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general / Court Rules and Procedures

When a court learns of jury misconduct post-trial

Jury misconduct takes many forms, including concealment of information during voir dire, discussing the case with others, rushing to a verdict, jurors using their own expertise, and receiving outside information. When misconduct is discovered after trial is over, a court must take steps to assure that parties received a fair trial.

The object of this article and self-study test is to review the rules a judge must follow in addressing potential juror misconduct post-trial, and to discuss some of the more typical forms of misconduct that are encountered.

Procedural Steps

Attorneys sometimes find out about potential misconduct after speaking with jurors, and then request that the court disclose the identity and whereabouts of the jurors for further investigation. Code of Civil Procedure Section 206(g) provides that in a criminal case a "defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors' names, addresses, and telephone numbers."

Code of Civil Procedure Section 237 sets forth in detail the procedure for determining whether juror identifying information should be disclosed in criminal and civil cases. If a preliminary showing of good cause is made and a hearing is held, notice must be given to the jurors of the hearing and they must be given an opportunity to be heard. "'Discovery of juror names, addresses and telephone numbers is a sensitive issue which involves significant, competing public-policy interests.' [¶] Trial courts have broad discretion to manage these competing interests by allowing, limiting, or denying access to jurors' contact information." People v. Tuggles, 179 Cal. App. 4th 339 (2009) (citation omitted).

Once jurors are contacted, attorneys usually will include the jurors' affidavits as part of a motion for a new trial. A judge must determine whether the affidavit contains hearsay: whether the declarant is relating information regarding a statement being offered to prove the truth of the matter. Evid. Code Section 1200(a). The judge must also determine if the affidavit is admissible under Evidence Code Section 1150(a), which provides that proof of overt acts are admissible to impeach a jury verdict; however, proof of jurors' subjective reasoning or thought processes in reaching a verdict are not admissible to impeach a jury verdict.

If the affidavit is admissible, the court must determine whether the facts establish misconduct. See Krouse v. Graham, 19 Cal. 3d 59 (1977). The determination whether to conduct an evidentiary hearing, including considering witness testimony, is left to the judge's discretion. People v. Carter, 30 Cal. 4th 1166 (2003). For example, in People v. Dykes, 46 Cal. 4th 731 (2009), the court's refusal to hold a hearing was upheld on appeal where only unsworn juror statements were submitted through a defense investigator's statements to counsel, and the statements mostly referred to inadmissible thought processes of the jurors. "[A]n evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing." People v. Hedgecock, 51 Cal. 3d 395 (1990). Under Hedgecock, if a hearing is conducted, jurors may be subpoenaed and compelled to testify, and the judge "may decide to conduct most or all of the questioning of jurors itself, as is frequently done when allegations of misconduct arise in the course of trial."

Assuming the judge finds misconduct, the judge must then determine whether the misconduct was prejudicial. See People v. Bryant, 191 Cal. App. 4th 1457 (2011). In a criminal case, jury misconduct "raises a presumption of prejudice [which] the prosecution must rebut ... by demonstrating there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment." In re Boyette, 56 Cal. 4th 866 (2013) (italics and quotation marks omitted); accord People v. Weatherton, 59 Cal. 4th 589 (2014). In a civil case, there is no such presumption, and the court must determine if actual prejudice resulted from the misconduct. See Krouse v. Graham.

Types of Misconduct

Misconduct may occur before jurors are empanelled, during trial, and while deliberating. The most common types are discussed below.

Concealment of information during voir dire

In a criminal case, "'juror misconduct involving the concealment of material information on voir dire raises the presumption of prejudice,' and . . . '[t]his presumption of prejudice may be rebutted by an affirmative evidentiary showing that prejudice does not exist.'" People v. Carter, 36 Cal. 4th 1114 (2005) (citations omitted). In a civil case, "to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984).

It should further be kept in mind that "[n]ot every failure to disclose background information in response to voir dire questioning constitutes misconduct by jurors. 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal, mere inadvertent or unintentional failures to disclose are not accorded the same effect. [T]he proper test to be applied to unintentional "concealment" is whether the juror is sufficiently biased to constitute good cause for the court to find ... that he is unable to perform his duty.'" People v. Wilson, 44 Cal. 4th 758, 823 (2008) (citations omitted); accord City of Pleasant Hill v. First Baptist Church, 1 Cal. App. 3d 384 (1969).

Discussing the case with others and rushing to a verdict

"It is misconduct for a juror during the course of trial to discuss the case with a nonjuror." People v. Danks, 32 Cal. 4th 269 (2004) (misconduct for juror to discuss case with her husband); accord People v. Ault, 33 Cal. 4th 1250 (2004) (juror discussed the case with her manicurist); People v. Pierce, 24 Cal. 3d 199 (1979) (misconduct for juror to discuss case with police officer friend). A verdict may be set aside based on forbidden communication "if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways.... First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror.... [¶] Second, even if the extraneous information was not so prejudicial, in and of itself, as to cause 'inherent' bias under the first test, the nature of the misconduct and the 'totality of the circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose.'" In re Carpenter, 9 Cal. 4th 634 (1995); see also People v. Hensley (substantial likelihood of actual bias found when juror in penalty phase of a capital trial solicited his pastor for advice about appropriate penalty while still wrestling with his decision).

Just as a judge may commit misconduct by rushing a jury into a verdict, the jury too could commit misconduct if they rush a verdict. "'While the verdict should be the result of sound judgment, dispassionate consideration, and conscientious reflection, and the jury should, if necessary, deliberate patiently and long on the issues which have been submitted to them, yet, where the law does not positively prescribe the length of time a jury shall consider their verdict, they may render a valid verdict without retiring, or on very brief deliberation after retiring, although the trial court may, in its discretion, cause the jury to reconsider the case if their decision is so hasty as to indicate a flippant disregard of their duties.'" Vomaska v. City of San Diego, 55 Cal. App. 4th 905 (1997) (citation omitted).

Jurors using their own expertise

Below are appellate opinions wherein this type of juror misconduct was discussed. Each case is unique, but all share the same legal principles.

In In re Lucas, 33 Cal. 4th 682 (2004), one juror shared his personal experience with drugs with the other jurors in a death penalty case in which the defendant had claimed he committed the murder because of drugs. The Supreme Court upheld the trial court finding of no misconduct because the juror was not sharing highly technical information based on education or occupation, but merely sharing his life experiences, some which were matters of common knowledge.

People v. Steele, 27 Cal. 4th 1230 (2002), was a case where several jurors made statements about their military experiences and medical backgrounds in analyzing the evidence. The trial court's determination there was no misconduct was upheld: "A fine line exists between using one's background in analyzing evidence, which is appropriate, even inevitable, and injecting 'an opinion explicitly based on specialized information from outside sources,' which we have described as misconduct."

In contrast, People v. Malone, 12 Cal. 4th 935 (1996), held that it was misconduct for a juror to share her expertise in polygraphs with other jurors. Nonetheless, the misconduct was found not to be prejudicial.

Jurors receiving outside information

Jurors' receipt of information about a party or the case which was not admitted into evidence is misconduct, and in moving for a new trial, "[t]o succeed, [the party] must show misconduct on the part of a juror; if he does, prejudice is presumed; the [opposing party] must then rebut the presumption or lose the verdict." People v. Marshall, 50 Cal. 3d 907 (1990). Prejudice is shown only when there is a substantial likelihood of jury bias as a result of the misconduct. In re Carpenter, 9 Cal. 4th 634 (1995).

In People v. Davis, 46 Cal. 4th 539 (2009), the foreperson read a note from a friend to the jury during deliberations. This was misconduct, but no prejudice was found because the note just thanked the jury for their service regardless of the outcome.

People v. Brasure, 42 Cal. 4th 1037 (2007), dealt with a situation where a juror looked up the words "aggravate" and "mitigate" in the dictionary just before penalty phase deliberations. This was held to be misconduct, but not prejudicial.

In People v. Nesler, 16 Cal. 4th 561 (1997), both misconduct and prejudice were found. A juror overheard negative information about the defendant during the trial and communicated it to the other jurors. The Supreme Court found that it was substantially likely that the juror that overhead the information was actually influenced by the extrajudicial information and, therefore, was actually biased.

#196

Ben Armistead


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