Duty to Deliberate: Impropriety of Juror-on-Juror Coercion

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing. Go to: http://jamespublishing.com/books/fc.htm

    Despite the paucity of law on the subject, it seems obvious that the defendant’s constitutional rights to trial by jury and due process would be violated if the will of a minority juror favoring the defense was overcome by coercion or intimidation by the jurors favoring the prosecution. The problem is that if the improper coercion does not come to light until after the verdict is returned Evidence Code 1150 limits the evidence which may be presented on the issue. Moreover, CCP 206 and CCP 237 further limit counsel’s ability and right to talk with the jurors after the verdict. Hence, because CALJIC 17.40 does not address the question of juror coercion, counsel may wish to consider requesting a supplement to the CALJIC instruction in cases where the minority holdouts are likely to favor the defense. Moreover, due to the limitations imposed by Evidence Code 1150 and CCP 206 and 237, the supplemental instruction should encourage the jurors to report any improper coercion so it can be investigated and corrected before the verdict.

    A possible supplemental instruction with supportive briefing could be the following:

    During your deliberations, you may become engaged in vigorous, even heated, debate or discussion. Such debate or discussion is proper. However, any verdict must be the product of the free and voluntary decision of each individual juror. Therefore, you are forbidden from engaging in any coercive or threatening conduct during deliberations which may cause another juror to vote against his or her will or contrary to his or her true belief. If such coercive or threatening conduct occurs during the deliberations it should immediately be reported to me or the bailiff.

Points and Authorities

    California courts have been reluctant to conduct post-verdict inquiry into juror-on-juror coercion because EC 1150 precludes inquiry into the jurors' subjective thought processes. (See People v. Keenan(88) 46 C3d 478, 541-42 [250 CR 550].) However, the fact remains that it would be improper juror misconduct for one juror or group of jurors to coerce another juror or jurors to vote against the jurors' will or belief. For example, in People v. Castorena(96) 47 CA4th 1051, 1065-66 [55 CR2d 151] a "holdout" juror (Patricia S.) was excused during deliberations after being accused of refusing to deliberate by the other jurors. In response to the accusation, Patricia S. had sent a note to the judge denying the accusation of failing to deliberate and accusing another juror (Denise H.) of attempting to "intimidate" Patricia S. into changing her mind, refusing to report to the judge that the jury was "hung" and threatening to replace Patricia S. with an alternate juror. The court of appeal concluded that the alleged conduct of Denise H. provided evidence of "juror misconduct on the part of Denise H." which, together with Patricia S.'s other statements, obligated the trial judge to conduct further inquiry. (Castorena, 47 CA4th at 1066; see also People v. Lavender (86) 502 NYS2d 439, 502 [503 NE2d 121] [conviction reversed where coercion, harassment and intimidation was revealed prior to verdict]; Wharton v. People (39) 104 Colo 260 [90 P2d 615] [death sentence reversed where majority pressured holdout juror to vote for death]; cf., People v. Mc Neal(79) 90 CA3d 830, 838-39 [153 CR 706] [evidence that juror may be under "duress" from outside influences requires inquiry by trial court].) Indeed, Keenan did not dispute that juror-on-juror coercion would be juror misconduct if it was shown by substantial, competent evidence. Rather, Keenan merely held that the admissible evidence was not substantial in Keenan's case.

    Hence, an instruction admonishing the jurors against coercive practices and encouraging the jurors to report such misconduct is appropriate. In fact, such an instruction would seem to be especially efficacious due to the rule against post-verdict inquiry into the impact of such misconduct. [However, if jury misconduct is reported during deliberations, EC 1150 does not preclude inquiry into the impact of the misconduct. (See People v. Beeler (95) 9 C4th 953, 1016 [39 CR2d 607].)]

    Moreover, failure to give the requested instruction, by itself, and in combination with other errors, will: (1) preclude a full, fair, reliable and impartial determination by all jurors, based only upon properly admitted evidence, of all elements of the charge under the correct burden of proof; (2) impair the defendant's ability to defend against the charges and (3) produce a fundamentally unfair and unreliable verdict and sentence. Therefore, the defendant's constitutional rights to due process, compulsory process and trial by jury and to be free from cruel and unusual punishment require that the instruction be given. (U.S. Const., 5th, 6th, 8th & 14th Amendments; Cal. Const., Art. I, §§ 15 & 16; see discussion and authorities in FORECITE (2d Ed 1996) PG VII(C)(1) & (2) incorporated herein by reference.) To the extent the proposed instruction is required by state law, failure to give it would violate the Due Process Clause of the 14th Amendment by arbitrarily denying defendant a state created right. (See e.g., Hicks v. Oklahoma (80) 447 US 343, 346 [65 LEd2d 175; 100 SCt 2227].) [In capital prosecutions the proposed instruction is required under all of the above constitutional provisions, as well as the 8th and 14th Amendments to the federal constitution, which require that the guilt phase determinations be fair and reliable. (See e.g., Beck v. Alabama (80) 447 US 625 [65 LEd2d 392, 403; 100 SCt 2382].)]

    See Annotation, Impeachment of verdict by juror's evidence that he was coerced or intimidated by fellow juror, 39 ALR4th 800, and Later Case Service.

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