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Caution to Jury Is Ruled Invalid

Trials: Judge's warning has called for jurors to report one another if they refuse to do their duties. Past convictions are not affected.


SAN FRANCISCO — The California Supreme Court this week threw out a jury instruction that permitted judges in criminal trials to admonish jurors to report other panelists who refused to deliberate or intended to disregard the law.

In a 4-3 ruling, the court said its disapproval of the 1998 jury instruction would not affect defendants who already had been convicted in trials where it had been given.

"It does not infringe upon defendant's federal or state constitutional right to trial by jury," Chief Justice Ronald M. George wrote for the court.

But the majority said courts should stop instructing jurors to police each other because the instruction was vague and could curtail or harm deliberations.

"There is a risk that the instruction will be misunderstood or that it will be used by one juror as a tool for browbeating other jurors," George wrote.

Unlike instructions that warn jurors not to visit the scene of a crime or to read press accounts, the instruction to report other jurors for refusing to deliberate "focuses on the process of deliberation itself" and could imperil the secrecy of jury deliberations, George said.

He said jurors might mistakenly believe that individuals who disagreed with them were refusing to deliberate or intentionally disregarding the law.

Justices Marvin Baxter, Ming W. Chin and Janice Rogers Brown dissented.

Baxter, who wrote the dissent, complained that the court was using its supervisory power to condemn an instruction because of "a remote and shadowy risk of harm." He called the instruction "useful and constitutionally permissible."

The case had been brought by Tye John Engelman, who objected to the reading of the instruction at his robbery trial in San Diego County, even though no juror had reported to the judge about a deliberation problem. Thursday's ruling upheld Engelman's conviction for robbery and assault.

Deputy Atty. Gen. Peter Quon Jr., who represented the prosecution in the case, said he thought the instruction was useful, but was relieved that the ruling would not jeopardize convictions.

The instruction was written by a committee of lawyers and judges and was not mandatory. Lawyers had the option of requesting it and judges the authority to give it.

Kyle Marie Wesendorf, the defense lawyer in People v. Engelman, S086462, could not be reached for comment.

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