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16.5 Duty To Report Exposure To Or Knowledge Of Extraneous Matters

    16.5.1 Duty To Report Personal Knowledge Of Fact In Controversy
    16.5.2 Duty To Report Recognition Of Witness Or Other Party During Trial
    16.5.3 Duty To Report Exposure To Improper Information
    16.5.4 Duty To Report Juror Misconduct
    16.5.5 Juror Not To Discuss With Other Jurors Matters Reported Privately To Court
    16.5.6 Challenge To "Juror Snitch" Instruction

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    16.5.1    Duty To Report Personal Knowledge Of Fact In Controversy

RATIONALE: Unless so instructed, jurors may not realize that they should report to the court any personal knowledge regarding a fact which comes out at trial.

POINTS AND AUTHORITIES: Jurors must decide all questions of fact from the evidence received in trial and not from any other source. (See People v. Holloway (CA 1990) 50 C3d 1098, 1108-12 [269 CR 530] [state supreme court unanimously reversed death penalty case because a single juror read newspaper article containing prejudicial information not revealed at trial]; see also In re Stankewitz (CA 1985) 40 C3d 391, 396-400 [220 CR 382].) Hence, jurors should also be told to report knowledge of witnesses and other partisans, knowledge of facts in controversy and exposure to extrajudicial evidence or statements of the law. (See, e.g., California Penal Code § 1120 [jurors must declare in open court personal knowledge of fact in controversy or declaration of personal knowledge by another juror during deliberations].) By guarding against the jury's consideration of facts not introduced into evidence this instruction protects the defendant's federal constitutional rights to confrontation, cross-examination, assistance of counsel and due process (6th and 14th Amendments). (See Gibson v. Clanon (9th Cir. 1980) 633 F2d 851, 853 [safeguarding of constitutional rights to confrontation, cross-examination, assistance of counsel and due process (6th and 14th Amendments)].)

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

PRACTICE NOTE: This type of instruction 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].)

See Manual On Recurring Problems In Criminal Trials [13. Outside Contact With Jurors].

    If during the course of the trial or deliberations, you become aware that you have any knowledge -- whether by personal contact, rumor or otherwise -- of a fact in controversy, you must immediately inform me or the bailiff.

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RATIONALE: Unless instructed, jurors may not understand their duty to inform the court if during the trial they realize that they personally know, or have had any past contact or dealings with, any party to the case, or any witness, or any attorney or court official.

POINTS AND AUTHORITIES: Jurors must decide all questions of fact from the evidence received in trial and not from any other source. (See NCJIC 16.5.1 [Duty To Report Personal Knowledge Of Fact In Controversy].) This is particularly applicable to situations where jurors have personal knowledge which could influence their decision. (See e.g. Lyons v. U.S. (DC App. 1994) 645 A2d 574, 585, Kern, J., concurring [reversal and remand for new trial necessary, where juror discovered during trial that witness was associate of prior romantic partner].)

    Hence, the instructions should urge each juror to alert the court immediately, as soon as he or she discovers that he or she knows a witness or participant in the trial. Without such an admonition from the court, the affected jurors may not come forward.

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

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].)

See Manual On Recurring Problems In Criminal Trials [13. Outside Contact With Jurors].

    If, at any time during this trial, you realize that you recognize or might know any witness, lawyer, someone referred to in the testimony or evidence, or anyone else connected with this case in any way, you must immediately send me a note or raise your hand and ask to speak with me at the bench.

[Cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 1.22 [Juror’s Recognition of a Witness or Other Party Connected to The Case] (Bar Association of the District of Columbia, 4th ed. 1993).]

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RATIONALE: Without instruction the jurors may not realize their duty to report any exposure to news media or to any other information to the court.

POINTS AND AUTHORITIES: Jurors must decide all questions of fact from the evidence received in trial and not from any other source. (See People v. Holloway (CA 1990) 50 C3d 1098, 1108-12 [269 CR 530] [state supreme court unanimously reversed death penalty case because a single juror read newspaper article containing prejudicial information not revealed at trial]; see also In re Stankewitz (CA 1985) 40 C3d 391, 396-400 [220 CR 382].) Hence, jurors should also be told to report knowledge of witnesses and other partisans, knowledge of facts in controversy and exposure to extrajudicial evidence or statements of the law. (See, e.g., California Penal Code § 1120 [jurors must declare in open court personal knowledge of fact in controversy or declaration of personal knowledge by another juror during deliberations].) By guarding against the jury's consideration of facts not introduced into evidence this instruction protects the defendant's federal constitutional rights to confrontation, cross-examination, assistance of counsel and due process (6th and 14th Amendments). (See Gibson v. Clanon (9th Cir. 1980) 633 F2d 851, 853 [safeguarding of constitutional rights to confrontation, cross-examination, assistance of counsel and due process (6th and 14th Amendments)].)

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

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].)

See Manual On Recurring Problems In Criminal Trials [13. Outside Contact With Jurors].

See A Manual On Jury Trial Procedures [3.14A. Juror Exposure To Extrinsic Influences: In General].

See also A Manual On Jury Trial Procedures [3.14B. Juror Exposure To Extrinsic Influences: Evidentiary Hearing].

See also A Manual On Jury Trial Procedures [3.14C. Juror Exposure To Extrinsic Influences: Types Of Extraneous Influences].

See also A Manual On Jury Trial Procedures [5.1C Communications With A Deliberating Jury: Extrinsic Evidence During Deliberations].

See also generally, NCJIC 305.10.2 [Juror Exposure To Extrinsic Matters].

    If, during the course of the trial, or during deliberations, you are exposed to evidence not presented at trial or to rules of law not stated in these instructions either from outside sources or another juror, you must immediately inform me or the bailiff.

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RATIONALE: Without special instruction the jurors may not understand that juror misconduct, which may affect the fairness of the trial, should be reported to the court.

POINTS AND AUTHORITIES: The jurors should be instructed not to discuss any matter involving improper juror contact or other potential misconduct with the other jurors. (See e.g., CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 3.37 [Admonitions: Discussion By Others] ¶ 3 (New York Office of Court Administration, 1983).)  Instead, the juror should bring the matter to the court’s attention without mentioning it to the other jurors. Extraneous influences upon a juror during deliberations is a serious impropriety which can undermine the fairness of the trial. However, the impropriety may be all the more prejudicial if the juror discusses the matter with the other jurors. Accordingly, the jury should be instructed to bring such matters directly to the attention of the court without discussing them with the other jurors. (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 478, p. 86 ["It is commonly provided ... that 'the jurors ... must be admonished by the court that all attempts to [improperly communicate with them] should be immediately reported by them to the court[.]'"].)

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

CAVEAT: An instruction requiring jurors to report on the misconduct of other jurors may raise serious problems if there are only one or two hold outs for not guilty. (See NCJIC 276.1.6 [Challenge To "Juror Snitch" Instruction].

STRATEGY NOTE: Counsel will have to evaluate the risk that a "hold-out" juror may be dismissed if, in response to a juror complaint, the majority accuses the juror of nullification (voting to acquit notwithstanding the instructions). (See NCJIC 286.1.4 [Removal Of Dissenting (Holdout) Juror When Jury Is Deadlocked].)

PRACTICE NOTE: Such an instruction 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].)

    But see NCJIC 276.1.6 [Challenge To "Juror Snitch" Instruction].

See Manual On Recurring Problems In Criminal Trials [12. Juror Misconduct Or Bias].

See also Manual On Recurring Problems In Criminal Trials [13. Outside Contact With Jurors].

See A Manual On Jury Trial Procedures [3.14A. Juror Exposure To Extrinsic Influences: In General].

See also A Manual On Jury Trial Procedures [3.14B. Juror Exposure To Extrinsic Influences: Evidentiary Hearing].

See also A Manual On Jury Trial Procedures [3.14C. Juror Exposure To Extrinsic Influences: Types Of Extraneous Influences].

See also A Manual On Jury Trial Procedures [5.1C Communications With A Deliberating Jury: Extrinsic Evidence During Deliberations].

See also generally, NCJIC  305.10.2 [Juror Exposure To Extrinsic Matters].

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RATIONALE: When a juror reports a matter to the court the juror may improperly assume that the matter may be discussed with the other jurors. Therefore, special instruction on this point may be appropriate.

POINTS AND AUTHORITIES: CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 3.37 [Admonitions: Discussion By Others] ¶ 3 (New York Office of Court Administration, 1983).

    See also NCJIC 16.2.4.3 [Any Juror May Communicate With The Court At Any Time]. 

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

See Manual On Recurring Problems In Criminal Trials [13. Outside Contact With Jurors].

See A Manual On Jury Trial Procedures [3.14A. Juror Exposure To Extrinsic Influences: In General].

See also A Manual On Jury Trial Procedures [3.14B. Juror Exposure To Extrinsic Influences: Evidentiary Hearing].

See also A Manual On Jury Trial Procedures [3.14C. Juror Exposure To Extrinsic Influences: Types Of Extraneous Influences].

See also A Manual On Jury Trial Procedures [5.1C Communications With A Deliberating Jury: Extrinsic Evidence During Deliberations].

See also generally, NCJIC  305.10.2 [Juror Exposure To Extrinsic Matters].

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    See NCJIC 276.1.6 [Challenge To "Juror Snitch" Instruction].

    See also NCJIC 280.4 [Jury Nullification: Strategy Note].

    See also NCJIC 286.1.4 [Removal Of Dissenting (Holdout) Juror When Jury Is Deadlocked].