Special Verdicts vs. Special Verdict Forms

Where a special verdict is hopelessly ambiguous as to whether it awards duplicative damages, the rule is that the trial court should ask the jury to clarify the verdict. But what if the jury is discharged before anyone objects to the ambiguity? The court of appeal reminds us in Zagami, Inc. v. James A. Crone, Inc., case no. D049563 (4th Dist. Mar. 10, 2008), that it depends on whether the ambiguity arises from the form of the verdict or the jury’s answers.

Error in the form of the verdict is subject to waiver if no objection is made. But ambiguity created by the jury’s responses is not waived, even if no objection is raised until after the jury is discharged. (See fn. 6 of the case.) Indeed, in this case, the appellant argued initially that the verdict was unambiguous and only changed its tune after entry of judgment, and the court reverses because the verdict is “hopelessly ambiguous.”

Keep the distinction in mind, and make sure which you are dealing with.

Jury Foreman’s Blog a Likely Issue on Appeal

A local trial court has just denied a new trial motion based on juror misconduct, where the misconduct was the jury foreman’s blogging about the gang member’s 19-day murder trial while it was going on, including posting a photo of the murder weapon, commenting on the evidence and witnesses, praising his own performance as jury foreman, and criticizing the work ethic of courtroom staff. From today’s Ventura County Star:

After sentencing a gang member to prison for murder, a Ventura County judge ripped into the jury foreman Tuesday, holding the juror in contempt of court for writing a blog that exposed details of the case during the trial.

The blog, or Web log, also criticized the judge’s staff and complained that the 19-day trial was taking too long.

Ventura County Superior Court Judge Edward Brodie told the jury member, identified only as Juror No. 7, that he had failed to follow the judge’s daily instructions to refrain from discussing the case with anyone during the trial.

Attorneys said this apparently marks the first time a jury member in Ventura County has been accused of misconduct for producing a blog, an increasingly popular type of journal on the Internet.

“. . . an increasingly popular type of journal on the Internet.”  Ya think?

The jury foreman testified at his contempt proceedings that “he didn’t believe his blog constituted ‘discussing the case’ in defiance of the judge’s instructions.”  Really?  According to the defendant’s lawyer, the blog included a chat room where readers asked questions and the juror answered them.

The article includes some sparring between counsel over the merits of raising the blog as an issue on appeal.  The trial judge’s ruling, obviously, means that he did not think that the misconduct prejudiced the fairness of the trial.

According to the article, the blog is titled “The Misanthrope,” but none of the blogs I found that included “misanthrope” in the title had posts about the trial.  It’s possible the judge ordered the juror to take down the posts, but I couldn’t even find cached pages in Google.

Why is New York’s Highest Court not “Supreme”?

It’s a question well outside this blog’s usual jurisdiction, but my guess is that this question crossed the minds of almost all of us during law school, when we learned that New York’s court of last resort is called the “Court of Appeals,” while the trial courts are “Supreme Courts.”

Professor Orin Kerr got curious enough to do some Googling on the issue, and posts what he learned — which includes events dating back to 1777 — at The Volokh Conspiracy.  So if you’d like to end your week (or start your weekend) with some legal trivia, head over there.

An Interesting Law Blog from an Interesting Source

I’ve run across an interesting blog:  Winning Trial Advocacy Techniques.  With a title like that, I don’t need to tell you what its about.  But I got really interested in it after I’d read some interesting posts and clicked on the “about” link to see who runs it.  Turns out its an organization called “Trial Theater,” yet another name that gives you an idea of the organization’s perspective.  Worth checking out.

CALCRIM No. 2302 Survives Appellate Challenge

Revisions to jury instructions are generally supposed to make things easier for juries.  In People v. Montero, case no. C052423 (3d Dist. Oct. 2, 2007), the defendant contended that Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM no. 2302, concerning the elements of the crime of possession for sale of a controlled substance, made it just a little too easy for the jury to convict because it allegedly does not require the jury to find that defendant “knowingly exercised control” over the controlled substance and for failing to use the term “dominion and control” in the element of possession.

(PDF download of entire CALCRIM available here.)

Comparing CALCRIM 2302 to the common elements of all drug possession offenses described in Witkin (2 Witkin and Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Publivc Peace and Welfare, § 82, p. 592), the court finds CALCRIM 2302 stands up to both challenges raised by defendant.  It satisfies the requirement of knowledge by requiring knowledge of both the fact of possession (the jury must find that the defendant “knew of [the controlled substance’s] presence” and knowledge “of the substance’s nature as a controlled substance.”  Regarding “dominion and control,” the court finds the phrase “redundant and archaic,” notwithstanding its use in many opinions to describe possession.  The phrase “is merely a different way of saying the defendant possessed the substance physically or constructively.”  Thus, it is enough that CALCRIM 2302 instructs the jury that “[a] person does not have to actually hold or touch something to possess it.  It is enough if the person has control over it or the right to control it, either personally or through another person.”

Read also: What you need to know about plea bargains.

CALCRIM No. 226 Survives Appellate Challenge

In People v. Wamer, case no. F051027 (5th Dist. Sept. 12, 2007), the Court of Appeal holds that CALCRIM No. 226 does not impermissibly lighten the prosecutor’s burden of proof.  Wamer, convicted of murder, contended that the last paragraph of the instruction lightened the prosecutor’s burden by its use of the words in bold italics in the below excerpt (emphasis added), the last paragraph of the instruction:

If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says.  Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.

The Court of Appeal finds that CALCRIM No. 226 is essentially equivalent to another criminal jury instruction that has withstood challenge in the Supreme Court.  That instruction is CALJIC No. 2.21.2:

A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others.  You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.

Warner’s emphasis on “should” ignores the word following: “CALCRIM No. 226 states that the jury “should consider not believing” – not that the jury should not believe – anything in the testimony of a witness who lied about something significant.” (Emphasis added.)

In the end, the court finds the differences to be semantic only:

Since Warner fails to persuade us that semantic differences between CALCRIM No. 226 and CALJIC No. 2.21.2 are even material, let alone prejudicial, we reject his challenge to the former by deferring to a long line of California Supreme Court cases rebuffing analogous challenges to the latter. 

So CALCRIM No. 226 is safe for now.

Mercedes-Benz Asks for a Low Standard for Assessing the Merchantability of an Automobile

Click on the “Only Mercedes-Benz” link on the home page of the Mercedes-Benz USA website, and you are presented with a new page with the following title: 


120 years later, the legend continues.

So I find it rather funny that in Isip v. Mercedes-Benz USA, LLC, case no. B192382 (2d Dist. Sept. 12, 2007), Mercedes-Benz requested the court to instruct the jury that the warranty of merchantability is not breached so long as a vehicle gets you from place to place in one piece.  Isip contended she experienced the following problems with her car:

The air-conditioning emitted an offensive smell every time it was turned on, giving Isip a headache and making her sister sneeze.  The car made a loud tugging noise when she engaged the gear, and it made a clanking noise when Isip released the brake in reverse.  When the car automatically shifted gears to pick up speed, the car pulled back, hesitated, and then took off like a slingshot.  It also hesitated and pulled back before slowing down.  The engine made a loud knocking sound and there were fluid leaks.  White smoke came out of the exhaust system. 

At the time of trial, Isip’s automobile still had problems with smoke, transmission hesitation, and a clanking noise in the brakes.The trial court refused a request from Mercedes-Benz to add language to the standard instruction (CACI 3210) for the implied warranty of merchantability.  The requested addition was:

The implied warranty of merchantability does not impose a general requirement that goods precisely fulfill the expectations of the buyer; rather, it provides for a minimum level of quality which the law describes as being fit for the ordinary purposes for which such goods are used.  In the case of automobiles, the implied warranty of merchantability can be breached only if the vehicle manifests a defect that is so basic that it renders the vehicle unfit for its ordinary purpose of providing transportation. 

The court of appeal affirmed the trial court’s refusal to give the additional instruction:

[Mercedes-Benz’s] attempt to define a vehicle as unfit only if it does not provide transportation is an unjustified dilution of the implied warranty of merchantability.  We reject the notion that merely because a vehicle provides transportation from point A to point B, it necessarily does not violate the implied warranty of merchantability.  A vehicle that smells, lurches, clanks, and emits smoke over an extended period of time is not fit for its intended purpose. 

Let alone fit to be a Mercedes-Benz!  But what the heck, everyone produces a lemon once in a while.

Given the amount at issue (the car’s purchase price was approximately $47,000 and the judgment for Isip was only $20,000), this case could not have been very cost-effective to litigate through appeal, and initially I was surprised no settlement was reached at the trial level.  Perhaps Mercedes-Benz was using this as a test case for the requested jury instruction.  A decision adopting the requested language would have given automobile manufacturers a significant advantage in future suits.

Postage Stamp Honoring Jury Duty

Today, the U.S. Postal Service issues a first class (41¢) postage stamp honoring jury duty, which you can buy here.  The design is nicely done and eye catching.  If courts used the stamp to send jury summonses, perhaps people would be more motivated to serve on a jury.

Jury Stamp

I wonder how many will be used instead to mail jury duty exemption forms in response to jury summonses.  And how many people will notice.

Ninth Upholds Death Penalty Despite Jury’s Reference to Bible during Penalty Phase Deliberations

Stevie Lamar Fields was convicted in California state court of heinous crimes, including murder, which he committed in the course of a three-week spree that he started just two weeks after completing a prison stretch for manslaughter.  During the penalty phase of his trial, the jury foreman consulted a Bible, a dictionary, and other reference texts, made notes of points for and against the death penalty, then shared those notes with the jury.  The foreman’s notes in favor of the death penalty included Biblical passages.  Fields was sentenced to death.

The District Court denied habeas relief on the conviction but granted it as to the death penalty. The Ninth Circuit’s en banc reversal of habeas relief for the death sentence in Fields v. Brown, case no. 00-99005 (9th Cir. Sept. 10, 2007) is generating law blog buzz. 

The Ninth summarized Fields’ arguments regarding the Biblical references as follows:

[Fields] submits that there is a material difference between a juror’s commenting on the evidence from general knowledge that other jurors can easily rebut, and a jury’s considering written notes of religious mandates and appeals to a higher authority.  And he contends that the Biblical verses were “strong medicine” that supported imposition of the death penalty when the jurors were split in favor of life without the possibility of parole, thus were prejudicial.

Applying an objective test for undue influence, the court opines that a jury would not be unduly influenced by the notes:

Whether or not [the foreman] should have brought his notes to the jury room and shared them, we cannot say that the Biblical part of the “for” part of the notes had a substantial and injurious effect on the verdict. His own notes had an “against” part as well.  So far as we can tell, the communication occurred early on in deliberations.  Jurors could take as much time as they needed to sort through the evidence and reflect on whether the ultimate penalty was the right penalty.  More importantly, the jury was instructed to base its decision on the facts and the law as stated by the judge, regardless of whether a juror agreed with it. We presume that jurors follow the instructions. 

Ultimately, however, the court appears to rely on the presence of aggravating factors in support of the death penalty as a counterweight to the notes.  The aggravating evidence was so substantial, the court finds, that jury misconduct had no “substantial and injurious effect or influence in determining the jury’s verdict.” Given this substantial aggravation, the court saw “no prejudicial constitutional error on account of the juror’s notes that requires issuance of the writ.”

By my read, the majority (the case generates three opinions covering 99 pages) leaves open the possibility that where aggravating factors are not so prevalent, or evidence of them not so great, the influence of Biblical materials in the jury deliberations might well be found to have an injurious influence on the jury.

Other law blog coverage can be found at Decision of the Day, Capital Defense Weekly (which calls the decision “cert. bait”), Deliberations (very detailed), and Sentencing Law and Policy (providing links to prior posts on circuit splits on this issue).

How Appealing has this round-up of press coverage.

Trial Lawyers, Did You Know About This?

A site that tracked back to this post of mine looks like it might be of interest to my trial lawyer readers.  The site juryexperiences.org subheads its page, “What Really Happens On Juries.”  It opens to a “News & Opinion” section that is headed “Selected clippings from blogs and the press, with links to sources” (which is where they linked to me).  The most intriguing area, at first glance, appears to be this link: Read, post and discuss jury experiences on our discussion forum!

That might be worth exploring1