[conspire] (forw) Reiser trial: DNA tests partially flubbed, defence motion for mistrial

Christian Einfeldt einfeldt at gmail.com
Tue Feb 5 23:00:47 PST 2008


On Feb 5, 2008 10:08 PM, Rick Moen <rick at linuxmafia.com> wrote:

> > [...] the thing that would be really interesting, Rick, is to for us
> > to see what the jury instructions are as submitted to the jury.  It
> > will be a long document.  Probably more than 100 pages.
> It _is_ more than 100 pages.  356 pages, to be precise.  I skim-read it
> recently, when I came at least somewhat close to being empaneled on a
> murder jury here in San Mateo County.

In civil cases, the jury instructions are submitted to the judge in advance
of the trial, and then there are discussions as the case is getting toward
the end of evidence to discuss changes to the instructions.  But in most
civil cases, the jury instructions are not set until it is clear what
evidence will be at issue.  After evidence, there are almost always changes
to the jury instructions, at least in civil cases.

Where did you get access to the court file?  In civil cases, the jury
instructions usually sit on the judge's desk in chambers until the end of
the case, at which time they are entered into the record of the case as the
judge reads them into the record.

It's pretty cool that you are taking this much interest in this case.  Maybe
you could write a book about it afterward.  But that would take a lot of
interviewing and reading.

> (Based on a similar experience a decade earlier, I know that if you're
> in a jury pool and want to have some idea of the legal context, you want
> to do your reading as early as possible, to predate the inevitable
> judge's order to not research the law on your own.)

Have you done this before?  How do you know what trial you will be assigned
to?  In most cases that I have experienced both as a lawyer and as a
potential juror, at least in SF, you sit in the jury assembly room drinking
coffee and eating muffins while awaiting to get assigned to a court room.
As soon as you get assigned to a courtroom, the judge tells you not to
investigate.  So as soon as you have a clue as to what the case is about,
you are already ordered not to investigate.

I think that it is cool, though, that you have so much interest in cases
that you would consider reading some law on it beforehand.

I wonder, though, how that would affect your eligibility to serve.  For
example, what would you say if the attorneys asked you in voire dire as to
if you had researched law that might be pertinent to the case?  The judge
would at any rate instruct you at the end of the case to apply only the law
that was contained in the jury instructions.  So even if you used the law
that you had researched, other than for your own background, it would seem
that if it came out that a juror had researched the law AND discussed prior
research during jury deliberations, that would be a basis for setting aside
the verdict in a post-trial motion, at least in the civil arena.  But maybe
I'm wrong.  It sounds like you have had some experience with this.

> That is _not_, however, the standard jury instructions for criminal
> cases in California.  _That_ you'll find here:
> http://www.courtinfo.ca.gov/jury/criminaljuryinstructions/
Right, they do the same thing for civil jury instructions.  I guess that I
should have figured that they would do it for criminal cases.  I just didn't
have the time to even think about that.
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