PG X(L) Juror Misconduct.
(1) Juror Agreement To Disregard An Instruction.
An agreement among the jurors evidencing a deliberate refusal to follow the court’s instructions is admissible as an “overt act” per EC 1150. (People v. Perez (92) 4 CA4th 893, 905-09 [6 CR2d 141].)
(2) Due Process Basis For Admissibility Of Juror Misconduct Notwithstanding EC 1150.
If a juror affidavit evidences a subjective failure to abide by the jury instructions, it should be considered, notwithstanding EC 1150, because of the overriding federal constitutional concerns of fair trial, due process and trial by jury. (5th, 6th and 14th Amendments.) (See Durr v. Cook (5th Cir. 1979) 589 F2d 891; 3 Weinstein, Evidence (1982) para. 606 , pp. 606-27; In re Stankewitz (85) 40 C3d 391 at 398, fn 2 [220 CR 382]; see also Parker v. Gladden (66) 385 US 363, 363-366 [17 LEd2d 420; 87 SCt 468] [Supreme Court relied on juror declaration as to the influence of bailiff misconduct]; see also PG VII(C)(28).)
Moreover, “a rule of evidence may not be enforced if it would infringe the right to a fair trial.” (People v. Corona (89) 211 CA3d 529, 544 [259 CR 524]; Hammarley v. Superior Ct. of Sacramento Co. (79) 89 CA3d 388, 401-402 [153 CR 608]; but see People v. Steele (2002) 27 C4th 1230, 1262-64 [120 CR2d 432] [EC 1150’s prohibition on evidence of a juror’s thought processes to impeach a verdict does not violate the United States Constitution].) And, the U.S. Supreme Court has consistently held that domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (87) 483 US 44 [97 LEd2d 37; 107 SCt 2704]; Green v. Georgia (79) 442 US 95 [60 LEd2d 738; 99 SCt 2150]; Davis v. Alaska (74) 415 US 308 [39 LEd2d 347; 94 SCt 1105]; Chambers v. Mississippi (73) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; Washington v. Texas (67) 388 US 14 [18 LEd2d 1019; 87 SCt 1920].)
The Supreme Court has applied a balancing test in resolving conflicts between state rules of evidence and federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence. (Chambers, supra, 410 US at 295; Green v. Georgia, supra, 442 US at 97; Washington v. Texas, supra, 388 US at 19-23.) Several federal circuit courts of appeal have also utilized such a test. (Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967; Perry v. Rushen (9th Cir. 1983) 713 F2d 1447; Alicea v. Gagnon (7th Cir. 1982) 675 F2d 913, 923; Pettijohn v. Hall (1st Cir. 1979) 599 F2d 476, 486.) This balancing principle has also been recognized in California. (See People v. Babbitt(88) 45 C3d 660, 684 [248 CR 69]; People v. Reeder (78) 82 CA3d 543, 553 [147 CR 275].)
(3) Proposition 8 Basis For Admissibility Of Juror Misconduct.
Although rejected in People v. Hill (92) 3 CA4th 16 [4 CR2d 258], neither the California Supreme Court nor any other appellate district has considered whether Proposition 8 renders juror statements admissible. The question depends on whether EC 1150 is considered a rule of evidence or a substantive rule. (Hill concluded that it is a substantive rule thus making juror statements impeaching the verdict irrelevant.) Notwithstanding Hill to the contrary, much about EC 1150 indicates it is a rule of evidence. It is in the “Evidence Code,” it is entitled “Evidence To Test A Verdict,” and its express language — which in the absence of ambiguity dictates legislative intent (People v. Craft (86) 41 C3d 554, 559-560 [224 CR 626]) — contains the terms “evidence may be received” and “no evidence is admissible.” (See LaFave & Scott, Substantive Criminal Law (1999 Supp.) (West) § 4.10(ee) [“…Justice Ginsburg supported her characterization of the statute with the cogent observation that it appears in the ‘Crimes’ title of the Montana code rather than in the title containing evidentiary rules….”].)
It is true that the statute is based on substantive policy considerations, but the same can be said for many other evidentiary rules (e.g., hearsay.) (See Imwinklereid and Garland Exculpatory Evidence (2nd Ed. 1996) §§ 6-4. Moreover, if the legislature had intended EC 1150 to be a rule of substantive law, why didn’t it word the statute as a rule of substantive law, and place it in an appropriate substantive provision of the Code of Civil Procedure and/or the Penal Code such as PC 1181? Absent such action by the legislature, the substantive law remains defined by Penal Code provisions such as 1181 which require a new trial when “the verdict or finding is contrary to law or evidence…” (PC 1181(6).) In fact, the language of EC 1150 is operatively analogous to the language of EC 786 and 790 which the Supreme Court has already identified as rules of evidence abrogated by Proposition 8. (See People v. Harris (89) 47 C3d 1047, 1081-82 [255 CR 352].) In sum, section 1150 does not make the evidence irrelevant, “it simply restricts its admissibility.” (People v. Taylor (86) 180 CA3d 622, 630 [225 CR 733] [holding that EC 790 “does not render evidence in support of defendant’s credibility irrelevant …”].)
Moreover, in concluding that jury statements are not relevant to impeach a verdict, Hill fails to consider the relevance of such statements to show a violation of the federal constitution. (See FORECITE PG X(L)(2) [jury statements should be considered in balancing the harm to defendant against the governmental interest in excluding the statements].) Furthermore, Hill’s conclusion that the evidence is not relevant is unpersuasive. Moreover, a juror’s statement which indicates the verdict is contrary to the law or evidence is clearly relevant upon the material issues presented at a motion for new trial. (See PC 1181(8); but see People v. Steele (2002) 27 C4th 1230, 1263-64 [120 CR2d 432] [because, as a matter of substantive law, the jurors’ mental processes leading to the verdict are of no jural consequence, evidence of those mental processes is of no “consequence to the determination of the action” (EC 210) and hence is irrelevant].)
CAVEAT: EC 1150 can be a two-edged sword. It has been employed to prevent the prosecution from showing that juror misconduct or extrinsic evidence was not prejudicial. (E.g, People v. Nesler (97) 16 C4th 561, 584 [66 CR2d 454].) Hence, counsel should evaluate the wisdom of challenging the statute in light of the individual circumstances of the case.
[See Brief Bank # B-767 for additional briefing on this issue.]
(4) Jury Misconduct: Consideration Of Juror Declarations Or Affidavits.
(See State v. Aldret (SC 1999) 509 SE2d 811 [333 SC 307] [trial court could consider juror affidavits alleging premature deliberations if necessary to ensure fundamental fairness]; see also United States v. Resko (3rd Cir. 1993) 3 F3d 684 [prohibition against premature deliberations protects defendant’s right to a fair trial as well as his or her due process right to place burden on the government to prove its case].
“[A] jury should not begin discussing a case, nor deciding the issues, until all of the evidence, the argument of counsel, and the charge of the law is completed…. The reason for the rule is apparent. The human mind is constituted such that when a juror declares himself, touching any controversy, he is apt to stand by his utterances to the other jurors in defiance of evidence. A fair trial is more likely if each juror keeps his own counsel until the appropriate time for deliberation.” (State v. McGuire (SC 1979) 253 SE2d 103 [272 SC 547]; see also Aldret, 509 SE2d at 813.)
(5) Juror Misconduct: Duty Of Inquiry.
The trial court abuses its discretion by denying the defendant a meaningful opportunity to establish actual bias by calling a juror who may have been influenced by extraneous knowledge. (See generally People v. Cleveland (2001) 25 C4th 466, 477-78 [106 CR2d 313] [trial court has duty to inquire if put on notice that juror may not be able to perform his or her duty]; see also People v. Barber (2002) 102 CA4th 145 [124 CR2d 917]; People v. Hightower (2001) 94 CA4th 998 [114 CR2d 680] [juror note triggered duty to inquire and conduct further investigation].) Even if the juror provides an assurance of impartiality in a note written to the court revealing the improper knowledge, this would still be insufficient to insure the juror’s impartiality without further inquiry. (U.S. v. Herndon (6th Cir. 1998) 156 F3d 629; see also Dyer v. Calderon (9th Cir. 1998) 151 F3d 970 [state trial judge failed to conduct an adequate investigation into juror’s alleged bias after information surfaced during trial calling into question the veracity of the juror’s voir dire answers]; see also Fields v. Woodford (9th Cir. 2002) 281 F3d 963 [juror whose wife had been kidnapped and raped may have been biased during murder trial].)
Any investigation into juror misconduct “should be complete enough to determine ‘good cause.’” (People v. McNeal (79) 90 CA3d 830, 837 [153 CR 706]; see also People v. Keenan (88) 46 C3d 478, 532 [250 CR 550].) Indeed, failure to conduct an inquiry sufficient to the occasion may be an abuse of discretion. (Keenan, 46 C3d at 532; People v. Burgener (86) 41 C3d 505, 519-20 [224 CR 112].) “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.” (McNeal, 90 CA3d at 839; see also People v. Cleveland, supra; 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].)
CAVEAT: Waiver By Trial Counsel.
The defense may waive the right to further inquiry into juror misconduct by declining to move for a mistrial and expressing satisfaction with the remaining jurors. (See People v. Holloway (2004) 33 C4th 96, 124 [defendant forfeited jury misconduct issue by failing to seek the juror’s excusal or otherwise object to the court’s course of action]; People v. Jenkins (2000) 22 C4th 900, 1047 [95 CR2d 377] [tactical defense decision to oppose examination of apparent holdout juror]; People v. Majors (98) 18 C4th 385, 428; People v. Gallego (90) 52 C3d 115, 188; Chyten v. Lawrence & Howell Investments (94) 23 CA4th 607, 618 [46 CR2d 459] [acquiescence]; People v. Wisely (90) 224 CA3d 939, 947 [274 CR2d 291] [failure to object to jury conduct]; People v. McIntyre (81) 115 CA3d 899, 906.)
(6) Juror Misconduct: Source And Means Of Juror Exposure To Extrinsic Evidence.
The source and means by which the jury comes into possession of extrinsic evidence is irrelevant to whether the information was extrinsic and whether it was prejudicial. (See Benjamin v. Fischer (2002) 248 FSupp2d 251 [despite redaction of police report jurors held it up to the window during deliberations to read redacted portions; see also People v. Danks (2004) 32 C4th 269, 308 [juror brought copy of the Book of Numbers passage into the jury room, and passed it around to the other jurors; this was misconduct (citing People v. Mincey (92) 2 C4th 408, 465-467.) [Briefing on this issue is available to FORECITE subscribers. Search for Brief Bank # B-973.]
(7) Juror Misconduct: Standard Of Review – Review Of Denial Of Motion For New Trial.
Courts have stressed the particular need for independent review of the trial court’s reasons for denying a new trial motion in juror bias cases. This is because the reviewing court must protect the complaining party’s right to a fully impartial jury as an “`inseparable and inalienable part’ of the [fundamental] right to jury trial [(U.S. Const., amend. VI; Cal. Const., art. I, § 16)]. [Citations.]” (Andrews v. County of Orange (82) 130 CA3d 944, 953; see also People v. Brown(76) 61 CA3d 476, 481; Clemens v. Regents of University of California (71) 20 CA3d 356, 360-361.)
Hence, the reviewing court should conduct de novo independent review of the trial court’s denial of a motion for new trial based on a claim of juror misconduct. People v. Ault (2004) 33 C4th 1250, 1262-65:
The People urge that the instant order implicates the fundamental constitutional right to an impartial jury, but it does so in a crucially different context than was the case in Nesler [People v. Nesler (97) 16 Cal.4th 561]. There, we invoked an appellate court’s obligation to protect a criminal defendant’s impartial-jury rights against deprivation in consequence of a trial court’s erroneous determination that juror misconduct was not prejudicial. Here, by contrast, the trial court has sought to protect defendant’s impartial-jury rights by making a plausible finding that conceded juror misconduct was prejudicial, thus warranting a new trial. The People fail to show why concern for the right to an impartial jury requires the same level of appellate scrutiny in the latter situation as in the former. (People v. Ault, 33 C4th Ault at 1265.)
[See Brief Bank # B-973 for briefing on this issue.]
(8) Juror Misconduct: Standards Of Prejudice.
(8.1) General Standard Of Prejudice.
“Juror misconduct generally raises a rebuttable presumption of prejudice . . .” (In re Lucas (2004) 33 C4th 682, 696.) However, “[a]ny presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.” (In re Hamilton (99) 20 C4th 273, 296 [italics omitted]; see also Lucas, 33 C4th at 696.) [In People v. Ramos (2004) 34 C4th 494, 519, the court failed to mention this general presumption of prejudice in describing the general legal principles applicable to juror misconduct. Rather, the court stated how the “Defendant may show bias . . .” This would seem to be an inadvertent misstatement of the standard of prejudice since the general presumption of prejudice should place the burden on the prosecution to show the absence of bias.]
[For briefing on this issue, see Brief Bank # B-979.]
(8.2) Standard Of Prejudice When Jurors Receive Extraneous Information.
The California Supreme Court has explained that the following standards govern review of claims that jurors have been exposed to extraneous evidence: “To summarize, when misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test. [Citations.]” [Internal quotation marks omitted.] (In re Lucas (2004) 33 C4th 682, 696-977.)