outside sources or another juror, you must immediately inform me or the bailiff.
Alternative d:
If, at any time during this trial, you realize that you recognize or might know any witness, lawyer, someone referred to in the testimony or evidence, or anyone else connected with this case in any way, you must immediately send me a note or raise your hand and ask to speak with me at the bench.
[Cf. Criminal Jury Instructions for the District of Columbia 1.22 [Juror’s Recognition of a Witness or Other Party Connected to The Case] (Bar Association of the District of Columbia, 4th ed. 1993).]
Alternative e:
If during the course of the trial, or during deliberations, you become aware that you have ever had, either now or in the past, any personal acquaintance, relationship or business or other dealings with any of the attorneys either for the prosecution or the defense in this trial, or with any defendant [or codefendant] in this trial, or with any alleged victim of any crime charged in this trial, or with any of the witnesses in this trial, you must immediately inform me or the bailiff.
In addition to such personal relationships, if during the course of the trial, or during deliberations, you become aware that you have any knowledge of any defendant [or codefendant] in this trial, or of any alleged victim of any crime charged in this trial, or of any of the witnesses in this trial, whether that knowledge is by personal contact, by rumor or otherwise, you must immediately inform me by written note.
Alternative f:
If, during the course of the trial, or during deliberations, you are exposed to evidence not presented at trial or to rules of law not stated in these instructions either from outside sources or another juror, you must immediately inform me or the bailiff by a written note.
Alternative g:
Immediately give the (bailiff/clerk) a note for me if you ever suspect that you have been exposed to improper outside information or influence or that someone has deliberately tried to expose you to outside information or to otherwise influence you.
[Cf. Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (crim) 2.06 [Avoiding Outside Influence (Jury Not Sequestered)] ¶ 5, sent. 2 (Pennsylvania Bar Institute, PBI Press, 12/88) .]
Points and Authorities
CALCRIM 101 fails to expressly address the situation where, during trial, a juror becomes aware of information which may impact the ability of the juror to be fair and impartial. (See generally FORECITE F 101.8 Inst 1.)
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 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 101.9 DEFINITION OF WORDS AND PHRASES
F 101.9 Inst 1 Walking Dictionary Myth
See FORECITE F 101.5 Inst 1 (a-c).