People v. Engelman

¶1I concur in the judgment affirming the Court of Appeal. Like the majority, I agree that, jurors are obligated to follow the court’s instructions and that they should be instructed, in particular, to “avoid misconduct.” (Maj. opn., ante, at p. 448.) I also agree that CALJIC No. 17.41.1, which provides a means of enforcing that duty, does not violate defendant’s state constitutional right to a unanimous jury (maj. opn., ante, at p. 444) or impair defendant’s right to have the jury conduct its deliberations in secret. (Id. at p. 443.) Unlike the majority, however, I would respect the state’s “legitimate and significant interest in avoiding juror misconduct” (id. at p. 448) and allow trial courts discretion within constitutional bounds to manage the risk of misconduct. In particular, I would permit the use of CALJIC No. 17.41.1, an instruction that the majority concedes suffers from no constitutional infirmity but that is barred merely because of the hypothesized risk that the instruction could be misunderstood or misused.

¶2I dissent generally from the invocation of our seldom used supervisory power to remedy de minimis concerns. I dissent specifically from the invocation of our supervisory power to condemn a useful and constitutionally permissible instruction merely because of a remote and shadowy risk of harm. And I dissent with regret that our supervisory power has been invoked when the court is so divided over the propriety of its use.

¶3What Happens When Jurors Are Uninformed of Their Duty to Report Misconduct?

¶4The majority’s disapproval of CALJIC No. 17.41.1 rests on a single unexamined and unsupported assumption: “Nothing in our experience suggests that these [other pattern] instructions have proved inadequate over the years to discourage juror misconduct during deliberations.” (Maj. opn., ante, at p. 449.) Our “experience,” in my view, proves just the opposite.

¶5Jury misconduct is a problem that has vexed courts from the inception of the jury system and offered one of the earliest recognized justifications for a new trial at common law. (See Thayer, A Preliminary Treatise on Evidence at the Common Law (1898) 169.) In modem times, “[mjisconduct affecting the jury is frequently put forward as a reason why a new trial should be granted.” (3 Wright, Federal Practice & Procedure: Criminal (2d ed. 1982) § 554, p. 248.) Indeed, “[p]ost-trial hearings on alleged juror misconduct or other matters affecting the rationality of the verdict are an increasingly common phenomenon.” (Stith-Cabranes, Faults, Fallacies, and the Future of Our Criminal Justice System: The Criminal Jury in Our Time (1995) 3 Va. J. Soc. Pol’y & L. 133, 144, fn. 59.)

¶6*451A survey of state and federal trial judges in 1995 revealed that state trial judges were more likely to have witnessed jury misconduct than were federal judges, that several forms of misconduct were more common in criminal cases than in civil cases, and that California judges reported misconduct more often than judges in other states. (King, Juror Delinquency in Criminal Trials in America, 1796-1996 (1996) 94 Mich. L.Rev. 2673, 2737, 2739 (hereafter King).) It therefore should not be surprising that those who are concerned with the administration of justice might develop an instruction for state criminal trials in California. The instruction was not a solution in search of a problem.

¶7Our own experience confirms the available data. Time after time, this court, the Courts of Appeal, and trial courts have been compelled to order new trials because of the postverdict discovery of juror misconduct. (E.g., People v. Nesler (1997) 16 Cal.4th 561, 579-584 [66 Cal.Rptr.2d 454, 941 P.2d 87] [remanding for new sanity trial because of postverdict discovery that juror had received extraneous information and had shared it with fellow jurors]; Province v. Center for Women’s Health &; Family Birth (1993) 20 Cal.App.4th 1673, 1678-1680 [25 Cal.Rptr.2d 667]; Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 681 [18 Cal.Rptr.2d 923]; People v. Castro (1986) 184 Cal.App.3d 849, 851 [229 Cal.Rptr. 280]; People v. Brown (1976) 61 Cal.App.3d 476, 478-479 [132 Cal.Rptr. 217]; People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal.App.2d 378, 388-390 [63 Cal.Rptr. 138].)

¶8Our “experience” should also include the numerous occasions in which the federal courts have upset California criminal judgments because of the belated discovery of juror misconduct. (E.g., Sassounian v. Roe (9th Cir. 2000) 230 F.3d 1097, 1111 [overturning special circumstance finding where “the judge never had an opportunity to dimmish the prejudicial effect of the extraneous information. Because he did not know that the jury found out about the phone call until after the verdict, the jury was never told not to consider it”]; Lawson v. Borg (9th Cir. 1995) 60 F.3d 608, 610 [overturning first degree murder conviction where juror’s statements during deliberations as to defendant’s violent reputation came to light only in motion for new trial]; Marino v. Vasquez (9th Cir. 1987) 812 F.2d 499, 503 [overturning murder and attempted murder convictions where information presented in motion for new trial revealed that a juror performed an unauthorized experiment and presented results to the other jurors as part of deliberations]; Keenan v. Woodford (N.D.Cal., Jan. 10, 2001, No. 89-CV-2167 DLJ) 2001 WL 835856, *1, fn. 1 [overturning judgment of death where juror’s threat to kill dissenting juror during deliberations came to light only in motion for new trial].)

¶9The majority acknowledges, as it must, that jurors “have no right to refuse to deliberate or to disregard the law in reaching their decision.” (Maj. opn., *452ante, at p. 440.) The majority also does not dispute that jurors have a duty to report such misconduct to the court. (See People v. Williams (2001) 25 Cal.4th 441, 451 [106 Cal.Rptr.2d 295, 21 P.3d 1209] [“jurors are required to follow the trial court’s instructions”]; id. at p. 452 [“ ‘the judge must be permitted to instruct the jury on the law and to insist that the jury follow his instructions’ ”].) The problem is that the majority, other than disapproving this instruction, fails to articulate how trial courts may properly inform jurors of that duty, apparently assuming instead that jurors will discover this duty on their own.1

¶10The foregoing cases demonstrate the error of the majority’s approach. The fact common to all of those cases is that the misconduct justifying the new trials was not discovered until after the verdict had been rendered—even though the underlying facts were known to jurors before the verdict. (In re Stankewitz (1985) 40 Cal.3d 391, 397 [220 Cal.Rptr. 382, 708 P.2d 1260] [“jury misconduct during deliberations is most often raised by motion for new trial and appeal”].) “Experience” thus confirms the obvious: some jurors are unaware of their ability or duty to report misconduct to the judge. “If the jurors remain silent, most instances of jury misconduct will go undetected.” (Edwards, A Judge’s Review of Juror Misconduct (1984) 27 How. L.J. 1519, 1520.) Unless we are willing to gamble that each jury will stumble onto the correct path, it is appropriate that jurors be informed of their duty to report misconduct. (King, supra, 94 Mich. L.Rev. at p. 2748 [“remedies for misconduct that operate before a verdict is reached have significant advantages over postverdict remedies”].)

¶11The So-called Problems with CALJIC No. 17.41.1

¶12As demonstrated in the preceding part, the majority’s fundamental mistake is a failure to accord any significance to our experience with jury misconduct. By incorrectly assuming that no problem existed, even a remote, hypothesized risk was apparently sufficient to tip the scales against the instruction. I will now demonstrate that the majority opinion’s balancing is defective for the additional reason that it has overstated the instruction’s risks.

¶13The majority worries first that jurors may misuse the instruction to browbeat a dissenting or holdout juror. Yet, despite the fact that the instruction has been given in hundreds of cases, the majority offers no evidence of *453such misuse. Moreover, reading the instructions as whole, as the jurors are instructed to do (see CALJIC No. 1.01) and as appellate courts must (People v. Mayfield (1997) 14 Cal.4th 668, 111 [60 Cal.Rptr.2d 1, 928 P.2d 485]), no one would reasonably understand CALJIC No. 17.41.1 to stifle deliberations or dissent. After all, the jurors are instructed that “[t]he People and the defendant are entitled to the individual opinion of each juror,” that “[e]ach of you must decide the case for yourself,” and that no one should decide any question in a particular way merely “because a majority of the jurors, or any of them, favor that decision.” (CALJIC No. 17.40, italics added; cf. maj. opn., ante, at p. 444.) Indeed, based on the available evidence, my concerns are just the opposite of the majority’s—i.e., that in the absence of the instruction, jurors may be reluctant to report instances of intimidation. (See, e.g., People v. Keenan (1988) 46 Cal.3d 478, 540 [250 Cal.Rptr. 550, 758 P.2d 1081] [elderly dissenting juror cried, shook, and vomited but failed to report the shouting and threats during deliberations that caused her distress].)

¶14The majority’s analysis suffers from the additional flaw of focusing exclusively on the instruction’s possible effect on overly sensitive jurors. I agree instead with Justice Cardozo who, in speaking for a unanimous United States Supreme Court, said: “The chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice. It must yield to the overmastering need, so vital in our polity, of preserving trial by jury . . . against the inroads of corruption.” (Clark v. United States (1933) 289 U.S. 1, 16 [53 S.Ct. 465, 470, 77 L.Ed. 993]; see also United States v. Nixon (1984) 418 U.S. 683, 712, fn. 20 [94 S.Ct. 3090, 3109-3110, 41 L.Ed.2d 1039].) Accordingly, I disagree with the majority’s unsupported assertion that one juror could place “undue pressure on another juror by threatening to accuse that juror in open court of reasoning improperly or of not following the court’s instructions in his or her decisionmaking process.” (Maj. opn., ante, at p. 446.) Where the juror is innocent of wrongdoing, the risk that a timid juror will abruptly capitulate is too remote and shadowy to justify a prophylactic rule. On the other hand, where the juror has committed misconduct, the juror “will not expect to be shielded against the disclosure of his conduct . . . .” (Clark v. United States, supra, 289 U.S. at p. 16 [53 S.Ct. at p. 470].)

¶15The majority’s other stated concern is the risk that the instruction might “draw the court unnecessarily into delicate and potentially coercive exploration of the subject matter of deliberations.” (Maj. opn., ante, at p. 447.) But the risk that a juror might misunderstand the instruction is of no importance, inasmuch as a court’s intervention is permitted “ ‘only where the court possesses information which, if proven to be true, would constitute “good *454cause” to doubt a juror’s ability to perform his duties and would justify his removal from the case.’” (People v. Cleveland (2001) 25 Cal.4th 466, 478 [106 Cal.Rptr.2d 313, 21 P.3d 1225], italics added.) Even when presented with such information, the trial court’s inquiry “should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations.” (Id. at p. 485.) A trial court could thus be drawn unnecessarily into the subject matter of deliberations only by misapplying the standard set forth in Cleveland. (Cf. U.S. v. Thomas (2d Cir. 1997) 116 F.3d 606, 622 [the standard governing dismissal of a juror “also serves to protect against overly intrusive judicial inquiries into the substance of the jury’s deliberations”].) The permissibility of a jury instruction should not be judged against the possibility that trial courts will misconstrue our precedents.

¶16Finally, I cannot agree there is anything problematic in directing jurors to police each other’s conduct. Jurors are already directed to perform that monitoring function and to report misconduct in CALJIC No. 0.50, which tells them to “promptly report to the Court any incident within your knowledge involving an attempt by any person to improperly influence any member of this jury.”2 I can divine no reason to instruct jurors to report one type of misconduct—i.e., jury tampering—and not others.

¶17What Instruction Would the Majority Permit?

¶18After balancing the relative risks and benefits of the instruction, I would not disapprove CALJIC No. 17.41.1. Its first sentence advises jurors, in terms that cannot be disputed, that the integrity of the trial depends on compliance with the court’s instructions during deliberations. The second sentence directs jurors to inform the court if any juror “refuses to deliberate or expresses an intention to disregard the law or to decide the case based on [penalty or punishment, or] any [other] improper basis.” (CALJIC No. 17.41.1.) The instruction’s focus on deliberations is sensible, inasmuch *455as existing pattern instructions warn the jurors not to converse among themselves on any subject connected with the trial prior to deliberations. (CALJIC No. 0.50.) Consequently, the first opportunity for a juror to discover most kinds of misconduct by another juror is during deliberations. A refusal to apply the law, a refusal to deliberate, and a willingness to consider punishment in a noncapital case—all of which are conceded to be misconduct by the majority (maj. opn., ante, at p. 442)—would be manifested only during deliberations. Other “improper” bases for decision—such as deciding the case by a roll of the dice, by threats or bribes, or by resort to extrajudicial materials—also occur in the jury room during deliberations. I do not believe we can be successful in reducing prejudicial jury misconduct without recognizing, as this instruction does, the critical role of deliberations.

¶19Fortunately, I do not understand the majority to have foreclosed trial courts completely from informing jurors of their duty to report misconduct. The majority does not deny that “[t]he integrity of a trial requires that all jurors, at all times during their deliberations, conduct themselves as required by these instructions.” (CALJIC No. 17.41.1.) Nor does it cast doubt on the practice of prosecutors and defense attorneys alike of informing jurors, during argument, of their duty or opportunity to report misconduct to the court. One can easily imagine a defense attorney whose client is accused of a notorious or heinous crime or who is a member of an impopular group wanting to enlist the aid of the jury to ensure that the verdict is not the product of bigotry, conversations with victims and their friends, an unauthorized experiment, or consideration of the relative severity of punishment for certain of the charged crimes. (See People v. Williams, supra, 25 Cal.4th at p. 462 [“Jurors who do not feel bound to follow the law can act capriciously, to the detriment of the accused.”].)3 Alternatively, one can imagine a prosecutor who is saddled with advocating on behalf of an unappealing victim or with enforcing an unpopular law likewise urging the jury to report attempts at nullification among its ranks. I do not understand the majority to bar attorneys from taking these steps to safeguard the rule of law. Since it would be unprecedented to permit counsel—but not the trial court—to inform the jury of its rights and responsibilities, it follows that trial courts must have retained some meaningful ability to instruct jurors as to their obligations in those circumstances.

¶20One clue as to the type of instruction the majority would permit comes from the opinion’s repeated emphasis that CALJIC No. 17.41.1 is part of the *456“concluding instructions” (maj. opn., ante, at p. 441) and is given “immediately” before deliberations begin (id. at pp. 440, 445). This suggests that the majority’s objection, at least in part, is simply a matter of timing.

¶21Furthermore, to the extent the majority criticizes the instruction as vague (see maj. opn., ante, at p. 447), it is possible to redraft the instruction to eliminate the ambiguity. In lieu of listing only a few possible violations of a juror’s obligations focused exclusively on deliberations, a redrafted instruction might instead direct the jury to report to the court when a member violates any of the court’s instructions.

¶22Thus, one possible instruction would expand the pretrial admonition set forth in CALJIC No. 0.50 to alert jurors that the integrity of a trial requires they at all times conduct themselves as required by the instructions given by the court and that they have an obligation to immediately advise the court if any juror has violated or has refused to comply with those instructions. The instruction should also explain the procedure by which the juror can make a report of misconduct to the court.

¶23I hope that trial courts will not misinterpret the majority and overreact by abstaining from reasonable efforts to prevent and remedy misconduct in a timely manner. Unless jurors are informed of their solemn responsibility to report misconduct, I predict that many judgments will be reversed simply because the trial judge never had the opportunity to cure the problem. Those interested in the administration of justice should therefore be mindful of the narrowness of the majority’s holding and continue permissible efforts to inform jurors of their frill responsibilities as a critical component of our legal system.

¶24Because the majority has unjustifiably restricted trial courts from selecting among constitutionally permissible methods to prevent or cure jury misconduct, however, I respectfully dissent.

¶25Chin, J., and Brown, J., concurred.