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276.1 Deliberations: Miscellaneous Issues

    276.1.1 Deliberations: Reference To Availability Of Written Instructions Should Be Made At The End Of The Instructions
    276.1.2 Deliberations: Manner Of Recording Instruction Of No Significance
    276.1.3 Deliberations: Explanation Of "Not Guilty" Verdict
    276.1.4 Discovery Of Additional Evidence During Deliberations
    276.1.5 Temporary Adjournment Of Deliberations As Denial Of Fair Trial
    276.1.6 Deliberations: Challenge To "Juror Snitch" Instruction
    276.1.7 Deliberations: Jury Must Not Consider Penalty Between Guilt And Penalty Phase Trials

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PRACTICE NOTE: If at the outset of the instructions the jury is told that written instructions will be available, there is a danger that the jury will not listen as closely to the oral instructions with the knowledge that they will have the written instructions to refer to later. This danger is particularly significant since the jurors' reference to the written instructions without hearing the oral instructions may be inherently prejudicial. (See FORECITE National™ 2.1.2 [Written Instructions In Lieu Of Oral Instructions As Reversible Error].) Accordingly, reference to the availability of the written instructions should be made at the end rather than the beginning of the instructions.

See Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

See also generally, FORECITE National™ 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

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RATIONALE: When instructions have been modified or interlineated by hand the jurors may give undue weight to those handwritten changes.

POINTS AND AUTHORITIES: Normally a fully typed, "sanitized" version of the written instructions should be given to the jury. (See FORECITE National™ 2.2.1 [Sanitizing The Written Instructions: General Rules].) However, in some situations when this is not possible an instruction may be appropriate explaining that no special significance should be given to the handwritten portions of the instructions. (See CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.45 [Manner Of Recording Instruction Of No Significance–Content Only Governs] (West, 6th Ed. 1996).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.10].

See generally, FORECITE National™ 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

    Some of the instructions have been modified or had blanks filled in by typing or handwriting. Also, portions of the instructions have been added by handwriting or deleted by lining out. Do not be speculate why any modification or deletion was made or about what was changed or deleted .

    All portions of the instructions, whether typed, printed or handwritten, are of equal importance. 

[See CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.45 [Manner Of Recording Instruction Of No Significance–Content Only Governs] (West, 6th Ed. 1996).]

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 VOLUME 13 - CHAPTER 276

RATIONALE: The verdict form entitled "not guilty" may be confusing or misleading to lay jurors who could equate such a verdict with a finding of "factual innocence."

POINTS AND AUTHORITIES: It is essential that the jury understand that the "not guilty" verdict form corresponds to the prosecution's burden of proof as required by the and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (See In re Winship (1970) 397 US 358, 363-64 [90 SCt 1068; 25 LEd2d 368]; see also Sullivan v. Louisiana (1993) 508 US 275, 277 [113 SCt 2078; 124 LEd2d 182]; People v. Hall (CA 1980) 28 C3d 143, 159 [167 CR 844]; People v. Griffin (CA 1963) 60 C2d 182, 191 [32 CR 24].)

    For additional instructions relating to this issue:

    See FORECITE National™ 12.2.1 [Charges And Burden Of Proof].

    See FORECITE National™ 12.2.2 [Charging Document Is Not Evidence].

    See FORECITE National™ 270.2.2 [Duty To Presume Defendant Innocent: Defendant's Attempt To Refute Prosecution Evidence Does Not Shift Burden].

    See FORECITE National™ 270.2.7 [Prosecution Bound by Defendant's Statement Unless Contrary Evidence Presented].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.1].

NOTES: Even though the verdicts should offer the jury the choice of guilty or not guilty (rather than innocent), the presumption of innocence instruction must inform the jury that the defendant is presumed innocent unless proven guilty. (See FORECITE National™ 270.2.7 [Prosecution Bound by Defendant's Statement Unless Contrary Evidence Presented].)

See generally, FORECITE National™ 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

    You will note that [as to each count] there are two possible verdicts: "not guilty" or "guilty." These verdicts should reflect your decision as to whether or not the prosecution has proven the defendant guilty beyond a reasonable doubt. The "guilty" verdict is for use when the prosecution has proven guilt beyond a reasonable doubt and the "not guilty" verdict is for use when the prosecution has not proven guilt beyond a reasonable doubt. It is not necessary for you to conclude that the defendant is factually innocent in order to return a "not guilty" verdict. Such a verdict only means that the prosecution has not met its burden of proving the defendant guilty beyond a reasonable doubt.

[Source: FORECITE National™.]

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PRACTICE NOTE: If during the course of its deliberations the jury discovers evidence (e.g., a bottle of pills in the victim’s coat pocket) the court should mark the newly discovered evidence as a court exhibit and reopen the case to permit introduction of additional evidence. (See People v. Scott (NY 1983) 465 NYS2d 819, 820 [closed knife in victim’s pants pocket]; see also Dyson v. State (MD 1992) 615 A2d 1182, 1186 [case may be reopened to permit additional evidence after jury has begun its deliberations]; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:27 [Charging The Jury-Exhibits, Notes, etc., In Deliberating Room] (West, 1999).)

BRIEFING AVAILABLE: Click here. [Brief Bank # B-914].

Wharton’s Criminal Procedure (West, 13th ed. 1989) § 482, p. 113.

Annotation: Propriety of Reopening Criminal Case In Order To Present Omitted Or Overlooked Evidence, After Submission To Jury But Before Return Of Verdict, 87 ALR2d 849.

See also Manual On Recurring Problems In Criminal Trials [18. Sending Exhibits And Other Items To Juryroom].

See generally, FORECITE National™ 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

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PRACTICE NOTE: Adjournment of further deliberations for 11 days, without good cause and despite the availability of alternates, deprived defendant of a fair trial. (People v. Santamaria (CA 1991) 229 CA3d 269, 278 [280 CR 43].)

See generally, FORECITE National™ 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

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PRACTICE NOTE:

    I.    Improper Chilling Effect On Deliberations. In California, CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.41.1 [Juror Misconduct] p. 225 (West, 6th Ed. 1996) (2000 Pocket Part) was added in an apparent effort to preclude jurors from engaging in nullification. (No authority or Use Note was included with CALJIC 17.41.1.) This instruction provides as follows:

    The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on [penalty or punishment, or] any [other] improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation.

    This instruction was disapproved in People v. Engelman (CA 2002) 28 C4th 436 [121 CR2d 862].

    The legal arguments against the instruction are strong. The instruction may improperly chill the deliberations and undermine the independence of the jury. Private and secret deliberations are essential features of the jury trial guaranteed by the 6th Amendment and Article I, § 16 of the California Constitution. (People v. Oliver (CA 1987) 196 CA3d 423, 429 [241 CR 804]; U.S. v. Brown (DC Cir. 1987) 823 F2d 591, 596.) However, CALJIC 17.41.1, pointedly tells each juror that he or she is not guaranteed privacy or secrecy. At any time, the deliberations may be interrupted and a fellow juror may repeat his or her words to the judge and allege some impropriety, real or imagined, which the juror believed occurred in the juryroom. The jurors are not only threatened with exposure, they are also left to wonder what consequences will follow exposure. Would "improper" words or intentions be punished by removal from the jury? Mentioned in the press? Criminal sanctions? The uncertainty likely will cause jurors to forego independence of mind, conceal concerns they may have about the state's evidence, and hurry toward consensus.

    The instruction, in short, assures the jurors that their words might be used against them and that candor in the juryroom could be punished. The instruction therefore chills speech and free discourse in a forum where "free and uninhibited discourse" is most needed. (Attridge v. Cencorp (2nd Cir. 1987) 836 F2d 113, 116.) The instruction virtually assures "the destruction of all frankness and freedom of discussion" in the juryroom. (McDonald v. Pless (1915) 238 US 264, 268 [35 SCt 783; 59 LEd2d 1300].) Accordingly, the instruction improperly inhibits free expression and interaction among the jurors which is so important to the deliberative process. (See People v. Collins (CA 1976) 17 C3d 687, 693 [131 CR 782].) Where jurors find it necessary or advisable to conceal concerns from one another, they will not interact and try to persuade others to accept their viewpoints. "Juror privacy is a prerequisite of free debate, without which the decision making process would be crippled." (U.S. v. Symington (9th Cir. 1999) 195 F3d 1080, 1086, citing Note, Public Disclosures of Jury Deliberations, 98 Harv. L. Rev. 886, 889.)

    Free exchange and discourse during deliberations is so fundamental that it has been treated as an overriding policy consideration in a variety of contexts. For example, even when there is an allegation of serious juror misconduct, the trial court is precluded from inquiring into the specifics of the deliberations. "[A] court may not delve deeply into a juror's motivations because it may not intrude on the secrecy of the jury's deliberations. There are important reasons why a trial judge must not compromise the secrecy of the jury deliberations. First, if trial judges were permitted to inquire into the reasoning behind jurors' views of pending cases, it would invite trial judges to second-guess and influence the work of the jury. Second, a trial judge's examination of juror deliberations risks exposing those deliberations to public scrutiny. Such exposure, in turn, would jeopardize the integrity of the deliberative process. As Justice Cardozo put it, freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world." [Internal citations and quotation marks omitted]. (U.S. v. Symington, supra, at 1086; see also U.S. v. Thomas (2nd Cir. 1997) 116 F3d 606, 619-20.) And, free jury discourse is so important that as a matter of policy, post-verdict inquiry into the internal deliberative process has been precluded despite allegations of serious improprieties. (See e.g., Tanner v. U.S. (1987) 483 US 107, 122 [107 SCt 2739; 97 LEd2d 90] [inquiry into juror intoxication during deliberations not permitted]; U.S. v. Marques (9th Cir. 1979) 600 F2d 742, 747 [no evidence permitted as to juror compromise].) For the same policy reasons, CALJIC 17.41.1 should not be allowed to chill free exchange and discourse during deliberations.

    II.   Improper Involvement Of Judge In Assisting Majority Jurors To Impose Their Will Upon The Minority. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.41.1 [Juror Misconduct] (West, 6th Ed. 1996) may improperly undermine the independence of the jury by involving the judge in assisting the majority jurors to impose their will upon the "hold-out" juror. (See generally FORECITE National™ 278.5 [Duty To Deliberate: Impropriety of Juror-On-Juror Coercion].) Moreover, while there is no obligation to instruct the jurors that they have the power to nullify (see FORECITE National™ 280.1 [Juror's Power And Right To Nullify]), it is another question whether the judge may affirmatively prevent a given juror from doing so. (See FORECITE National™ 280.2 [Response To Juror Inquiry Regarding Nullification: Jury Should Not Be Misled Regarding Its Right To Nullify]; see also FORECITE National™ 280.3 [Propriety Of Affirmative Anti-Nullification Instructions And/Or Sanctions In Response To Threatened Nullification].)

    Because CALJIC 17.41.1 does just that, it should be omitted unless the defendant requests it.

    III.   Denial Of Right To Juror Unanimity And Fair Trial By Jury. The right to a unanimous jury verdict is abridged when a deliberating juror is dismissed and the record reveals a possibility the dismissal occurred because that juror had doubts about the sufficiency of the government's evidence. (U.S. v. Thomas (2nd Cir. 1997) 116 F3d 606, 611-613, 624; U.S. v. Symington (9th Cir. 1999) 195 F3d 1080, 1088; U.S. v. Brown (DC Cir. 1987) 823 F2d 591, 596.)

    When such a dismissal is in effect manipulated by majority jurors who are frustrated with a holdout juror, this impermissibly permits the majority jurors to exercise control of the composition of the jury. (See People v. Roberts (CA 1992) 2 C4th 271, 325 [6 CR2d 276].)

    When a defendant exercises his right to trial by jury, pursuant to the 6th Amendment and California Constitution, article I, section 16, there is a right to the verdict by a unanimous jury. (Apodaca v. Oregon (OR 1972) 406 US 404, 406 [92 SCt 1628; 32 LEd2d 184].) That right is abridged by CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.41.1 [Juror Misconduct] (West, 6th Ed. 1996) because it coerces potential holdout jurors into agreeing with the majority. (See Perez v. Marshall (9th Cir. 1997) 119 F3d 1422, 1426-1428.)

See generally, FORECITE National™ 305.3.8 [Conduct And Duty Of The Jury: Deliberations].

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

    See also FORECITE National™ 303.2.2 [Death Penalty: Jury Must Not Consider Penalty Between Guilt And Penalty Phase Trials].

See generally, FORECITE National™ 305.3.8 [Conduct And Duty Of The Jury: Deliberations].