Proper to Tell Jury to Use Magnifying Glass to Examine Exhibit Photos
April 21st, 2020

Jury conduct that amounts to critical examination of the evidence admitted, as opposed to conduct resulting in the acquisition of new evidence, is not juror misconduct. Improper experiments by the jury are those that allow the jury to discover new evidence by considering areas not examined during trial. Conduct that is simply a more critical examination of the evidence admitted at trial is not impermissible. (See People v. Engstrom (2011) 201 CA4th 174; see also People v. Collins (2010) 49 C4th 175.)

Accordingly, allowing or inviting the jury to look closely at photos with a magnifying glass is not improper. Use of a magnifying glass to more closely examine an exhibit that has been admitted into evidence does not constitute improper experimentation, as it introduces no new evidence to the jury’s deliberations. (People v. Rhoades (2019) 8 Cal5th ***, S082101 (Cal. Nov. 25, 2019) slip. opn. at 86-87.)

If counsel wants the jurors to feel free to use a magnifying glass during deliberations it may be appropriate to modify the admonition in CC 101 to “not conduct any tests or experiments”  by expressly authorizing use of a magnifying glass.

See also FORECITE F 101 Note 7; F 101 Note 8; F 332 Inst 8.

Tags: , , ,