SERIES 100 PRETRIAL INSTRUCTIONS
F 101 NOTES
F 101 Note 1 Pretrial Admonition
F 101 Note 2 Pretrial Discovery Of Prosecution’s Theory Of Culpability And Instructions
F 101 Note 3 Whether Audience Seating Arrangement Necessitates Cautionary Instruction
F 101 Note 4 Failure To Admonish Jury At Recess
F 101 Note 5 Jury View Of Scene: Notes
F 101 Note 6 Jury Should Not Be Permitted To Retain Electronic Communication Devices During Trial
F 101 Note 7 Juror Experiments During Trial Or Deliberations
F 101 Note 8 Personal Expertise Of Juror
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F 101 Note 1 Pretrial Admonition
For additional discussion, see FORECITE CHK V—Checklist Re: Preinstruction (PC 1122(a)); see also California Rules of Court, Rule 2.1035.
F 101 Note 2 Pretrial Discovery Of Prosecution’s Theory Of Culpability And Instructions
Rule 4.200(a) (formerly Rule 228.1.) requires a pre-voir dire conference in criminal cases during which the court must determine “the People’s theory of culpability and the defendant’s theories.” Moreover, in order to meaningfully voir dire the prospective jurors, defense counsel must be able to question prospective jurors about their ability to apply jury instructions on the legal doctrines of the case. (See People v. Balderas (1985) 41 C3d 144, 182.)
CALJIC NOTE: See FORECITE F 0.50 n4.
F 101 Note 3 Whether Audience Seating Arrangement Necessitates Cautionary Instruction
In some circumstances the court’s requirement of special seating arrangements may imply that the defendant’s friends and associates are dangerous. (Cf. People v. Carter (2003) 30 C4th 1166, 1202 [record does not suggest the move would have been interpreted as a security measure].) In such cases it may be appropriate to inform the jury that the seating rules are standard procedure to counter prejudicial juror speculation. (See e.g., FORECITE F 101.1 Inst 1; F 2.008a.)
CALJIC NOTE: See FORECITE F 0.50 n7.
F 101 Note 4 Failure To Admonish Jury At Recess
PC 1122(b) requires the court, at each adjournment, to admonish the jury not to converse among themselves or anyone else on any subject connected with the trial. However, the failure to do so may not be raised on appeal without an objection below. (People v. Ramos (2004) 34 C4th 494, 531-32.)
CALJIC NOTE: See FORECITE F 1.00 n11.
F 101 Note 5 Jury View Of Scene: Notes
See FORECITE F 2.004.
F 101 Note 6 Jury Should Not Be Permitted To Retain Electronic Communication Devices During Trial
State v. Mitchell (KS 2011) 252 P3d 586, 9-11 encouraged the PIK (Pattern Jury Instruction, Kansas) committee to consider a revision to the general instruction on juror communication along the lines of that utilized in New York: “‘Jury Admonitions in Preliminary Instructions’ to include specific instructions to jurors not to use ‘internet maps or Google Earth’ as well as not to actually visit any place mentioned during the trial, not to use ‘the internet’ to do any research about the case, and not to use ‘text messages, email, internet chat rooms, blogs or social websites, such as Facebook, MySpace, or Twitter’ as well as face-to-face conversations to discuss the case.” (People v. Jamison, 24 Misc. 3d 1238[A], 899 NYS2d 62 (N.Y. Sup. Ct., Misc. 3d 2009) (unpublished opinion).)
The rationale for this instruction was explained by Henri v. Curto (Ind. 2009) 908 NE2 196, 202-03 as follows:
We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice. These include the disclosure of confidential proceedings or deliberations; a juror’s receiving improper information or otherwise being influenced; and a witness’s or juror’s distraction or preoccupation with family, employment, school, or business concerns. These and other detrimental factors are magnified due to swift advances in technology that may enable a cell phone user to engage in text messaging, social networking, web access, voice recording, and photo and video camera capabilities, among others. The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation.
In a comment to the summer 2012 CALCRIM revision of CC 101, Judge Helios J. Hernandez of the Riverside County Superior Court submitted the following instructional language on the subject:
Do not do any research on your own or as a group. Do not use a dictionary, an encyclopedia, the Bible, the Internet, or other materials. Do not use Facebook, You Tube, Twitter or any electronic methods in relation to this trial.
F 101 Note 7 Juror Experiments During Trial Or Deliberations
During deliberations, the jury may use an exhibit according to its nature and carry out experiments within the lines of offered evidence that do not invade new fields. (See People v. Collins (2010) 49 C4th 175.) Collins observed that once the jury is deliberating, there is nothing to prohibit a single juror from individually contemplating the evidence while separated from other jurors and nothing to prohibit jurors from conducting experiments with evidence. (Id. at 254.) Jurors have wide latitude in the consideration of the evidence, and an experiment is improper only if it allows the jury to discover evidence by considering areas not examined during trial. There is no prohibition against juror experiments which result in “simply a ‘more critical’ examination of the evidence admitted,” with no new extrinsic evidence received. (See also People v. Engstrom (2011) 201 CA4th 174.)
Compare People v. Vigil (2011) 191 CA4th 1474: A juror violated the trial court’s admonition not to engage in experimentation outside courtroom by attempting to replicate the shooting circumstances, using a broomstick, and reporting the results to fellow jurors; see also People v. Conkling (1896) 111 CA616, 628 (a juror cannot do their own investigation).
Also compare CC 101, paragraph 5 (jurors unconditionally admonished against conducting experiments). See also FORECITE F 101.1 Note 8; F 332 Inst 8.
F 101 Note 8 Personal Expertise Of Juror
CC 101 does not specifically address the question of juror expertise. In some circumstances it may be appropriate to address this matter which may also be related to juror experiments. (See FORECITE F 332 Inst 8; F 101 Note 7.)
