Chapter 4 - § 4.3 SPECIFIC ISSUES



➢ Juror Bias. A trial court's application of CRE 606(b) to bar evidence of a juror's racial bias against a criminal defendant violated the defendant's Sixth Amendment right to an impartial jury. The juror made racially biased statements during jury deliberations including that (1) the defendant "did it because he's Mexican and Mexican men take whatever they want"; (2) Mexican men are physically controlling of women because they have a sense of entitlement and think they can "do whatever they want" with women; (3) the defendant "was guilty because, in [the juror's] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women"; (4) where the juror used to patrol as a law enforcement officer, "nine times out of ten Mexican men were guilty of being aggressive toward women and young girls"; and (5) the defendant's alibi witness was not credible because, among other things, he was "an illegal." The defendant was convicted of one count of unlawful sexual contact and two counts of harassment. Not only did the juror rely on "a dangerous racial stereotype to conclude [the defendant] was guilty and his alibi should not be believed, but he also encouraged other jurors to join him in convicting on that basis." Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 862, 870 (2017).

➢ Intoxication; Juror or Judge. While a moderate use of liquor by a juror is not a ground for reversal of a judgment, uncontradicted affidavits showing that a juror was intoxicated while deliberating upon a verdict were sufficient to justify setting aside the verdict and granting a new trial. It was shown that the judge was himself intoxicated when he denied the motion for mistrial based on juror misconduct. A judge's intoxication during the disposition of a case is a basis to conclude that a fair and impartial trial was not accorded to the parties. Repath v. Walker, 21 P. 917, 917-18 (Colo. 1889).
➢ Juror Communications. When information comes to the court that extraneous information was brought to the jury, the trial court should examine the individual jurors to determine whether the information had a prejudicial effect. People v. Fox, 862 P.2d 1000, 1003 (Colo. App. 1993).

➢ Juror Communications. Comments by an alternate juror to a regular juror that counsel was leading his own witness and putting words in his mouth did not require a mistrial when the regular juror said nothing the alternate had said would influence her decision in the case; it did not constitute tampering with a juror. Kepley v. Kim, 843 P.2d 133, 136-37 (Colo. App. 1992).

➢ Juror Communications. While on a jury view of a place or property, no person shall speak to the jury on any subject connected with the trial excepting only the guide and officer in compliance with instructions given to them by the court. C.R.C.P. 47(k).

➢ Juror Communications. Statements by the defendant's employees and witnesses to jurors outside the court is misconduct but not such that a mistrial was required since the statements were not disclosed by the jurors to others on the jury. Denver Alfalfa Milling & Products Co. v. Erickson, 239 P. 17, 18-19 (Colo. 1925).

➢ Juror Communications. No error in failing to admonish the jury with respect to implications it might draw because the plaintiff's twin brother talked to some of the jurors during a recess about fishing and mining and identified himself as the twin brother of the plaintiff. J & K Construction Co. v. Molton, 390 P.2d 68, 74-75 (Colo. 1964).

➢ Juror Communications. A mistrial is properly ordered where jurors overheard the bailiff say that the reason a criminal defendant was disabled was due to an injury received by the defendant while in prison for a prior offense. People v. Moore, 701 P.2d 1249, 1253 (Colo. App. 1985).
➢ Juror Communications. It is improper for informal communications to occur between the court and jury; all such communications should be made in open court with notice to all parties. Barriner v. District Court, 484 P.2d 774, 777 (Colo. 1971).

➢ Juror Communications; Deliberations. While the jury is deliberating, the officer shall not suffer any communication to be made to any juror or make any himself or herself unless by order of the court, except to ask the jury if it has agreed upon a verdict; he or she shall not, before the verdict is rendered, communicate with any person regarding the state of its deliberations or the verdict agreed upon. C.R.C.P. 47(l).

➢ Juror Communications; Deliberations. Improper communications between the bailiff and the jury during jury deliberations had a reasonable possibility of affecting the jury verdict when one juror communicated to the bailiff that she was not feeling well and was the only juror who favored the plaintiffs; when the juror asked what result she could expect if the jury could not reach a unanimous verdict, the bailiff responded that the jury could be confined for a period of two weeks, and the bailiff's comments were overheard by other jurors. Ravin v. Gambrell, 788 P.2d 817, 821 (Colo. 1990).

➢ Juror Communications; Deliberations. "After the jury has retired for deliberation, if it desires additional instructions, it may request the same from the court; any additional instructions shall be given it in court in the presence of or after notice to the parties." C.R.C.P. 47(n).

➢ Juror Communications; Deliberations. Rule that requires that additional instructions to the jury be given in open court in the presence of or after notice to the parties is not intended to reach or embrace other communications that could not be construed as instructions as to the law in the case and that are manifestly harmless in their character; act of denying request for graph paper and granting request for legal pad were not barred communications by court. People in the Interest of E.S., 681 P.2d 528, 530 (Colo. App. 1984).

➢ Juror Discussion of Case Outside Trial. A juror, later named foreperson, who discussed a pending criminal case with customers at a bar, including asking them questions about the mechanics and abilities of the type of pistol used to commit the crime, committed juror misconduct sufficient to require

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