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16.2 Conduct And Duty Of The Jury During Trial

     16.2.1 No Premature Formation Of Opinion

    16.2.1.1 Duty To Keep An Open Mind And Not Form Premature Opinions
    16.2.1.2 Explanation To Jury Of Why Forming An Opinion May Be Prejudicial
    16.2.1.3 Admonition Not To Form Opinions About The Case Prior To Deliberations
    16.2.1.4 Jurors Must Not Form Opinions Prior To Deliberations, Even In Juror's Own Mind
    16.2.1.5 Duty Not To Form Premature Opinion Applies To Subsidiary Or Predicate Facts As Well As To Ultimate Verdict

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    16.2.1.1    Duty To Keep An Open Mind And Not Form Premature Opinions

    See NCJIC 300.10.5 [Constitutional Claims: Trial By Jury: Premature Discussion Or Deliberation Undermines Prosecution's Burden].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.01.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.2.

See also 8th Circuit Model Jury Instructions - Criminal 1.08.

See also 9th Circuit Model Jury Instructions - Criminal 1.1.

See also 9th Circuit Model Jury Instructions - Criminal 1.9.

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    16.2.1.2    Explanation To Jury Of Why Forming An Opinion May Be Prejudicial

RATIONALE: The judge should provide jurors with a common sense justification for the court’s insistence that they suspend judgment until the beginning of deliberations. Absent this explanation, jurors may disrespect the rule as hyper-technical or arbitrary.

POINTS AND AUTHORITIES: "A cautionary instruction is more helpful and more effective if it states the reasons why special caution is warranted." (People v. Guiuan (CA 1998) 18 C4th 558, 571 [76 CR2d 239], Kennard J. concurring.)

FEDERALIZATION: To federalize this request, click here. [Constitutional  Macro 2.6; 7.5].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 1.07.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.01.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.2.

See also 8th Circuit Model Jury Instructions - Criminal 1.08.

See also 9th Circuit Model Jury Instructions - Criminal 1.1.

See also 9th Circuit Model Jury Instructions - Criminal 1.9.

    One of the reasons you are prohibited from even forming an opinion about any issue in the case until deliberations is because once you take a position it is often more difficult to reconsider that position in light of all the circumstances.

    [D]o not discuss this case among yourselves until I have instructed you on the law and you have gone to the juryroom to make your decision at the end of the trial. Otherwise, without realizing it, you may start forming opinions before the trial is over.

[5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.01 [Preliminary Instruction] ¶ 16, sent. 7-8 (1997).]

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RATIONALE: It is critical that jurors not discuss the case or form or express opinions about the case prior to the beginning of deliberations. A premature opinion may undermine the presumption of innocence by requiring the defense to overcome it.

POINTS AND AUTHORITIES: Premature deliberation is serious juror misconduct. A juror's premature formation of an opinion may skew the burden of proof in violation of the defendant's constitutional rights to trial by jury and due process. (See Herring v. New York (1975) 422 US 853, 863 [95 SCt 2550; 45 LEd2d 593]; U.S. v. Burr (C.C.D. Va. 1807) 25 F.Cas 49, 50 ["The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man ...."]; Delaney v. U.S. (1st Cit. 1952) 199 F2d 107, 113; Winebrenner v. U.S. (8th Cir. 1945) 147 F2d 322, 328; U.S. v. Klee (9th Cir. 1974) 494 F2d 394, 396; In re Hitchings (CA 1993) 6 C4th 97, 118, fn 6 [24 CR2d 74]; People v. Purvis (CA 1963) 60 C2d 323, 341, fn 14 [33 CR 104]; People v. Blondia (MI 1976) 245 NW2d 130, 132; People v. Hunter (MI 1962) 121 NW2d 442, 446; Flores v. State (NV 1998) 965 P2d 901, 903.)

    This problem is all the more acute when the juror expresses his or her opinion. (See People v. McDonald UNPUBLISHED (CA 1995) 45 CR2d 73 [reversal warranted where juror commented during trial that the juror believed defendant was guilty, even though juror acquiesced in lesser verdict]; People v. Brown (CA 1976) 61 CA3d 476 [132 CR 217] [expression of an opinion as to the guilt of the defendant before hearing all the evidence was prejudicial misconduct]; Williams v. Salamone (CT 1984) 470 A2d 694, 696 ["Once a juror has expressed an opinion...the die may well have been cast"]; Doyle v. Merrymount Hospital, Inc. (KY 1988) 762 SW2d 813, 816; Ivy v. General Motors Acceptance Corp. (MS 1992) 612 So2d 1108, 1112-13.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 7.5].

OPINION AVAILABLE: To read the McDonald opinion, click here. [Opinion Bank # O-300.] 

Wharton’s Criminal Procedure (West, 13th ed. 1989) § 478, p. 86.

See generally A Manual On Jury Trial Procedures [3.12A. Incompetent Jurors, Late Or Missing Jurors: Judge’s Determination].

See also A Manual On Jury Trial Procedures [3.12 B. Incompetent Jurors, Late Or Missing Jurors: Criminal].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 1.07.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.01.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.02.

See also 8th Circuit Model Jury Instructions - Criminal 1.08.

See also 9th Circuit Model Jury Instructions - Criminal 1.1.

See also 9th Circuit Model Jury Instructions - Criminal 1.9.

SAMPLE INSTRUCTION # 1:

    You must keep an open mind to both sides during this trial.  Do not form or express any opinion about any of the questions in this case until you begin your deliberations.

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RATIONALE: Even if the jurors do not discuss the case prior to deliberations, a juror may be a tempted to form conclusions or opinions about the case in his or her own mind while listening to the evidence, arguments and/or instructions prior to the commencement of deliberations.

POINTS AND AUTHORITIES: It is well settled that the premature formation of an opinion or a conclusion about the case is improper. (See NCJIC 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].) This is so because jurors should keep an open mind until after hearing all of the evidence, argument and instructions and discussing the case with other jurors during deliberations. (See NCJIC 16.2.1.1 [Duty To Keep An Open Mind And Not Form Premature Opinions].) The formation of a premature opinion as to guilt is especially prejudicial because it undermines the burden of proof. (See NCJIC 16.2.1.3 [Admonition Not To Form Opinions About The Case Prior To Deliberations].) Hence, the jurors should not form a premature opinion about the case even in the privacy of their own mind.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 7.5].

See generally A Manual On Jury Trial Procedures [3.12A. Incompetent Jurors, Late Or Missing Jurors: Judge’s Determination].

See also A Manual On Jury Trial Procedures [3.12 B. Incompetent Jurors, Late Or Missing Jurors: Criminal].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 1.07.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.01.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.2.

See also 8th Circuit Model Jury Instructions - Criminal 1.08.

See also 9th Circuit Model Jury Instructions - Criminal 1.1.

See also 9th Circuit Model Jury Instructions - Criminal 1.9.

SAMPLE INSTRUCTION:

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    16.2.1.5    Duty Not To Form Premature Opinion Applies To Subsidiary Facts As Well As To Ultimate Verdict

RATIONALE: Without specific instruction the jury may interpret the general admonition to keep an open mind as applying to the ultimate guilty/not guilty question and not to subsidiary facts.

ARGUMENT: It is established that the jurors must not deliberate prior to the commencement of formal jury deliberations. (See NCJIC 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].) Deliberation includes the process of forming opinions and reaching conclusions about not only whether or not the defendant is guilty but also about the facts and subsidiary factual issues which the jury must decide in order to reach a verdict. (See NCJIC 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].)  Accordingly, the jurors should be admonished not to form or attempt to form such opinions or conclusions prior to the commencement of deliberations since such a process, would constitute improper deliberation. (See NCJIC 16.2.1 [No Premature Formation Of Opinion].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 7.5].

See generally A Manual On Jury Trial Procedures [3.12A. Incompetent Jurors, Late Or Missing Jurors: Judge’s Determination].

See also A Manual On Jury Trial Procedures [3.12 B. Incompetent Jurors, Late Or Missing Jurors: Criminal].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 1.07.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.01.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.2.

See also 8th Circuit Model Jury Instructions - Criminal 1.08.

See also 9th Circuit Model Jury Instructions - Criminal 1.1.

See also 9th Circuit Model Jury Instructions - Criminal 1.9.

    Do not form or express any opinion or come to any conclusion as to the facts in this case before you begin deliberations in the jury room.

    Do not form or express any opinion about any subject connected with this trial until you retire to the the juryroom to begin deliberations.