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VOLUME 3 - CHAPTER 16
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16.2 Conduct And Duty Of The Jury During Trial

    16.2.4 Conduct Of Jury: Miscellaneous Instructions

    16.2.4.1 Consumption of Alcohol or Drugs by Jurors: Admonition Not To Use Intoxicants
    16.2.4.2 Jury Not To Consider Nature Of Charges
    16.2.4.3 Any Juror May Communicate With The Court At Any Time
    16.2.4.4 Repetition Of Adjournment/Separation Admonition
    16.2.4.5 Jury Must Not Consider Penalty During Guilt Phase Of Death Penalty Trial

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    16.2.4.1    Consumption Of Alcohol Or Drugs By Jurors: Admonition Not To Use Intoxicants

RATIONALE: Requiring jurors to refrain from consuming alcohol or other intoxicants may help to keep the jurors mentally alert during the trial.

POINTS AND AUTHORITIES:  "The defendant as well as the People have a right to the reasoned, dispassionate and considered judgment of the jury. Because the consumption of alcoholic beverages may impair one's ability to perceive and judge, use of such intoxicants by jurors threatens both the fairness of the trial and the integrity of the entire judicial process. (People v. Cox (CA 1991) 53 C3d 618, 695-96 [280 CR 692]; Brown v. State (IN 1894) 36 NE 1108, 1109 [new trial ordered; capital murder defendant "entitled to have this juror consider and pass upon his case with faculties unimpaired by drunkenness during the progress of the trial"]; see also Wharton’s Criminal Procedure (West, 13th ed. 1989) § 497, pp. 236-37; Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-6(d)(4); Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 2:3.).)

    In the federal system, an added reason for cautioning or admonishing the jury regarding the use of alcohol is that post-verdict inquiry into juror intoxication may be precluded by FRE § 606(b) which limits inquiry to external influences on the jury. (See Tanner v. U.S. (1987) 483 US 107 [107 SCt 2739; 97 LEd2d 90] [no post-verdict inquiry into juror's use of alcohol].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.6].

RESEARCH NOTES:

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 [3.12C. Incompetent Jurors, Late Or Missing Jurors: Criminal].

RELATED FEDERAL MODEL INSTRUCTIONS:

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 8th Circuit Model Jury Instructions - Criminal 2.01.

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

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

SAMPLE INSTRUCTION:

    The consumption of drugs or alcoholic beverages by jurors, whether during the presentation of evidence or during deliberation, is clearly to be discouraged.

    Both the defense and prosecution have a right to the reasoned, dispassionate and considered judgment of the jury. Because the consumption of drugs or alcoholic beverages may impair one's ability to perceive and judge, use of such intoxicants by jurors threatens both the fairness of the trial and the integrity of the entire judicial process.

    You are admonished not to use alcohol or drugs in any manner or at any time that will cause you to be under their influence to any extent whatsoever during the trial or deliberations. For example, you should not consume any alcohol during the lunch recess if it will make you less alert or attentive, to any extent, during the afternoon.

[Adapted from People v. Cox (CA 1991) 53 C3d 618, 695-96 [280 CR 692].]

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    16.2.4.2    Jury Not To Consider Nature Of Charges

RATIONALE: In some cases the nature of the charges may be inherently inflammatory. In such cases a special cautionary/limiting instruction may be appropriate.

POINTS AND AUTHORITIES: See NCJIC 12.2 [Preliminary Instructions: Role Of Charging Document]; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.14 [Nature of Charges Not To Be Considered] (Bar Association of the District of Columbia, 4th ed. 1993)

    See e.g., NCJIC 300.11.1 [Instruction Allowing Jury To Consider Irrelevant Evidence Violates the Federal Constitution].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 7.3; 7.5].

SAMPLE INSTRUCTION:

    During voir dire you agreed that the nature of the charges would not affect your ability to be fair and impartial.  The law forbids you from allowing the nature of the charge to affect your verdict in any manner.  You may not vote to convict the defendant of the offense charged, however [serious] [shocking] [disturbing], unless the prosecution has proved [him] [her] guilty of that charged offense beyond a reasonable doubt.

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    16.2.4.3    Any Juror May Communicate With The Court At Any Time

RATIONALE: The jurors may not understand that any juror may communicate with the court at any time.

POINTS AND AUTHORITIES: It should be the right of any individual juror to communicate with the court at any time throughout the trial. Such a procedure is necessary to assure that the court is fully informed of any matter which could potentially impact the fairness and reliability of the proceeding such as juror misconduct. (See e.g., Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 5 [Cautionary Instruction, First Recess] (1988). It is also necessary to empower each individual juror to protect against improper coercion by the other jurors. (See also NCJIC 278.5 [Duty To Deliberate: Impropriety of Juror-On-Juror Coercion]; NCJIC 16.2.3.3 [Duty Not To Converse With Nonjurors].)

    See also NCJIC 16.5.4 [Duty To Report Juror Misconduct].

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

PRACTICE NOTE: This is the type of instruction that should be given prior to trial and before commencement of deliberations. (See NCJIC 4.3.2.5 [Subsequent Change In Ruling Regarding Cautionary/Limiting Instruction May Constitute Unfair Surprise].)

RESEARCH NOTES:

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 [3.12C. Incompetent Jurors, Late Or Missing Jurors: Criminal].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 9th Circuit Model Jury Instructions - Criminal 1.9.

SAMPLE INSTRUCTION # 1:

    It is not necessary that a jury communication be from the jury as a whole or that the communication be sent through the jury foreperson. Any juror may submit an inquiry to the court at any time by giving a note to the bailiff or otherwise indicating to the bailiff of the need to communicate with the court.

SAMPLE INSTRUCTION # 2:

    If you need to speak with me about anything, simply give a note to the marshal to give to me.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 5 [Cautionary Instruction, First Recess] ¶ 2 (1988).]

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    16.2.4.4    Repetition Of Adjournment/Separation Admonition

RATIONALE: It may be necessary to repeat instructions to refresh the jurors' understanding of their duties. Also, unless instructions are repeated, jurors may wrongly believe that instructions given during one portion of the trial do not apply to subsequent phases of the trial and deliberations.

POINTS AND AUTHORITIES: See Wharton’s Criminal Procedure (West, 13th ed. 1989)) § 478, p. 86 [separation admonition "must be given or referred to by the court at each adjournment"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 7.5].

SAMPLE INSTRUCTION # 1:

    I will normally remind you of this admonition before each recess. However, even if I do not remind you, you must always remember this instruction.

SAMPLE INSTRUCTION # 2:

    We are about to take our first break during the trial and I want to remind you of a few things that are especially important. Until the trial is completed, you are not to discuss this case with anyone, whether members of your family people involved in the trial, or anyone else; that includes your fellow jurors. If anyone approaches you and tries to discuss the trial with you, please let me know about it immediately. Also, you must not read or listen to any news reports of the trial. Finally, remember that you must not talk about anything with any person who is involved in the trial even something that has nothing to do with the trial.

    If you need to speak with me about anything, simply give a note to the marshal to give to me.

    I may not repeat these things to you before every break that we take, but keep them in mind throughout the trial.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 5 [Cautionary Instruction, First Recess] (1988).]

SAMPLE INSTRUCTION # 3:

    We are about to take [our first] [a] recess and I remind you of the instruction I gave you earlier. During this recess or any other recess, you must not discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else. If anyone tries to talk to you about the case, please let me know about it immediately. [Do not read, watch or listen to any news reports of the trial. Finally, keep an open mind until all the evidence has been received and you have heard the views of your fellow jurors.

    I may not repeat these things to you before every recess, but keep them in mind throughout the trial.]

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.01 [Duties Of Jury: Recesses] (2000).]

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    16.2.4.5    Jury Must Not Consider Penalty During Guilt Phase Of Death Penalty Trial

    See NCJIC 303.2.1 [Death Penalty: Admonition To Refrain From Considering Penalty During Guilt Phase].