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 VOLUME 13 - CHAPTER 288
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Chapter 288: Post-Verdict Issues And Instructions

    288.1 Judge Must Not Commend Or Criticize Jurors For Their Verdict
    288.2 Juror Statements Regarding Failure To Follow Instructions Should Not Be Excluded Under Domestic Rules Of Evidence
    288.3 Post-Verdict Communications With Jurors Should Not Be Prohibited Without A Showing Of Good Cause
    288.4 Defendant Should Be Permitted To Prove Juror Agreement To Disregard An Instruction

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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 VOLUME 13 - CHAPTER 288

    288.1    Judge Must Not Commend Or Criticize Jurors For Their Verdict

RATIONALE: If the judge commends or criticizes the jurors for their verdict this may improperly imply expectations in future cases.

POINTS AND AUTHORITIES: It has been widely recognized that a judge should "not commend or criticize jurors for their verdict other than in a court order or opinion, lest doing so imply a judicial expectation in future cases, and thereby impair a juror's ability to be fair and impartial in a subsequent case." (U.S. v. Bonilla (1991) 952 F2d 597, 59-600 [internal quote marks omitted] [quoting 1990 ABA Model Code of Judicial Conduct Canon 3 B(10) and commentary]; see also Canon 3(10) of the Calif. Code of Judicial Ethics adopted by the Supreme Court January 15, 1996 ["A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community"]; CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.94 [Comment on Verdict - Note] p. 186 (Bar Association of the District of Columbia, 4th ed. 1993); O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 9.08 [Discharge of Jury] pp. 618-22 (West, 5th ed. 2000) ; In re Code of Judicial Conduct (FL 1994) 643 So2d 1037, 1046.) The rationale for this rule is to avoid any implication of a judicial expectation in future cases which may impair a juror's ability to be fair and impartial in a subsequent case. (Ibid.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 10.1].

    Members [and alternate members] of the jury. Your service as jurors in this case is now completed. On behalf of the [Superior] [Municipal] Court, I thank you for giving your time and efforts.

[See U.S. v. Bonilla (1991) 952 F2d 597; CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.60 [Post Verdict Juror Admonition/Order] ¶ 1 (West, 6th Ed. 1996).]

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 VOLUME 13 - CHAPTER 288

PRACTICE NOTE: If a juror affidavit evidences a subjective failure to abide by the jury instructions, it should be considered, notwithstanding any evidentiary rules to the contrary (e.g., FRE 606(b)), because of the overriding federal constitutional concerns of fair trial, due process and trial by jury. (5th, 6th and 14th Amendments.) (See Durr v. Cook (5th Cir. 1979) 589 F2d 891, 894; In re Stankewitz (CA 1985) 40 C3d 391 at 398, fn 2 [220 CR 382]; 3 Weinstein, Evidence (1982) para. 606 [04], pp. 606-27; see also Parker v. Gladden (1966) 385 US 363, 363-366 [87 SCt 468; 17 LEd2d 420] [Supreme Court relied on juror declaration as to the influence of bailiff misconduct]; see also NCJIC 288.4 [Defendant Should Be Permitted To Prove Juror Agreement To Disregard An Instruction].)

    Moreover, "a rule of evidence may not be enforced if it would infringe the right to a fair trial." (People v. Corona (CA 1989) 211 CA3d 529, 544 [259 CR 524]; Hammarley v. Superior Ct. of Sacramento Co. (CA 1979) 89 CA3d 388, 401-402 [153 CR 608].) And, the U.S. Supreme Court has consistently held that domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (1987) 483 US 44, 61 [107 SCt 2704; 97 LEd2d 37]; Green v. Georgia (1979) 442 US 95, 97 [99 SCt 2150; 60 LEd2d 738]; Davis v. Alaska (1974) 415 US 308, 316 [94 SCt 1105; 39 LEd2d 347]; Chambers v. Mississippi (1973) 410 US 284, 295 [93 SCt 1038; 35 LEd2d 297]; Washington v. Texas (1967) 388 US 14, 23 [87 SCt 1920; 18 LEd2d 101].)

    The Supreme Court has applied a balancing test in resolving conflicts between state rules of evidence and federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence. (Chambers, supra, 410 US at 295; Green v. Georgia, supra, 442 US at 97; Washington v. Texas, supra, 388 US at 19-23.) Several federal circuit courts of appeal have also utilized such a test. (Pettijohn v. Hall (1st Cir. 1979) 599 F2d 476, 486; Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967, 972; Alicea v. Gagnon (7th Cir. 1982) 675 F2d 913, 923; Perry v. Rushen (9th Cir. 1983) 713 F2d 1447, 1452;.) This balancing principle has also been recognized in California. (See People v. Babbitt (CA 1988) 45 C3d 660, 684 [248 CR 69]; People v. Reeder (CA 1978) 82 CA3d 543, 553 [147 CR 275].)

Annotation, Propriety Of, And Procedure For, Ordering Names And Identities Of Jurors To Be Withheld From Accused In Federal Criminal Trial -- "Anonymous Juries," 93 ALR Fed 135.

"Juror Privacy Issues Versus The Right To Juror Information" by Kate Johnston, California Attorneys for Criminal Justice, FORUM, July 1998.

Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 78.

Abraham S. Goldstein, Jury Secrecy and the Media: The Problem of Postverdict Interviews, 1993 U.Ill.L.Rev. 295, 296-97 (1993).

Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998).

See also Manual On Recurring Problems In Criminal Trials [6. Release Of Juror Names And Addresses].

See also Manual On Recurring Problems In Criminal Trials [22a. Interviewing Of Jurors After Verdict: By Counsel].

See also Manual On Recurring Problems In Criminal Trials [22b. Interviewing Of Jurors After Verdict: By News Media].

See Manual On Recurring Problems In Criminal Trials [23. Testimony By Jurors That May Impeach Verdict].

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VOLUME 13 - CHAPTER 288

PRACTICE NOTE: "Whenever a court seals the names and addresses of jurors a collision among various constitutional guarantees occurs. By precluding the public and, in particular, the press, from access to the names and addresses of the jurors, the press' First Amendment right of access to criminal trials is implicated. [Citation.] The disclosure or nondisclosure of such information also implicates a defendant's 6th Amendment and 14th Amendment Due Process right to an open trial. [Citation.] Finally, the privacy interests of the jurors in the information revealed during voir dire are implicated by such disclosure. [Citation.]." (U.S. v. Antar (NJ 1993) 839 FSupp 293, 300.)

    As a result, "the decision to impanel an anonymous jury ... is a drastic measure, which should be undertaken only in limited and carefully delineated circumstances." Therefore, anonymous juries are permissible only "when needed to ensure against a serious threat to jury safety ...." (U.S. v. Krout (5th Cir. 1995) 66 F3d 1420, 1427; U.S. v. Paccione (2nd Cir. 1991) 949 F2d 1183, 1192; U.S. v. Sanchez (5th Cir. 1996) 74 F3d 562, 564; see also NCJIC 17.4.1 [Juror Anonymity Improper Without A Good Cause].)

    The same principles should permit post-conviction counsel to have the ability to communicate with the jurors for purposes of appeal or habeas corpus. Juror anonymity during these post-trial proceedings impacts the defendant's federal constitutional rights to effective assistance of counsel, trial by jury and due process, both at trial, and on appeal (see e.g., Evitts v. Lucey (1985) 469 US 387, 400-405 [105 SCt 830; 83 LEd2d 821] [effective counsel on appeal]; Cole v. Arkansas (1948) 333 US 196, 201-02 [68 SCt 514; 92 LEd 644] [due process on appeal]) by curtailing the defendant's right to assure that the jurors correctly and fairly tried the case. Nor is the constitutional abridgement lessened by allowing access to the jurors upon a showing of "good cause." It is for the very purpose of developing good cause that the defendant needs to contact the jurors in the first place.

    In sum, just as juror anonymity during trial is a "drastic measure" which jeopardizes the fairness of the trial, juror anonymity during the post-verdict proceedings jeopardizes the fairness of both the trial and the post-verdict process. Hence, as with pretrial anonymity, post-trial anonymity should only be permitted upon a showing of good cause.

    See also NCJIC 288.4 [Defendant Should Be Permitted To Prove Juror Agreement To Disregard An Instruction].

BRIEFING AVAILABLE: Click here. [Brief Bank # B-910].

RESEARCH NOTES:

Annotation, Propriety Of, And Procedure For, Ordering Names And Identities Of Jurors To Be Withheld From Accused In Federal Criminal Trial -- "Anonymous Juries," 93 ALR Fed 135.

"Juror Privacy Issues Versus The Right To Juror Information" by Kate Johnston, California Attorneys for Criminal Justice, FORUM, July 1998.

Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 78.

Abraham S. Goldstein, Jury Secrecy and the Media: The Problem of Postverdict Interviews, 1993 U.Ill.L.Rev. 295, 296-97 (1993).

Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998).

See also Manual On Recurring Problems In Criminal Trials [6. Release Of Juror Names And Addresses].

See also Manual On Recurring Problems In Criminal Trials [22a. Interviewing Of Jurors After Verdict: By Counsel].

See also Manual On Recurring Problems In Criminal Trials [22b. Interviewing Of Jurors After Verdict: By News Media].

See Manual On Recurring Problems In Criminal Trials [23. Testimony By Jurors That May Impeach Verdict].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 288

APPELLATE PRACTICE NOTE: An agreement among the jurors evidencing a deliberate refusal to follow the court's instructions should be admissible as an "overt act." (People v. Perez (CA 1992) 4 CA4th 893, 905-09 [6 CR2d 141].) "Any actual, express agreement between two or more jurors to disregard their oaths and instructions constitutes neither subjective impression nor opinion, but an overt act. It thus is subject to judicial inquiry even though that inquiry may not be expanded to ask what impressions or opinions motivated jurors to enter into the agreement in the first instance. This is true, ... , whether the agreement is to decide the case by aggregation and average, by lot, by game or chance, by any other artifice or improper manner, or by a simple overt agreement to ignore the law and the court's instructions." (State v. Devoney (FL 1996) 675 So2d 155, 157-58.)

    Furthermore, if a juror affidavit evidences a subjective failure to abide by the jury instructions, it should be considered, notwithstanding EC 1150, because of the overriding federal constitutional concerns of fair trial, due process and trial by jury. (6th and 14th Amendments.) For example, in Parker v. Gladden (1966) 385 US 363, 363-366 [87 SCt 468; 17 LEd2d 420], the Supreme Court suggested that in criminal cases these constitutional rights may require inquiry into the circumstances regarding a jury's deliberation regardless of the jurisdiction's rule on impeachment by jurors. (See also Durr v. Cook (5th Cir. 1979) 589 F2d 891, 893; In re Stankewitz (CA 1985) 40 C3d 391, 398, fn 2 [220 CR 382].)

    Moreover, "a rule of evidence may not be enforced if it would infringe the right to a fair trial." (People v. Corona (CA 1989) 211 CA3d 529, 544 [259 CR 524]; Hammarley v. Superior Ct. of Sacramento Co. (CA 1979) 89 CA3d 388, 401-402 [153 CR 608].) And, the U.S. Supreme Court has consistently held that domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (1987) 483 US 44, 55 [107 SCt 2704; 97 LEd2d 37]; Green v. Georgia (1979) 442 US 95, 96 [99 SCt 2150; 60 LEd2d 738]; Davis v. Alaska (1974) 415 US 308, 316 [94 SCt 1105; 39 LEd2d 347]; Chambers v. Mississippi (1973) 410 US 284, 294 [93 SCt 1038; 35 LEd2d 297]; Washington v. Texas (1967) 388 US 14, 22 [87 SCt 1920; 18 LEd2d 1019].)

    The Supreme Court has applied a balancing test in resolving conflicts between state rules of evidence and federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence. (Chambers, supra, 410 US at 295; Green v. Georgia, supra, 442 US at 97; Washington v. Texas, supra, 388 US at 19-23.) Several federal circuit courts of appeal have also utilized such a test. (Pettijohn v. Hall (1st Cir. 1979) 599 F2d 476, 486; Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967; Alicea v. Gagnon (7th Cir. 1982) 675 F2d 913, 923; Perry v. Rushen (9th Cir. 1983) 713 F2d 1447.) This balancing principle has also been recognized in California. (See People v. Babbitt (CA 1988) 45 C3d 660, 684 [248 CR 69]; People v. Reeder (CA 1978) 82 CA3d 543, 553 [147 CR 275].)

   See also NCJIC 288.3 [Post-Verdict Communications With Jurors Should Not Be Prohibited Without A Showing Of Good Cause].

Annotation, Propriety Of, And Procedure For, Ordering Names And Identities Of Jurors To Be Withheld From Accused In Federal Criminal Trial -- "Anonymous Juries," 93 ALR Fed 135.

"Juror Privacy Issues Versus The Right To Juror Information" by Kate Johnston, California Attorneys for Criminal Justice, FORUM, July 1998.

Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 78.

Abraham S. Goldstein, Jury Secrecy and the Media: The Problem of Postverdict Interviews, 1993 U.Ill.L.Rev. 295, 296-97 (1993).

Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998).

See also Manual On Recurring Problems In Criminal Trials [6. Release Of Juror Names And Addresses].

See also Manual On Recurring Problems In Criminal Trials [22a. Interviewing Of Jurors After Verdict: By Counsel].

See also Manual On Recurring Problems In Criminal Trials [22b. Interviewing Of Jurors After Verdict: By News Media].

See Manual On Recurring Problems In Criminal Trials [23. Testimony By Jurors That May Impeach Verdict].