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The California Supreme Court on Thursday told trial judges to stop telling jurors to snitch on fellow jurors they suspect of misconduct during deliberations. In a 4-3 decision, the majority held that a jury instruction directing jurors to speak out about each other disrupts court proceedings. “We believe the instruction has the potential to intrude unnecessarily on the deliberative process and affect it adversely — both with respect to the freedom of jurors to express their differing views during deliberations and the proper receptivity they should accord the views of their fellow jurors,” Chief Justice Ronald George wrote for the majority. Justice Marvin Baxter dissented, arguing the instruction passed constitutional muster and the risk of it being misunderstood by jurors was minimal. Baxter criticized the majority for erasing the instruction without writing a new one. “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,” Baxter wrote. He was joined by Justices Ming Chin and Janice Rogers Brown. San Francisco Superior Court Judge James Warren said he doubts the ruling will have much impact. “As a practical matter, I don’t know how this is different from the beginning of a trial, when you tell the jurors you have to follow the law as I state it,” Warren said. “I just won’t give [the disapproved instruction].” Professor Evan Lee of University of California’s Hastings College of the Law agreed with Warren that the high court’s ruling won’t change much. “I just don’t think jurors squeal on one another,” said Lee, who teaches criminal law. “I think most jurors feel ‘I have to live with these people. If I squeal, I’ve got nowhere to hide.’” At issue in People v. Engelman, 02 C.D.O.S. 6411, was California Jury Instruction 17.41.1, which judges give before deliberations. It directs jurors to advise the court if they suspect someone is refusing to discuss the evidence or plans to disregard the law. Joined by Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno, the chief justice said the high court wasn’t telling jurors to ignore alleged misconduct. “In our view, it is not conducive to the proper functioning of the deliberative process for the trial court to declare — before deliberations begin and before any problems develop — that jurors should oversee the reason and decision-making process of their fellow jurors and report perceived improprieties in that process,” George said. Tye Engeleman was convicted in San Diego County Superior Court of robbery and assault with a deadly weapon. His appeal rested solely on the contention that the jury instruction was given over his counsel’s objection, depriving him of constitutional rights to due process. The 4th District Court of Appeal affirmed the conviction, as did the California Supreme Court. But the majority invoked its “supervisory power” to void the instruction in future cases. “The law does not require that the jury be instructed in these terms,” George wrote. He went on to say that the dangers the instruction raises, such as a juror using it “as a tool to browbeat other jurors, “outweigh its benefit. “Jurors, of course, do not always know what constitutes misconduct, simply because of fierce disagreement among the jurors,” George added. “We believe [the instruction] not only has the potential to lead members of the jury to shed the secrecy of deliberations, but also to draw the court unnecessarily into delicate and potentially coercive exploration of the subject matter of deliberations.” In his dissent, Baxter said the majority overstated its case. “Despite the fact that the instruction has been given in hundreds of cases, the majority offers no evidence of such misuse,” he wrote. Baxter also mocked the majority for “focusing exclusively on the instruction’s possible effect on overly sensitive jurors.” “I hope trial courts will not misinterpret the majority and overreact by abstaining from reasonable efforts to prevent and remedy misconduct in a timely manner,” he wrote. “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.” California jury instructions are written by judges from the Los Angeles Superior Court.

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