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VOLUME 18 - CHAPTER 309
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Macro 309.7      Juror Duties And Conduct

    Macro 7.1    Right To Jury Consideration Of The Evidence
    Macro 7.2    Jury's Duty To Full And Fairly Apply The Law
    Macro 7.3    Consideration Of Matters Not Admitted Into Evidence Add from 16.5.1
    Macro 7.4    Juror Consideration Of Evidence For An Improper Purpose
    Macro 7.5    Fair And Unbiased Jury
    Macro 7.6    Premature Deliberations Or Formulation Of Opinion
    Macro 7.7    Ex Parte Juror Contact
    Macro 7.8    Right To Individual Juror Determination
    Macro 7.9    Fair, Unfettered Jury
    Macro 7.10  Jury Must Follow And Be Guided By The Instructions Given By The Court
    Macro 7.11  Physical And Mental Ability To Fulfill Duty As Juror
    Macro 7.12  Right To Individual Jury Determination
    Macro 7.13  Duty To Deliberate (Fully And Fairly)
    Macro 7.14  Nullification

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VOLUME 18 - CHAPTER 309

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which require the jury to consider exculpatory evidence upon which the defendant relies to raise a reasonable doubt as to any element of the charge. (See e.g., Martin v. Ohio (1987) 480 US 228, 234 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]]; Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Chambers v. Mississippi (1973) 410 US 284 [93 SCt 1038; 35 LEd2d 297]; People v. Bobo (1990) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state].)

    These rights are implicated by any procedures and/or instructions which permit and/or encourage the jurors to convict the defendant without having considered all of the evidence. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-42 [the right to present evidence is meaningless if the jury is not required to consider it]; see People v. Cox (CA 1991) 53 C3d 618, 695-96 [280 CR 692] ["defendant as well as the prosecution have a right to the reasoned, dispassionate and considered judgment of the jury"].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.7.2    Jury's Duty To Full And Fairly Apply The Law

    This instruction protects the defendant's federal constitutional rights to due process and fair trial by jury (5th, 6th and 14th Amendments) which require that the jury fully understand the law stated in the jury instructions and that the jury fairly and accurately apply that law. (See Estelle v. McGuire (1991) 502 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood instructions]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444] [it is "the jury’s constitutional responsibility...not merely to determine the facts, but to apply the law to those facts..."].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.7.3    Consideration Of Matters Not Admitted Into Evidence

    This instruction is required by the Due Process Clause of the federal constitution (5th and 14th Amendments) which requires a jury capable of and willing to decide the case solely on the evidence before it. (Smith v. Phillips (1982) 455 US 209, 217 [102 SCt 940; 71 LEd2d 78]; Sheppard v. Maxwell (1966) 384 US 333, 363 [86 SCt 1507; 16 LEd2d 600] ["reasonable likelihood" of jury bias, because of televised confession and other media exposure, warranted trial court inquiry]; Remmer v. U.S. (1954) 347 US 227 [74 SCt 450; 98 LEd 654]; Ohio Bell Tel. Co. v. Public Utilities Comm. of Ohio (1937) 301 US 292, 300-03 [57 SCt 724; 81 LEd2d 1093]; Mattox v. U.S. (1892) 146 US 140, 149 [13 SCt 50; 36 LEd 917]; U.S. v. Dutkel (9th Cir. 1999) 192 F3d 893, 894-95 [jury tampering by codefendant raised presumption of prejudice].)

    The federal constitutional rights to a fair trial by jury, confrontation, due process and the right to counsel (5th, 6th and 14th Amendments) require that the jury only consider evidence which has been duly admitted at trial after affording the defendant an opportunity to cross-examine and confront the witness who offers the testimony. (See Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; see also Lilly v. Virginia (1999) 527 US 116, 139 [119 SCt 1887; 144 LEd2d 177]; Idaho v. Wright (1990) 497 US 805, 816-17 [110 SCt 3139; 111 LEd2d 638]; U.S. v. Davis (DC Cir. 1997) 127 F3d 68, 70; In re Hitchings (CA 1993) 6 C4th 97 [24 CR2d 74].)

    These rights are implicated by procedures, jury instructions and/or the absence of jury instructions which permit and/or encourage the jury to rely on evidence which was not admitted into evidence at trial.

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

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    This instruction is required by the federal constitutional rights to a fair trial by jury, confrontation, due process and the right to counsel (5th, 6th and 14th Amendments) which require that the jury only consider evidence that has been duly admitted at trial after affording the defendant an opportunity to cross-examine and confront the witness who offers the testimony. (See Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; see also Lilly v. Virginia (1999) 527 US 116, 139 [119 SCt 1887; 144 LEd2d 1177]; Idaho v. Wright (1990) 497 US 805, 816-17 [110 SCt 3139; 111 LEd2d 638]; U.S. v. Davis (DC Cir. 1997) 127 F3d 68, 70; In re Hitchings (CA 1993) 6 C4th 97 [24 CR2d 74].)

    These rights are implicated by procedures, instructions and/or the absence of instructions which permit or encourage the jury to consider evidence for purposes for which it was not admitted. This is so because the defendant has defended against the charges in reliance upon the assumption that the jury would consider the evidence for its limited purpose. If the jury considers the evidence for the improper purpose the defendant’s federal constitutional rights to confrontation, representation of counsel, due process, and fair trial by jury will be abridged. (See generally NCJIC Constitutional Macro 6.1 [Due Process And Notice -- Generally].)

    Additionally, where the improper purpose of the evidence is inherently prejudicial and inflammatory, jury consideration of the evidence for this improper purpose violates the defendant’s federal constitutional right to a fair and unbiased jury. (See NCJIC Constitutional Macro 5.1 [Highly Prejudicial Or Inflammatory Evidence].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which require that the jury be fair and unbiased. (See e.g., J.E.B. v. Alabama (1994) 511 US 127, 131 [114 SCt 1419; 128 LEd2d 89]; Powers v. Ohio (1991) 499 US 400, 404 [111 SCt 1364; 113 LEd2d 411] and Batson v. Kentucky (1986) 476 US 79, 84-86 [106 SCt 1712; 90 LEd2d 69]; McDonough Power Equipment, Inc. v. Greenwood (1984) 464 US 548, 554 [104 SCt 845; 78 LEd2d 663]; In re Hitchings (CA 1993) 6 C4th 97 [24 CR2d 74]; U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 259; Gray v. Mississippi (1987) 481 US 648, 668 [107 SCt 2045; 95 LEd2d 622].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which require that the prosecution bear the burden of proving the defendant guilty beyond a reasonable doubt. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)

    These rights are implicated by a juror's premature discussion, deliberation and/or formation of opinions about the case before the jury has heard all of the evidence, arguments of counsel and jury instructions. (See In re Hitchings (CA 1993) 6 C4th 97, 118, fn 6 [24 CR2d 74].) A juror’s premature formulation of an opinion skews the burden of proof in violation of the defendant’s federal constitutional rights to trial by jury and due process. (U.S. Const. 6th and 14th Amendments; see also Patton v. Yount (1984) 467 US 1025, 1031-35 [104 SCt 2885; 81 LEd2d 847] ["fixed opinion" prior to trial renders juror disqualified]; McDonough Power Equipment, Inc. v. Greenwood (1984) 464 US 548, 554 [104 SCt 845; 78 LEd2d 663]; Winebrenner v. U.S. (8th Cir. 1945) 147 F2d 322, 328.)

    The constitutional deprivation is especially acute when the juror expresses his or her opinion. (See Delaney v. U.S. (1st Cir. 1952) 199 F2d 107, 112-13; People v. Purvis (CA 1963) 60 C2d 323, 340 fn 14 [33 CR 104] ["The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man...."]; People v. Brown (CA 1976) 61 CA3d 476 [132 CR 217] [expression of an opinion as to the guilt of the defendant before hearing all the evidence was prejudicial misconduct].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.7.7    Ex Parte Juror Contact

    This instruction is required by the defendant’s federal constitutional rights to a fair trial by jury, due process, representation of counsel, confrontation and public trial (5th, 6th, 14th Amendments) require that defense counsel and the defendant be present whenever the court communicates with the jury. (See NCJIC 300.15 [Presence Of Defendant At Trial].)

    These rights are implicated by any procedures, instructions and/or absence of instructions which permit or encourage communication between the court and jury without the presence and/or participation of defense counsel and the defendant.  (United States v. Gypsum Co. (1978) 438 US 422, 459-62 [98 SCt 2864; 57 LE2d 854].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.7.8    Right To Individual Juror Determination

    This instruction is required by the federal constitutional rights to due process and fair trial by jury. (5th, 6th and 14th Amendments.) "Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation.]" (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.) This means that each individual juror must fully and fairly deliberate and follow their conscientiously held beliefs in voting on a verdict during deliberations. (Allen v. U.S. (1896) 164 US 492 [17 SCt 154; 41 LEd 528]; People v. Gainer (CA 1977) 19 C3d 835, 842-47 [139 CR 861] [judge must not admonish minority jurors to reconsider their position in light of the majority]; Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 750-51 [judge reminded jurors not to surrender their sincerely held beliefs under pressure from the majority]; see also Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 981; In re Hitchings (CA 1993) 6 C4th 97 [24 CR2d 74] [bias of even a single juror requires reversal].)

    These rights are implicated by any procedures, instructions and/or absence of instructions which permit or encourage the jurors to vote for a verdict which is contrary to their conscientiously held beliefs. (See Smalls v. Batista (2nd Cir. 1999) 191 F3d 272, 279 ["lack of any cautionary language which would discourage jurors from surrendering their own conscientiously held beliefs was a 'fatal flaw'"]; U.S. v. Mason (9th Cir. 1981) 658 F2d 1263, 1267-68; U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337; Allen v. U.S. (1896) 164 US 492, 501 [17 SCt 154; 41 LEdd 528].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.7.9    Fair, Unfettered Jury

    See NCJIC Constitutional Macro 7.8 [Consideration Of Matters Not Admitted Into Evidence].

    309.7.10    Jury Must Follow And Be Guided By The Instructions Given By The Court

    See NCJIC Constitutional Macro 7.2 [Jury's Duty To Full And Fairly Apply The Law].

    309.7.11    Physical And Mental Ability To Fulfill Duty As Juror

    See NCJIC 44.5 [Liability Based On Omission: Requirement That Duty Be Physically Capable Of Performance].

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VOLUME 18 - CHAPTER 309

    309.7.12    Right To Individual Jury Determination

See NCJIC Constitutional Macro 7.8 [Right To Individual Juror Determination].

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    309.7.13    Duty To Deliberate (Fully And Fairly)

    See NCJIC 278.1 [Duty Of Jurors To Deliberate Before Returning Verdict].

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    309.7.14    Nullification

    See NCJIC Chapter 280 [Jury Nullification].