Jury Misconduct During Deliberations: Use of Juror Declarations
December 29th, 2021

In People v. Flores (2021) 70 Cal.App.5th 100 (Oct. 8, 2021, C089569) Flores was found guilty of voluntary manslaughter, among other crimes, after the jury initially declared it was unable to reach a unanimous verdict. Defendant moved for a new trial based on evidence the jury considered defendant’s sentence in determining the verdict. The jurors’ declarations in support of the new trial motion showed the jury was at an impasse between second degree murder and voluntary manslaughter and shortly after discussing the possibility defendant would “walk” if it were to hang, the jury found defendant guilty of voluntary manslaughter. The trial court denied defendant’s new trial motion, finding inadmissible any evidence of the jury’s deliberations regarding punishment and that discussing punishment during deliberations is not misconduct.

The appellate court held: (1) the trial court erred in finding inadmissible the entire contents of the jurors’ declarations submitted in support of the new trial motion; (2) consideration of the admissible portions of the jurors’ declarations establish misconduct occurred, raising a rebuttable presumption of prejudice; and (3) the People failed to rebut the presumption of prejudice.

Flores illustrates the not uncommon tension between the general assumption that jurors’ follow the judge’s instructions and the reality that, in certain situations, jurors will be tempted to disobey the instructions.

In cases where it is believed that one or more jurors committed misconduct during the deliberations Evidence Code section 1150 is of paramount importance because it typically determines “what evidence is admissible.” (People v. Flores, supra at ____.)

Evidence Code section 1150 (a), provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”


“ ‘This statute distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved.”’ ” (People v. Gonzales (2012) 54 Cal.4th 1234, 1281.) Juror’s statements “ ‘must be admitted with caution,’ because ‘[s]tatements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors.’ [Citation.] But statements made by jurors during deliberations are admissible under Evidence Code section 1150 when ‘the very making of the statement sought to be admitted would itself constitute misconduct.’ ” (People v. Cleveland (2001) 25 Cal.4th 466, 484.)

For example, in Flores “[w]hy a juror did or did not change his or her vote, and his or her subjective understanding of the punishment discussions [were] evidence of internal thought processes and therefore inadmissible. But the statements indicating that sentencing discussions took place among the jurors during deliberations, including how punishment should factor into the verdict for the murder charge, [were] admissible. Such discussions were out loud, heard by all the jurors, and involved information that could have influenced the verdict. This cover[ed] both the evidence of general discussions about punishment and the specific statements made by individual jurors to the entire panel about what should be considered, including D. R.’s statement that he knew, based on his personal knowledge and experience as a correctional officer, defendant would “walk” if the jury were to hang. The statements were not evidence as to the effect these statements had on any juror’s mental processes or why he or she may or may not have changed his or her vote, but rather … objective information the jurors were considering during deliberations.” (People v. Flores, supra at ____.)

Thus, EC 1150 did not prevent the Flores court from holding that — by discussing punishment during its deliberations — the jury failed to obey CALCRIM 101’s admonition to “reach your verdict without any consideration of punishment” and, therefore committed prejudicial misconduct.

Similarly, 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.)

For additional discussion of EC 1150 and jury misconduct see PG X(L) Juror Misconduct 


Caveat: Cases such as Flores highlight the importance of interviewing jurors after trial, if possible. However, there are roadblocks which counsel may have to overcome such as:


–CC 3590


PG X(M) Access To Jurors’ Names And Addresses 


Limitations on Selection of an Anonymous Jury and Access to Juror Names September 14th, 2021