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297.4 Indicia of A Close Case: Specific Factors Which May Be Used To Demonstrate To The Appellate Court That The Case Was "Close"

    297.4.1 Doubt As To Prejudice Should Be Resolved In Favor Of Defendant
    297.4.2 Brevity Of Deliberations To Show Impact Of Error
    297.4.3 Length Of Deliberations To Indicia Close Case
    297.4.4 Request For Readback Or Reinstruction As Indicia Of Close Case
    297.4.5 Request For Explanation Of Instruction As Indicia Of Close Case
    297.4.6 Inquiry About The Meaning Of A Life Sentence In A Capital Prosecution As Indicia Of Close Case
    297.4.7 Prior Hung Jury As Indicial Of Close Case
    297.4.8 Juror Deadlock Before Reaching Verdict As Indicial Of Close Case
    297.4.9 Verdict Reflecting Jury's Selective Belief Of Defense Evidence and Refusal to Convict on All Counts As Indicial Of Close Case
    297.4.10 Credibility Contest Between Prosecution And Defense Witnesses As Close Case As Indicial Of Close Case
    297.4.11 Jury Request To View Exhibits As Indicia Of Close Case
    297.4.12 Indicia Of A Close Case: Death Penalty Trial

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PRACTICE NOTE: "'In a close case ... any error of a substantial nature may require a reversal and any doubt as to its prejudicial character should be resolved in favor of the appellant.' [Citation]." (People v. Von Villas (CA 1992) 11 CA4th 175, 249 [15 CR2d 112].) Hence, it is important to utilize "indicia of closeness" to demonstrate that the case was close.

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal].

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PRACTICE NOTE: When the jury deliberates for a very short time (e.g., 61 minutes) it is possible that the short deliberation may have been the product of the error and thus indicate the prejudicial effect of the error. (See e.g., People v. Barnes (CA 1997) 57 CA4th 552, 557 fn 3 [67 CR2d 162].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal]..

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PRACTICE NOTE: In California, deliberations for 6 hours or more in an ordinary case may demonstrate that the case was close. (See e.g., People v. Woodard (CA 1979) 23 C3d 329, 341 [152 CR 536] [6 hours]; see also People v. Cardenas (CA 1982) 31 C3d 897, 907 [184 CR 165] [12 hours]; People v. Rucker (CA 1980) 26 C3d 368, 391 [162 CR 13] [9 hours]; People v. Filson (CA 1994) 22 CA4th 1841, 1852 [28 CR2d 335]; but see People v. Taylor (CA 1991) 52 C3d 719, 732 [276 CR 391] [length of deliberations not "unduly significant" in special circumstance capital trial]; People v. Walker (CA 1995) 31 CA4th 432, 438-39 [37 CR2d 167] [6 ½ hours deliberation time does not indicate close case under circumstances].)

    In federal cases similar amounts of deliberation time have been held to indicate a close case. (See Gentry v. Roe (9th Cir. 2002) 300 F3d 1007 [close case where jury deliberated 6 hours]; see also Rhoden v. Rowland (9th Cir. 1999) 172 F3d 633 [jury deliberation for 9 hours over 3 days]; Osborne v. U.S. (8th Cir. 1965) 351 F2d 111, 118 [6 hours].)

    See FORECITE National™ 297.4.12 [Indicia Of A Close Case: Death Penalty Trial].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal].

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PRACTICE NOTE: A request for readback of testimony or reinstruction may indicate the case was close. (See e.g., Osborne v. U.S. (8th Cir. 1965) 351 F2d 111, 118; see also Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 973 [jury requests for review of exhibits, readback of testimony or clarification of instructions]; People v. Hernandez (CA 1988) 47 C3d 315, 352-53 [253 CR 199]; People v. Filson (CA 1994) 22 CA4th 1841, 1852 [28 CR2d 335]; People v. Markus (CA 1978) 82 CA3d 477, 480 [147 CR 151] [request for further instruction indicated jury was giving serious consideration to the defense].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal].

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  VOLUME 14 - CHAPTER 297

PRACTICE NOTE: When the jury asks the court to explain an instruction this may suggest that the case is close. (See e.g., People v. Mathews (CA 1994) 25 CA4th 89, 100 [30 CR2d 330]; see also Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 973 [jury requests for review of exhibits, readback of testimony or clarification of instructions]; People v. Filson (CA 1994) 22 CA4th 1841, 1852 [28 CR2d 335].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal].

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PRACTICE NOTE: See Castro v. Oklahoma (10th Cir. 1995) 71 F3d 1502, 1516.

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal].

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PRACTICE NOTE: See People v. Rivera (CA 1985) 41 C3d 388, 393 fn 3 [221 CR 562] (lead opinion) and 395 (Grodin, J. concurring); see also People v. Brooks (CA 1979) 88 CA3d 180, 188 [151 CR 606].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal].

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PRACTICE NOTE: See Romine v. Head (11th Cir. 2001) 253 F3d 1349, 1370 [juror deadlock and necessity of Allen charge suggested that prosecutorial misconduct may have been prejudicial]; see also People v. Gainer (CA 1977) 19 C3d 835, 854-56 [131 CR 861].

    See also FORECITE National™ 297.2.16 [Prejudice On Appeal: Return Of Verdict By Previously Deadlocked Jury].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal].

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    297.4.9    Verdict Reflecting Jury's Selective Belief Of Defense Evidence And Refusal To Convict On All Counts As Indicia Of Close Case

PRACTICE NOTE: See People v. Epps (CA 1981) 122 CA3d 691, 698 [176 CR 332].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal].

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PRACTICE NOTE: In a close case which turns on the credibility of witnesses, anything which tends to discredit the defense witnesses in the eyes of the jury or to bolster the story told by the prosecution witness, "requires close scrutiny when determining the prejudicial nature of any error." (People v. Briggs (CA 1962) 58 C2d 385, 404 [24 CR 417]; see also U.S. v. Carroll (6th Cir. 1994) 26 F3d 1380, 1384 [curative instruction not sufficient where conflicting testimony was virtually the only evidence]; U.S. v. Bess (6th Cir. 1979) 593 F2d 749, 753 [close case in which credibility was the key issue]; U.S. v. Simtob (9th Cir. 1990) 901 F2d 799, 806 [improper vouching for a key witness' credibility by the prosecutor in a close case]; Green v. U.S. (DC Cir. 1994) 651 A2d 817, 819 ["classic close case" where decision rested virtually exclusively on the jury's assessment of witness credibility]; People v. Taylor (CA 1986) 180 CA3d 622, 626 [225 CR 733] [error requires reversal in "close case where credibility was the key issue"]; Van Buren v. State (MN 1996) 556 NW2d 548, 551; Cohn v. Meyers (NY 1986) 509 NYS2d 603, 607 [125 AD2d 524].)

    See also FORECITE National™ 270.2.17 [Burden Of Proof Is Not Satisfied By Equally Conflicting Inferences That Are In A State Of Equipoise].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal].

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PRACTICE NOTE: See Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 973 [jury requests for review of exhibits, readback of testimony or clarification of instructions].

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PRACTICE NOTE:  See also Roche v. Davis (7th Cir. 2002) 291 F3d 473, 484 [fact that jury could not reach a recommendation as to sentence after eight hours of deliberation rendered penalty phase error prejudicial].