Jurors deliberating on Defendant not testifying, and Courts weighing evidence against Defendant with this misconduct…is that proper?

Posted by on February 3, 2018 in #DUIdata | 0 comments

Jurors deliberating on Defendant not testifying, and Courts weighing evidence against Defendant with this misconduct…is that proper?

Jurors deliberating on Defendant not testifying, and Courts weighing evidence against Defendant with this misconduct…is that proper?

Obviously Defendant invoking the right to not testify is just as important as the law that Jurors cannot consider the fact Defendant didn’t testify. But, we’re human. So what happens when Jurors do deliberate on this.

Let me boil this down, and then discuss everything in full. Because this is an interesting case, and addresses some uncharted legal waters in California regarding this issue here. The Readers Digest version is if Jurors improperly deliberate on Defendant not testifying, can the Court consider the weight of the evidence in light of that? And to what extent? Peaked your interest? Let’s dive in. This is from the 11/16/17 decision People v. Solorio (Court of Appeals of California, Fourth District, Division One).

The quick facts: It’s a murder case, and Defendant is arguing self-defense. “During the deliberations, the entire jury brought up and discussed the fact that the defendant Francisco Solorio did not testify in his own behalf. Some jurors were asking why the defendant did not testify. Some jurors thought that the defendant Solorio felt guilty and he knew he `did it’ and that is why he did not testify.” Uh oh, doesn’t sound proper to me.

Each time Jurors discussed Defendant not testing “the foreperson admonished other jurors not to consider the topic, and they would move on to other issues before circling back to it.” The Court took testimony from all Jurors, and it was a mixed bag of who said Jurors deliberated on this or not (People disagreeing about this? …this is my shocked face…). What the Court here took issue with is that Jurors repeatedly deliberated on this issue after Foreperson admonished them to stop.

Ok, so let’s start from the top. “When the record shows there was misconduct, the defendant is afforded the benefit of a rebuttable presumption of prejudice.” So the Court applies a two-part test to assess whether the presumption of prejudice had been rebutted by the People:

  1. Test One: Is “a bias found if the extraneous material judged objectively is inherently and substantially likely to have influenced a juror.”
  2. Test Two: If Test One “is found to be negative, you look at the totality of the circumstances.”

Here, the Trial Court found “there was no prejudice under the first test because each time the topic came up, jurors “were promptly admonished” by the Foreperson and the Jurors “ceased discussion.” Also under Test Two, the Trial Court found “no substantial likelihood of bias[.]”

Here’s the kicker for this case: in evaluating these decisions, the Trial Court “consider[ed] the strength of trial evidence against the defendant in assessing prejudice.” That raises a red flag, and this is a new issue: “The parties have not cited, nor have we found, a case that evaluates prejudice from the type of misconduct we have here based on the strength of the evidence at trial.” And this is what the Court took issue with against the Trial Court.

So the Court of Appeals here found the jury misconduct in this case went directly to the ultimate issue—Defendant’s guilt for murder. With that, the Court now considers factors to whether the People rebutted the presumption here. These factors are:

  1. Did Jurors drew adverse inferences of guilt from Defendant’s decision not to testify. Example: A Court “found no prejudice from the jury’s brief discussion where there were no adverse inferences expressed regarding the defendant’s decision not to testify.” See People v. Leonard (2007) 40 Cal.4th 1370.
  2. What was the length of discussion about the topic. Example: A Court found “the presumption rebutted where the juror merely made an ‘oblique remark about a party not saying anything to protect himself’ and there was no apparent lengthy discussion into inappropriate areas.” See People v. Hord (1993) 15 Cal.App.4th 711.
  3. Where Jurors reminded not to consider Defendant’s decision not to testify. Example: A foreperson promptly reminding jurors when the improper statement was made, would (in the absence of objective evidence to the contrary) constitute strong evidence to rebut the presumption of prejudice. See People v. Loker (2008) 44 Cal.4th 691.

Again, when Jurors keep discussing an issue after being admonished to stop: that’s the sticking point here. And by contrast, a prompt reminder would NOT be sufficient “to rebut the presumption of prejudice if there were objective circumstances indicating that the reminder was ineffective.” A “persistent refusal [by the jury] to follow the court’s instructions would tend to confirm the prejudicial effect of the misconduct claimed by defendants.”

So, back to this issue of the repeated discussion, after admonishment. “Here, the trial court found that jurors repeatedly discussed Solorio’s decision not to testify. Despite admonitions each time the topic was brought up, jurors circled back to the topic ‘several times.’ There was, therefore, ‘objective evidence establishing a basis to question the effectiveness of the reminder.’ Where repeated reminders were given that Solorio’s lack of testimony could not be considered, we cannot say they were sufficient to rebut the presumption of prejudice.” Defendant wins the ability to sit through another trial with new Jurors.

The Court leaves us with the fadeaway shot saying they also disagree with the Trial Court about the record here overcoming the Juror misconduct: “If the trial evidence were so overwhelming, why would the jury repeatedly discuss their view that Solorio must be guilty because he did not take the stand? Given the nature of improper statements here—that Solorio did not testify because he was guilty—and the repeated revisiting of this matter over a one-hour period despite admonitions, we would find at least a ‘reasonable probability’ that actual harm resulted from the misconduct even if we were to consider the ‘entire record.’”


About me, San Diego DUI lawyer Eric Ganci:

I am an owner and DUI lawyer in San Diego with my own firm Ganci, Esq., A Professional Corporation.  I am trained in blood testing for drugs and alcohol, trained on breath testing, and trained to train police on field sobriety tests.  I have authored Thomson West Publications regarding DUI science and law, and am a founding member of the DUI Defense Lawyers Association, a national group.  

I am recognized, after completing the required coursework and passing the certification exam, as a Lawyer-Scientist by the American Chemical Society, Chemistry and the Law division.  I have been fortunate to be awarded many other awards, and  you can see my full bio here.

I received my JD from Thomas Jefferson School of Law, my BA in Music Education from Northern Illinois University, and graduated from the Trial Lawyers College in 2013.

I have offices in San Diego and Vista (North County San Diego), and I represent persons arrested for DUI in all counties in San Diego.

Also, per California Rules of Professional Conduct, although I try to simply make them informative and entertaining, some persons may take it as a legal solicitation.  It’s not, and it does not in any way form any kind of attorney-client relationship with whoever reads it.

Eric Ganci, Esq., DUI trial lawyer


Cell: 760-216-4941

Email: Eric@GanciEsq.com

Fax: 888-241-5887


Downtown San Diego office:

350 10th Ave, Ste 1000

San Diego CA 92101


North County San Diego office:

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