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    278.1 Duty to Deliberate Before Returning Verdict
    278.2 Duty To Deliberate: Jury Must Only Discuss Case When Entire Jury Is Together In The Juryroom
    278.3 Duty To Deliberate: Informing Jury As To Possibility Of A Hung Jury
    278.4 Jury's Duty Is To Decide If The Prosecution Has Met Its Burden, Not To Find Or Seek "The Truth"
    278.5 Duty To Deliberate: Impropriety of Juror-On-Juror Coercion
    278.6 Duty To Deliberate: Whether Jury May Think About The Case And Make Notes While Deliberations Are In Recess
    278.7 Duty to Deliberate: Dismissal Of Juror For Failure To Deliberate
    278.8 How Jurors Should Approach Their Task: Clarification Of Wording
    278.9 Duty To Deliberate: Jury Should Take As Much Time As It Feels Is Necessary
    278.10 Duty of Jury To Deliberate: Federal Circuit Model Instructions And Notes

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    278.1    Duty Of Jury To Deliberate Before Returning Verdict

PRACTICE NOTE: "Deliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member's viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint." (People v. Collins (CA 1976) 17 C3d 687, 693 [131 CR 782].)  In fact, the trial court has an affirmative duty to inquire into an allegation that a juror is refusing to deliberate and to discharge that juror if he or she is, in fact, refusing to engage in meaningful deliberations. (People v. Cleveland (CA 2001) 25 C4th 466, 484-85 [106 CR2d 313]; see also People v. Thomas (CA 1984) 26 CA4th 1328, 1333 [32 CR2d 177] [trial court may properly dismiss juror for refusal to deliberate].)  Hence, the jury should be "encouraged to discuss the case." (Vomaska v. City of San Diego (CA 1997) 55 CA4th 905, 913 [64 CR2d 492] [jurors should be "encouraged" to deliberate but no constitutional impairment or juror misconduct in civil case where jury rendered verdict after straw vote at beginning of deliberations]; see also People v. Thomas (CA 1994) 26 CA4th 1328, 1332-33 [32 CR2d 177] [discharge of juror was proper where juror refused to deliberate based on uncooperative and closed-minded behavior during deliberations]; People v. Johnson (CA 1993) 6 C4th 1, 21 [23 CR2d 593] [juror inattentiveness during trialis also grounds for dismissal].)

See generally, NCJIC 278.10 [Duty to Deliberate: Federal Circuit Model  Instructions And Notes]. 

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    278.2    Duty To Deliberate: Jury  Must Only Discuss Case When Entire Jury Is Together In The Juryroom

RATIONALE: Because deliberations must be the common experience of all jurors, the jury should understand that no discussion of the case should take place except in the juryroom when all jurors are present.

POINTS AND AUTHORITY: The jury should be instructed that it may discuss the case only when all twelve jurors are present in the juryroom, that deliberations must cease when any jurors are absent, and that during the recess the jurors should refrain from discussing the case with anybody at home, anybody on the jury, court staff, members of the public or anybody at all until all jurors have returned to the juryroom. (See People v. Morales (CA 1989) 48 C3d 527, 564 [257 CR 64]; Giouzelis v. McDonald (CA 1981) 119 CA3d 436, 444 [174 CR 58]; Griesel v. Dart Industries, Inc. (CA 1979) 23 C3d 578, 584 [153 CR 213] [a verdict cannot stand unless the jurors "reach their consensus through deliberations which are the common experience of all of them"]; People v. Roberts (NY 1991) 569 NYS2d 53, 57].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 7.13].

See generally, NCJIC 278.10 [Duty of Jury To Deliberate: Federal Circuit Model Instructions And Notes]. 

    You must not discuss the case among yourselves except when all twelve jurors are together in the juryroom.

[Source: NCJIC.]

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    278.3    Duty To Deliberate: Informing Jury As To Possibility Of A Hung Jury

RATIONALE: There is a danger of an unreliable verdict unless the jury understands that it is not required to reach a verdict.

POINTS AND AUTHORITIES: Unless the jury understands that it is not required to reach a verdict there is a danger of improper juror coercion. (See generally NCJIC 286.2.3 [Deadlock: Instructions Should Inform Jury That A Verdict Need Not Be Reached].)

    Accordingly, in People v. Hines (CA 1997) 15 C4th 997, 1069 [64 CR2d 594] the defendant argued that the trial court erred in refusing an instruction which informed the jury that the possibility of a hung jury is an "inevitable by-product" of the unanimous jury requirement. The court rejected this argument, observing that it has never suggested that trial courts should give such an instruction on request. However, in Hines the court did orally supplement its written instructions with comments which incorporated the essence of the defendant's requested instruction. (Hines, 15 C4th at 1069.) Hence, an instruction in the language of the trial court's oral instruction in Hines may be appropriate. (See also State v. Vaughn (ID 1993) 861 P2d 1241, 1248 [possibility of hung jury sufficiently conveyed by instruction that "[t]he verdict must express the individual opinion of each juror ... you should not change your conclusions you have reached just ... because one or more or all of your fellow jurors may have come to a different conclusion, or merely to bring about a unanimous verdict"].)

    See also NCJIC 286.2.4 [Deadlock: Juror Should Not Change Mind Just To Reach Verdict].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 10.2].

See generally, NCJIC 278.10 [Duty of Jury To Deliberate: Federal Circuit Model Instructions And Notes]. 

    Nothing I have said requires you to reach a unanimous verdict. That is, before you reach a verdict, you would be required to be unanimous. We are not going to keep you here forever until you arrive at a unanimous verdict. We expect you to do your best to seek to achieve a verdict, if you can.

[Source: People v. Hines (CA 1997) 15 C4th 997, 1069 [64 CR2d 594].]

    The verdict must express the individual opinion of each juror. You should not change your conclusions you have reached just because one or more or all of your fellow jurors may have come to a different conclusion, or merely to bring about a unanimous verdict.

[Source: State v. Vaughn (ID 1993) 861 P2d 1241, 1248.]

    Do not ever change your mind just because other jurors see things differently, or just to get the case over with. As I told you before, in the end, your vote must be exactly that -- your own vote. As important as it is for you to reach unanimous agreement, it is just as important that you do so honestly and in good conscience.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.04 [Deadlocked Jury] ¶ 5 (1991).]

    No juror may, under any circumstances, compromise a consciously held individual position to arrive at a unanimous verdict.

[See People v. Sharff (NY 1975) 343 NE2d 765; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:40 [Allen Charge] (West, 1999).]

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    See NCJIC 270.3.1 [Jury's Duty Is To Decide If The Prosecution Has Met Its Burden, Not To Find Or Seek "The Truth"].

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RATIONALE: There may be a tendency for some jurors to use coercion on other jurors in an effort to persuade them to change their position. Hence, a cautionary instruction may be appropriate to protect against such improper coercion.

POINTS AND AUTHORITIES: Generally, courts are reluctant to conduct post-verdict inquiry into juror-on-juror coercion because statutes, such as FRE Rule 606(b) and California Evidence Code § 1150 preclude inquiry into the jurors' subjective thought processes. (See e.g., See People v. Cleveland (CA 2001) 25 C4th 466, 484 [106 CR2d 313]; see also People v. Keenan (CA 1988) 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. (See e.g, People v. Bradford (CA 1997) 15 C4th 1229, 1352 [65 CR2d 145] [coercion from "hostile jurors" averted by re-reading instructions on duty to deliberate and advised jurors to put aside any hard feelings and resume deliberations]; People v. Perry (CA 1904) 144 C 748, 750 [78 P 284] [juror oath requires each juror to act on his or her own judgement].)

    For example, in People v. Castorena (CA 1996) 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 Bradford, supra; Vomaska v. City of San Diego (CA 1997) 55 CA4th 905, 912 fn 12 [64 CR2d 492] [implying that overt conduct or statements showing jurors were pressured to close deliberations would be misconduct]; People v. Lavender (NY 1986) 502 NYS2d 439, 502 [503 NE2d 121] [conviction reversed where coercion, harassment and intimidation was revealed prior to verdict]; Wharton v. People (CO 1939) 90 P2d 615, 618 [death sentence reversed where majority pressured holdout juror to vote for death]; cf., People v. Mc Neal (CA 1979) 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 trend against post-verdict inquiry into the impact of such misconduct.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.13; 10.2].

Annotation, Impeachment Of Verdict By Juror's Evidence That He Was Coerced Or Intimidated By Fellow Juror, 39 ALR4th 800.

See generally, NCJIC 278.10 [Duty of Jury To Deliberate: Federal Circuit Model Instructions And Notes]. 

    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.

[Source: NCJIC.]

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PRACTICE NOTE: It has been held that it is permissible for jurors to individually contemplate the evidence and the outcome of the case while separated and to make notes regarding ideas which they wish to share in the deliberations with the other jurors. (See e.g., Bormann v. Chevron USA, Inc. (CA 1997) 56 CA4th 260, 263-64 [65 CR2d 321]; see also State v. Fuller (ME 1994) 660 A2d 915, 916-918 [no prejudice from jurors taking notes outside of the courtroom].) However, such private deliberation is contrary to the rule that deliberations should only take place by and among all twelve jurors in the juryroom. (See NCJIC 300.10.5 [Trial By Jury: Premature Discussion Or Deliberation Undermines Prosecution's Burden].)

    Accordingly, consideration should be given to instructing at the outset of the trial, during the separation admonition (prior to recess), and prior to the commencement of deliberations that private deliberation is improper juror misconduct. Additionally, the juror notetaking instruction should admonish the jurors not to make any notes which would constitute an attempt to evaluate or resolve the legal or factual issues in the case (and should not make written notes outside of the courtroom). (Cf., State v. Fuller (ME 1994) 660 A2d 915, 917 [fact that notes were taken outside of courtroom is not in and of itself sufficient to require the court to grant a new trial].)

See generally, NCJIC 278.10 [Duty of Jury To Deliberate: Federal Circuit Model Instructions And Notes]. 

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    278.7    Duty of Jury To Deliberate: Dismissal Of Juror For Failure To Deliberate

PRACTICE NOTE: A juror should not be dismissed merely for expressing doubt about the sufficiency of the evidence. (See U.S. v. Brown (DC Cir. 1987) 823 F2d 591, 596.) Nor should a holdout juror be excused when the jury is otherwise deadlocked unless the juror has committed serious and willful misconduct. (See generally People v. Hamilton (CA 1963) 60 C2d 105, 128 [32 CR 4].) Hence, dismissal of a juror is proper "only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution’s case." (U.S. v. Thomas (2nd Cir. 1997) 116 F3d 606, 617.)

    The trial court may not dismiss a deliberating juror if there is any reasonable possibility that the impetus for the dismissal stems from the juror's views on the merits of the case. (United States v. Symington (9th Cir. 1999) 195 F3d 1080, 1085.)

    Furthermore, the trial court must be very limited in its examination of the jurors: it may not question them about the contents of the deliberations. Therefore, when a request to dismiss a juror is made by the other jurors on the basis that the juror refuses to communicate her thoughts or reasons to the other jurors, or is being stubborn, "the court will likely prove unable to establish conclusively the reasons underlying" the dismissal request, and may not dismiss the juror. (Ibid.)

BRIEFING AND OPINION AVAILABLE: Click here. [Brief Bank # B-726 and Opinion Bank # O-227].

See generally, NCJIC 278.10 [Duty to Deliberate: Federal Circuit Model Instructions And Notes]. 

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RATIONALE: Without a cautionary instruction some jurors may be tempted to make emphatic statements at the beginning of deliberations which could have an adverse impact on the reliability of the deliberations and verdict.

POINTS AND AUTHORITIES: It is the jury's duty to engage in full, open-minded deliberation. (See NCJIC 278.1 [Duty Of Jurors To Deliberate Before Returning Verdict].) Emphatic expressions of opinion at the beginning of deliberations may discourage full discussion and interaction among all jurors and may make the jurors hesitate to change their view even if it is shown to be wrong. Full open-minded discussion and interaction during deliberations is important because it helps produce a reliable verdict.

See generally, NCJIC 278.10 [Duty of Jury To Deliberate: Federal Circuit Model Instructions And Notes]. 

    At the beginning of deliberations your attitude and conduct are important.  You should avoid making an emphatic expression of opinion or to state how you intend to vote at the outset. Remember that you are not partisans or advocates in this case. 

[See CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.41 [How Jurors Should Approach Their Task] (West, 6th Ed. 1996).]

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    278.9    Duty To Deliberate: Jury Should Take As Much Time As It Feels Is Necessary

    See NCJIC 286.2.5 [Deadlock: Jury May Take All The Time It Needs].

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    278.10    Duty of Jury To Deliberate: Federal  Circuit Model Instructions And Notes 

See 1st Circuit Pattern Jury Instructions - Criminal 6.03.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.24.

See also 6th Circuit Pattern Jury Instructions - Criminal 8.04.

See also 8th Circuit Model Jury Instructions - Criminal 3.02.

See also 8th Circuit Model Jury Instructions - Criminal 3.12.

See also 8th Circuit Model Jury Instructions - Criminal 10.02.

See also 9th Circuit Model Jury Instructions - Criminal 7.1.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 11.

See also Federal Judicial Center, Pattern Criminal Jury INSTRUCTION 10.