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March 31, 1987

United States of America
Robert Craig Wexler

Ditter, J.

The opinion of the court was delivered by: DITTER


 I. Jurors' Conversations

 In this case, the defendant seeks a new trial because the jurors who convicted him of distributing hashish were permitted to discuss the case among themselves before my final charge on the law. The jurors had been told they were not to discuss the case with anyone and were not to let anyone discuss it with them. However, in response to a juror's question, I said they could talk with each other but should not have private conversations nor make up their minds on anything until they had heard all of the evidence, the arguments of counsel, the court's charge, and the viewpoints of their fellow jurors. *fn1" I repeated the substance of these instructions the following day. *fn2"

 Defendant contends that his right to a trial by a fair and impartial jury and his right to due process were thus denied. Counsel asserts that the jury should have been told not to discuss the case among themselves until after the closing arguments and the court's charge.

 I can only assume that the jurors followed my instructions to the letter. As the Supreme Court recently reiterated, "We have not yet attained that certitude about the human mind which would justify us in . . . a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instruction of the trial court. . . ." Lakeside v. Oregon, 435 U.S. 333, 340 n.11, 98 S. Ct. 1091, 1095, 55 L. Ed. 2d 319 (1978), quoting Bruno v. United States, 308 U.S. 287, 294, 60 S. Ct. 198, 84 L. Ed. 257 (1939). Having specifically told the jurors they were not to discuss the matter in small groups and were not to make any decisions until after they had heard the arguments of counsel, my instructions on the law, and the viewpoints of their fellow jurors, I expressly identified, explained, and warned against the dangers that the Kerpan court sought to avoid with a prophylactic code of silence. Nonetheless, additional comment on the first two Kerpan reasons for silence may be in order.

 The first reason cited in Kerpan, since the prosecution's evidence is presented first, a juror's initial opinion is likely to be unfavorable to the defendant, really refers to the order in which the evidence is presented and is no more a reason for prohibiting jury discussion than it is for encouraging it. It assumes that discussion will inevitably lead a juror to an opinion but that the absence of discussion will mean that no juror will reach an opinion on anything. This is an unvarnished non-sequitor which needs only to be stated to be exposed. *fn3"

 The second reason, once a juror declares himself before his fellow jurors he is likely to stand by his opinion even if it is contradicted by subsequent evidence, at least has the ring of pop psychology but is based upon an assumption which is, to my knowledge untested and, to my mind, unbelievable. It assumes that the juror who states an opinion is less likely to change his mind than the juror who has an opinion but does not state it. That would follow only in the rare instance where a need for self-vindication overwhelms a juror's sense of duty. I believe that the vast majority of jurors are concerned, responsible, conscientious citizens who take most seriously the job at hand. I find it difficult to believe that as a group they are more interested in justifying their own loosely formed notions than in doing justice. Moreover, Kerpan's second reason must be viewed in the context of examination, cross-examination, traditional American ideas of fairness, the notion that there are two sides to every story, the give and take of jury deliberation, and my instructions. In my first instruction, I told the jurors five times not to make up their minds on anything and explained they should not do so because subsequent evidence might put the matter in a completely different light. In my second instruction, I again told them four times not to make any decisions until they had heard all the evidence. Therefore, they were warned not to cling to initial impressions. Under my instructions, no juror should have been reluctant to reach a different viewpoint under the influence of additional evidence, the arguments of counsel, the charge of the court, and the viewpoints of his fellows. "The important thing is not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury." United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 42 L. Ed. 2d 61, 95 S. Ct. 62 (1974). *fn4"

 There were two reasons why I decided not to prohibit jury discussion during the course of the trial. First, I believed that by adequate instruction I could overcome the reasons traditionally given for not allowing jurors to consult with each other during the progress of the case. Second, I believed they could discharge their responsibilities in a better way if they were permitted to discuss matters as the trial progressed.

 The duty of a juror involves complex thought processes: assimilating and comprehending the evidence, determining credibility issues, recalling the evidence, putting it all into context and relative degrees of reliability, participating in discussions, and making informed decisions. Jurors need all the help they can get and their only source of untainted information and assistance is from those who share with them the responsibility for making the ultimate decisions.

 The most obvious reason why jurors will do a better job if permitted to discuss matters among themselves, if they wish to do so, is so that they can alert each other as to matters which may affect credibility. Suppose, for example, a juror becomes convinced a prosecution witness on cross-examination is receiving signals from a spectator. If he is precluded from discussing the case with his fellow jurors, he cannot ask them to check to see if his suspicions are correct. Only at the end of the trial when it is to late to have the matter resolved can it be mentioned. If signals were given, subtle signals, but obvious to an alerted observer, it will be one against 11 for concluding the witness was unworthy of belief, when it should have been all 12. I can see no reason why matters of credibility should not be discussed by adequately instructed jurors during the progress of trial and many reasons why they should be.

 The next reason for permitting jurors to discuss the case with each other is that it will make them more attentive, more apt to be interested and involved, more likely to focus on the issues as they unfold. Jurors who have been told, figuratively, to clap their hands over their mouths, who cannot share their ideas and impressions, may tend to clap their hands over their minds as well.

 There are three other reasons why juror discussion will enhance juror-performance: such conversations can be an aid in assimilation, comprehension, and recollection. A juror may simply miss a word because someone has coughed. Not all witnesses speak with the same degree of clarity. Not all jurors have the same ability to hear. If someone has missed something, why should the puzzle be preserved until the end of the trial when no one will be sure exactly who said what? A juror may hear but not understand the significance of what he has heard. If he cannot ask his fellows for help, there will be unwarranted inconsistencies and needless uncertainties as the trial progresses. A juror may hear, understand, and then forget. Jurors are allowed to take notes, United States v. Maclean, 578 F.2d 64 (3d Cir. 1978), for an obvious reason: "It is a valuable method of refreshing memory." 578 F.2d at 66. If a ...

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