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297.2 Helpful Rules For Showing Prejudice On Appeal

    297.2.1 Prejudice On Appeal: Jury Instructions Are Of Critical Importance
    297.2.2 Prejudice On Appeal: Influence Of The Judge
    297.2.3 Prejudice On Appeal: Cumulative Prejudice
    297.2.4 Prejudice On Appeal: Misinstruction On A Vital Issue In A Close Case
    297.2.5 Prejudice On Appeal: Prosecutorial Exploitation Of The Error In Argument
    297.2.6 Prejudice On Appeal: Reference To Erroneous Instructions
    297.2.7 Prejudice On Appeal: Exploitation Of Erroneous Failure To Instruct
    297.2.8 Prejudice On Appeal: Defense Counsel Forced To Make Closing Argument Without Support Of Instruction
    297.2.9 Prejudice On Appeal: Erroneous Or Incomplete Instructions In Response To Jury Inquiry
    297.2.10 Prejudice On Appeal: Correct Preliminary Instruction Does Not Cure Error
    297.2.11 Prejudice On Appeal: Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction
    297.2.12 Prejudice On Appeal: Correct Supplemental Instruction Does Not Cure Error In Original Instructions
    297.2.13 Prejudice On Appeal: Erroneous Instruction Cannot Be Cured By A Correct One
    297.2.14 Prejudice On Appeal: Prompt Return Of Verdict: After Jury Hears Erroneous Instruction
    297.2.15 Prejudice On Appeal: Quick Verdict After Jury Hears Erroneous Or Incomplete Charge
    297.2.16 Prejudice On Appeal: Return Of Verdict By Previously Deadlocked Jury
    297.2.17 Prejudice On Appeal: Cross-Examination Does Not Cure Instructional Error
    297.2.18 Prejudice On Appeal: Jury May Accept Some Portions Of A Witness' Testimony And Reject Other Portions
    297.2.19 Prejudice On Appeal: Conviction For Crime Not Proven By The Evidence
    297.2.20 Only One Juror Need Be Affected For Instructional Error To Be Prejudicial
    297.2.21 Irrelevant Instructions Are Prejudicial If Jury Is Misled
    297.2.22 Instruction In Absence Of Counsel: Analysis Of Prejudice
    297.2.23 Erroneous Instruction As To One Charge May Be Prejudicial As To Others
    297.2.24 Consideration Of Instructions To Evaluate Prejudice From Jury Misconduct
    297.2.25 Prejudice On Appeal: Correct Definition Of Elements In Preamble Of Instruction Does Not Cure Error In Body Of The Instruction
    297.2.26 Jury Misconduct: Standard Of Prejudice

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APPELLATE PRACTICE NOTE: Jury instructions provide essential guidance to the jury. (See Carter v. Kentucky (1981) 450 US 288, 302 [101 SCt 1112; 67 LEd2d 241]; Bollenbach v. U.S. (1946) 326 US 607, 612 [66 SCt 402; 90 LEd2d 350]; People v. Thompkins (CA 1987) 195 CA3d 244, 250 [240 CR 516].)

    "Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law." (Carter v. Kentucky (1981) 450 US 288, 302 [101 SCt 1112; 67 LEd2d 241].)

    "It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations." (Gregg v. Georgia (1976) 428 US 153, 193 [96 SCt 2909; 49 LEd2d 859] [opn. of Stewart, Powell, and Stevens, JJ.].)

    "Discharge of the jury's responsibility for drawing appropriate conclusions from the testimony depended on discharge of the judge's responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria." (Bollenbach v. U.S. (1946) 326 US 607, 612 [66 SCt 402; 90 LEd 350].)

    "Many lawyers share the belief that instructions are given little consideration in the deliberations of jurors. While this may be true in some cases, I believe they follow them to the extent they understand and give up only when they become bewildered." (Werkman v. Howard Zink Corp. (CA 1950) 97 CA2d 418, 428 [218 P2d 43] Shinn, P.J. concurring.)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: "The charge [to the jury] is that part of the whole trial which probably exercises the weightiest influence upon the jurors." (Andres v. U.S. (1948) 333 US 740, 765 [68 SCt 880; 92 LEd 1055] [conc. opn. of Frankfurter, J.].)

    "'The influence of the trial judge on the jury is necessarily and properly of great weight,' [citations], and jurors are ever watchful of the words that fall from him." (Bollenbach v. U.S. (1946) 326 US 607, 612 [66 SCt 402; 90 LEd 350]; see also U.S. v. Wolfson (5th Cir. 1978) 573 F2d 216, 221 [judge's words "'carry an authority bordering on the irrefutable.' [Citation]"].)

    "Words of instruction of the trial judge are more likely to effect prejudice than the words of argument of the prosecutor." (People v. Morse (CA 1964) 60 C2d 631, 650 [36 CR 201].)

    "'Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials.' [Citation]." (People v. Lee (CA 1979) 92 CA3d 707, 715-16 [155 CR 128].)

    "[I]t is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling." (Quercia v. United States (1933) 289 US 466, 470 [53 SCt 698; 77 LEd 1321], quoting Starr v. United States (1894) 153 US 614, 626 [14 SCt 919; 38 LEd2d 841] [emphasis added]; see also People v. Rodriguez (CA 1986) 42 C3d 730, 770 [230 CR 667]; People v. Cook (CA 1983) 33 C3d 400, 413 [189 CR 159].)

    "It is a matter of common knowledge that jurors ... are very susceptible to the influence of the judge. ... [J]urors watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict." (People v. Frank (CA 1925) 71 CA 575, 581 [236 P 189].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: The combined effect of instructional errors and/or evidentiary errors may create cumulative prejudice. (See Harris v. Wood (9th Cir. 1995) 64 F3d 1432, 1438; Gonzales v. McKune (10th Cir. 2001) 247 F3d 1066, 1078-79 [Strickland and Brady errors may be considered together to determine whether they collectively undermine competence in the outcome of a trial]; Moore v. Reynolds (10th Cir. 1998) 153 F3d 1086, 1113 ["We evaluate whether cumulative errors were harmless by determining whether a criminal defendant's substantial rights were affected"]; People v. Hill (CA 1998) 17 C4th 800, 845 [72 CR2d 656] [numerous instances of prosecutorial misconduct and other errors at both stages of the death penalty trial were cumulatively prejudicial: the combined (aggregate) prejudicial effect of the errors was greater than the sum of the prejudice of each error standing alone]; State v. Strughold (MO 1998) 973 SW2d 876, 892.)

    When errors of federal constitutional magnitude combine with nonconstitutional errors, the combined effect of the errors should be reviewed under a Chapman standard.  (People v. Williams (CA 1971) 22 CA3d 34, 58-59 [99 CR 103]; see also In re Rodriguez (CA 1981) 119 CA3d 457, 469-70 [174 CR 67].)

    Cumulative errors may so infect the trial with unfairness as to make the resulting conviction a denial of 14th Amendment due process. (See NCJIC 300.1.15 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: "Unless instructional error is otherwise cured by other properly given instructions which enable the trier of fact properly to resolve the factual issue in dispute, it cannot be concluded that such instructional error which goes to the heart of the defense is harmless. [Citation]." (People v. Louie (CA 1984) 158 CA3d Supp 28, 45 [205 CR 247].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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    See NCJIC 272.4 [Prosecutor Misconduct During Summation/Closing Argument].

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APPELLATE PRACTICE NOTE: Prosecutorial reliance upon an erroneous instruction during closing argument is a factor tending to show prejudice. (See People v. Roder (CA 1983) 33 C3d 491, 505 [189 CR 501]; People v. Hannon (CA 1977) 19 C3d 588, 603 [138 CR 885]; see also Doe v. Burnham (7th Cir. 1993) 6 F3d 476, 481; State v. Jacks (OH 1989) 578 NE2d 512, 519 [prosecutor referred to erroneous reasonable person standard instruction].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: A finding of prejudice can also be supported by the fact that the prosecutor, during closing argument, took advantage of an erroneous failure to instruct. (See e.g., People v. Brady (CA 1987) 190 CA3d 124, 138 [235 CR 248]; Pool v. Oakland (CA 1986) 42 C3d 1051, 1007 [232 CR 528]; People v. Martinez (CA 1986) 188 CA3d 19, 22 [232 CR 736].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: When the court refuses to give correct instructions and defense counsel is forced to argue the case without the support of an instruction to which the defense is entitled, the force of its argument is seriously undermined. The presentation of an argument which is not supported by the instructions may also cause the jurors to suspect that defense counsel is trying to mislead them on the law, further weakening the credibility of the defense. "When the general charge on an issue appears to exclude the specific defense being argued by counsel, as it did here, that argument, unsupported by an instruction to which the defendant is entitled, may be more harmful than helpful." (U.S. v. Duncan (6th Cir. 1988) 850 F2d 1104, 1118; see also Wright v. U.S. (9th Cir. 1964) 339 F2d 578, 580; Goodwin v. Balkcom (11th Cir. 1982) 684 F2d 794, 801; People v. Rivera (CA 1984) 157 CA3d 736, 744 [203 CR 842]; Burr and Feffer, Preparation and Presentation of Case and Argument, Calif. Crim. Law (Cont. Ed. Bar 1986) [counsel should tie argument to key instructions].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: The likelihood of prejudice is increased when the erroneous or incomplete instructions are reread at the jury's request during deliberations. (See e.g., People v. Beeman (CA 1984) 35 C3d 547, 562-63 [199 CR 60]; see also People v. Thompkins (CA 1987) 195 CA3d 244, 250 [240 CR 516]; People v. Singleton (CA 1987) 196 CA3d 488, 493-94 [241 CR 842]; Cavelli v. Cohen (NY 1995) 618 NYS2d 339, 340 [error in giving instruction regarding unmarked crosswalk compounded by repeating instruction in response to jury inquiry].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: The delivery of correct instructions at the beginning of the trial does not cure errors in the instructions given to the jurors before they begin their deliberations. (See People v. Vann (CA 1974) 12 C3d 220, 226, fn 6 [115 CR 352]; see also People v. Elguera (CA 1992) 8 CA4th 1214, 1219 [10 CR2d 910] [failure to repeat burden of proof instruction given during voir dire was prejudicial]; People v. Valenzuela (CA 1977) 76 CA3d 218, 222 [142 CR 655]; see also Penry v. Johnson (2001) 532 US 782 [121 SCt 1910, 1923; 150 LEd2d 9] [instructions are inadequate if the jury "received mixed signals," considering the full context of voir dire, arguments and all the instructions].)

    See also NCJIC 297.2.12 [Prejudice On Appeal: Correct Supplemental Instruction Does Not Cure Error In Original Instructions].

    See also NCJIC 297.3.1 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].

    See also NCJIC 272.5.4 [Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument].

    See also NCJIC 297.2.25 [Prejudice On Appeal: Correct Definition Of Elements In Preamble Of Instruction Does Not Cure Error In Body Of The Instruction].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: It is not uncommon for the oral instructions to vary from the written instructions either due to misreading of the written instructions by the judge or due to the inadvertent omission of a written instruction from the packet of instructions sent into the juryroom. In such a case, the reviewing court must presume that the jury followed the written version. (People v. McLain (CA 1988) 46 C3d 97, 111, fn 2 [249 CR 630]; see also Helton v. Easter (AL 1962) 148 So2d 486, 489 [giving of erroneous written charges in action for injuries sustained in an automobile collision was prejudicial error even though correct oral charges were given]; People v. Garceau (CA 1993) 6 C4th 140, 189 [24 CR2d 664] [misreading of oral instruction held harmless because jury received correct version in its written form]; Penry v. Johnson (2001) 532 US 782 [121 SCt 1910, 1923; 150 LEd2d 9] [instructions are inadequate if the jury "received mixed signals," considering the full context of voir dire, arguments and all the instructions].)

    See also NCJIC 2.1 [Instruction Delivery: Written/Oral/Recorded].

    See also NCJIC 2.1.2 [Written Instructions In Lieu Of Oral Instructions As Reversible Error].

    See also NCJIC 2.1.5 [Impropriety Of Piecemeal Written Instructions].

    See also NCJIC 297.2.25 [Prejudice On Appeal: Correct Definition Of Elements In Preamble Of Instruction Does Not Cure Error In Body Of The Instruction].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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    297.2.12    Prejudice On Appeal: Correct Supplemental Instruction Does Not Cure Error In Original Instructions

PRACTICE NOTE: The delivery, during deliberations, of a correct definition or statement of law does not cure the error resulting from delivery of an incorrect definition or statement as part of the original charge. (People v. Marzett (CA 1985) 174 CA3d 610, 615-17 [220 CR 217]; In re Krall (CA 1984) 151 CA3d 792, 796 [199 CR 91]; see also People v. Hardnett UNPUBLISHED (A059605) [quoting R. Traynor, "The Riddle of Harmless Error" (1970, Ohio State University Press) in concluding that "a trial court can rarely cure an erroneous instruction simply by subsequent correct instruction that does not specifically displace the first"]; Penry v. Johnson (2001) 532 US 782 [121 SCt 1910, 1923; 150 LEd2d 9] [instructions are inadequate if the jury "received mixed signals," considering the full context of voir dire, arguments and all the instructions].)

    See NCJIC 297.2.10 [Prejudice On Appeal: Correct Preliminary Instruction Does Not Cure Error].

    See also NCJIC 297.2.25 [Prejudice On Appeal: Correct Definition Of Elements In Preamble Of Instruction Does Not Cure Error In Body Of The Instruction].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: It is widely recognized that an erroneous instruction cannot be cured by a subsequent correct one. (See e.g., Penry v. Johnson (2001) 532 US 782 [121 SCt 1910, 1923; 150 LEd2d 9] [instructions are inadequate if the jury "received mixed signals," considering the full context of voir dire, arguments and all the instructions]; State v. Parish (NM 1994) 878 P2d 988, 991; see also Libby v. Duval (1st Cir. 1994) 19 F3d 733, 737; U.S. v. Kenaan (1st Cir. 1987) 496 F2d 181, 182; Mays v. State (AR 1924) 259 SW 398, 400; State v. Villeza (HI 1991) 817 P2d 1054, 1059 ["A clearly prejudicial instruction... cannot be cured by other proper instructions which do not call attention to the error"]; State v. Estrada (HI 1987) 738 P2d 812, 825; State v. Prouty (IA 1974) 219 NW2d 675, 678; Carradus v. Lange (IA 1973) 203 NW2d 565, 570-571; State v. Robinson (SC 1991) 412 SE2d 411, 413; State v. Patrick (SC 1986) 345 SE2d 481, 485.)

    "Instructions as a whole must be consistent and harmonious, not conflicting and contradictory.... Where instructions given to the jury for their guidance present contradictory and conflicting rules which are unexplained, and where following one would or might lead to a different result than would obtain by following the other, the instructions are inherently defective. This is true although one of the instructions correctly states the law applicable to the facts of the case, since the correct instruction cannot cure the error in the contradictory erroneous instruction...." (State v. Stephenson (TN 1994) 878 SW2d 530, 555.) "[I]f the jury is given two contradictory instructions, each of which is complete and unambiguous, reversible error occurs because it is impossible to tell if the error is cured by the correct instruction." (State v. Parish (NM 1994) 878 P2d 988, 991; see also NCJIC 296.2.2.2 [Standard Of Prejudice On Appeal: When Instructions Include Legally Incorrect Theory].)

    Even if an element of an offense is correctly stated in the instruction preamble which describes the offense, if the element is not correctly enumerated in the body of the instruction, it will be assumed that the jury followed the incorrect stated elements rather than the correct preamble definition. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 741; cf. Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942, 949 [misleading and confusing instructions under state law may violate due process where they are "likely to cause an imprecise, arbitrary or insupportable finding of guilt"].).)

    See NCJIC 297.2.25 [Prejudice On Appeal: Correct Definition Of Elements In Preamble Of Instruction Does Not Cure Error In Body Of The Instruction].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: If the jury returns a verdict shortly after the delivery of an erroneous supplemental instruction, the instructional error was likely to have been prejudicial. (See Krische v. Smith (2nd Cir. 1981) 662 F2d 177, 179-80; U.S. v. Petersen (9th Cir. 1975) 513 F2d 1133-36 [quick return of verdict and fact that jury had twice previously declared itself to be deadlocked showed prejudice]; Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 158; People v. Markus (CA 1978) 82 CA3d 477, 482 [147 CR 151]; Driscoll v. Erreguible (NV 1971) 482 P2d 291, 294 [indicated jury's view as to comparative negligence].)

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: If the court erroneously omits an instruction which, if given, would probably have caused the jury to spend a considerable amount of time scrutinizing the evidence, the quick return of a verdict tends to show that the defendant did not receive the thorough consideration of the evidence to which he/she was entitled. (See People v. Ruiz (CA 1970) 11 CA3d 852, 864-65 [90 CR 110].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: If a jury, which has declared itself to be deadlocked, returns a verdict after hearing erroneous supplemental instructions, it is likely that the erroneous instructions were the factor which produced agreement. (See e.g. Krische v. Smith (2nd Cir. 1981) 662 F2d 177, 179-80; U.S. v. Petersen (9th Cir. 1975) 513 F2d 1133, 1136; People v. Thompkins (CA 1987) 195 CA3d 244, 251-52 [240 CR 516]; Driscoll v. Erreguible (NV 1971) 482 P2d 291, 294 [deadlocked deliberations together with rapid verdict after judge's erroneous response to inquiry demonstrated instruction was not harmless].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: Cross-examination by defense counsel is not necessarily an adequate substitute for correct instructions delivered by the court. (See People v. Wright (CA 1988) 45 C3d 1126, 1150, fn 22 [248 CR 600].)

    See NCJIC 297.2.25 [Prejudice On Appeal: Correct Definition Of Elements In Preamble Of Instruction Does Not Cure Error In Body Of The Instruction].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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    297.2.18    Prejudice On Appeal: Jury May Accept Some Portions Of A Witness' Testimony And Reject Other Portions

APPELLATE PRACTICE NOTE: In evaluating whether a factual issue or defense theory was presented at trial it may be useful to employ the rule that the jury may accept or reject all or any part of the testimony of a witness as they find it true or not.

    See NCJIC 27.1.2 [Credibility Of Witness: Jury May Believe A Portion Of Testimony].

    See NCJIC 29.2.8 [Expert Witness: Jury May Believe All, Part Or None Of The Expert Testimony].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: A conviction "under an erroneous instruction for a crime that was not proven by the testimony is conclusive that the giving of the instruction was prejudicial." (Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.63A [Prejudicial Instructions - In General] (Anderson, 4th ed. 1999); Commonwealth v. DeHaven (KY 1996) 929 SW2d 187, 188.)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: As to the actual harmless error analysis it should be kept in mind that to obtain a more favorable verdict it is only necessary for one juror to have voted differently. (See People v. Flood (CA 1998) 18 C4th 470, 491 [76 CR2d 180] [question is whether any "rational juror, properly instructed, could have found [in favor of the defendant as to the omitted element]"]; see also Duest v. Singletary (11th Cir. 1993) 997 F2d 1336, 1339, ["the essential question" under the Brecht [Brecht v. Abrahamson (1973) 507 US 619, 629 [113 SCt 1710; 123 LEd2d 353] standard is whether it was likely that "at least one juror" was influenced].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: Unwarranted, superfluous jury instructions may hamper defense strategy, distract the jury and diminish the impact of more critical instructions. (People v. Watts (CA 1976) 59 CA3d 80, 87 [130 CR 601].) However, such an instruction is generally held harmless unless it "creates a substantial risk of misleading the jury to the defendant's prejudice." [Citations and internal quote marks omitted.] (People v. Von Villas (CA 1992) 11 CA4th 175, 238 [15 CR2d 112].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: Instruction or reinstruction of the jury in the absence of defendant and his counsel violates the federal constitutional rights under the 6th and 14th Amendments to assistance of counsel and due process. (See People v. Hawthorne (CA 1992) 4 C4th 43, 67-71 [14 CR2d 133]; State v. Deluzio (NJ 1993) 643 A2d 609, 620; Sweet v. Camp (OH 1987) 526 NE2d 74, 78.)

    The error should be considered prejudicial if counsel could have taken some action on the defendant's behalf to amplify, clarify or modify the supplemental instruction. (See People v. Dagnino (CA 1978) 80 CA3d 981, 988 [146 CR 129]; see also Rice v. Wood (9th Cir. 1996) 77 F3d 1138, 1141 [presumption of prejudice must be rebutted]; Yarsunas v. Boros (PA 1966) 223 A2d 696, 697 [instruction in absence of defense counsel requires new trial "regardless of prejudice"].)

    See also NCJIC 285.1.5 [Supplemental Instructions: Presence Of Counsel And Defendant].

    See also NCJIC 284.1.5 [Readback: Should Be Conducted In Open Court And In The Presence Of Counsel And Defendant].

    See also NCJIC 25.4.12 [Presence Of Counsel At Jury View].

BRIEFING AVAILABLE: Click here. [Brief Bank # B-571].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: It is not unusual for an erroneous jury instruction on one criminal charge to have a prejudicial effect upon the jury's determination of a second criminal charge which is closely related. (See People v. Atchison (CA 1978) 22 C3d 181, 183 [148 CR 881]; People v. Bernhardt (CA 1963) 222 CA2d 567, 593-94 [35 CR 401]; People v. Smittcamp (CA 1945) 70 CA2d 741, 745-46 [161 P2d 983].) For example, in People v. Atchison (CA 1978) 22 C3d 181 [148 CR 881], the defendant was tried for both annoying or molesting a minor (California Penal Code § 647a) and contributing to the delinquency of a minor (California Penal Code § 272). The trial court instructed, as to the contributing-to-delinquency offense, if the victim was actually under 18 years of age, it did not matter if the defendant believed the victim was over 18. The court held the instruction was erroneous under People v. Hernandez (CA 1964) 61 C2d 529 [39 CR 361], and reversed both convictions, "since the jury may have been misled as to [the instruction's] application to both the Penal Code sections ...." (Atchison, 22 C3d at 183; see also People v. Cantrell (CA 1973) 8 C3d 672, 682 [105 CR 792] [jury instructions are to be considered as a whole and the court was not required to repeat the entire definition each time it referred to the required specific intent]; People v. Bernhardt (CA 1963) 222 CA2d 567, 593-94 [35 CR 401] [court found that an error in the trial court's instructions on the intent required for criminal conspiracy carried over into the instructions on the other charge, which was manslaughter]; People v. Smittcamp (CA 1945) 70 CA2d 741, 745-46 [161 P2d 983] [erroneous jury instruction allowing consideration of evidence of uncharged sex acts to show adulterous disposition on Count II (statutory rape) was held to be prejudicial on Counts I and II (lewd and lascivious acts)].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: In evaluating the prejudice from jury misconduct the instructions given to the jury should be considered. (See In re Carpenter (CA 1995) 9 C4th 634, 653-55 [38 CR2d 665] [prejudice stemming from jury misconduct must be considered in light of the instructions the jury was given] [citing Romano v. Oklahoma (1994) 512 US 1 [114 SCt 2004; 129 LEd2d 1].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

    297.2.25    Prejudice On Appeal: Correct Definition Of Elements In Preamble Of Instruction Does Not Cure Error In Body Of The Instruction

PRACTICE NOTE: Even if an element of an offense is correctly stated in the instruction preamble which describes the offense, if the element is not correctly enumerated in the body of the instruction, it will be assumed that the jury followed the incorrect stated elements rather than the correct preamble definition. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 741.)

    See also NCJIC 297.2.10 [Prejudice On Appeal: Correct Preliminary Instruction Does Not Cure Error].

    See also NCJIC 297.2.11 [Prejudice On Appeal: Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction].

    See also NCJIC 297.2.12 [Prejudice On Appeal: Correct Supplemental Instruction Does Not Cure Error In Original Instructions].

    See also NCJIC 297.2.13 [Prejudice On Appeal: Erroneous Instruction Cannot Be Cured By A Correct One].

    See also NCJIC 297.2.17 [Prejudice On Appeal: Cross-Examination Does Not Cure Instructional Error].

 VOLUME 14- CHAPTER 297    

    297.2.26    Jury Misconduct: Standard Of Prejudice

PRACTICE NOTE:  In some situations juror misconduct may be presumptively prejudicial.

    For example, in [NF] Caliendo v. Warden of Cal. Men's Colony (9th Cir. 2004) 353 F3d 1147, a detective who provided crucial prosecution testimony had a 20-minute conversation, unrelated to the trial, with three jurors in the hallway during a break in deliberations. When the trial court learned of the conversation, it held a hearing in which the jurors testified that the conversation was social in nature, that they had not discussed the case, and that it would not influence their judgment on the case. The trial court declined to declare a mistrial. The Ninth Circuit held that although the discussion between the jurors and the witness should be presumed prejudicial, the testimony at the hearing rebutted that presumption and showed that the improper contact was harmless.

    In Meyer v. State (NV 12003) 80 P3d 447 the court noted the split of authority on whether extraneous influences that are less egregious than jury tampering should be treated as raising a presumption of prejudice. (Compare United States v. Keating, 147 F3d 895 (9th Cir. 1998) [prejudice will be presumed in cases involving juror exposure to extrinsic evidence] with United States v. Lloyd, 269 F3d 228 (3rd Cir. 2001) [presumption of prejudice applies only when extraneous information is of a "considerable serious nature"].)