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

Rick Moen rick at linuxmafia.com
Tue Feb 5 23:30:31 PST 2008

Quoting Christian Einfeldt (einfeldt at gmail.com):

> 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.

Well, the ones I was pointing to are just California Judicial Counsel's
model instructions for criminal trials in this state.  My understanding
is that _most_ criminal trial judges will be picking and choosing
language from that document, after haggling between the two counsels
about which parts apply.  California's Rules of Court (Rule 2.1050(e))

   Use of the Judicial Council instructions is strongly encouraged. If
   the latest edition of the jury instructions approved by the Judicial
   Council contains an instruction applicable to a case and the trial judge
   determines that the jury should be instructed on the subject, it is
   recommended that the judge use the Judicial Council instruction unless
   he or she finds that a different instruction would more accurately state
   the law and be understood by jurors. Whenever the latest edition of the
   Judicial Council jury instructions does not contain an instruction on a
   subject on which the trial judge determines that the jury should be
   instructed, or when a Judicial Council instruction cannot be modified to
   submit the issue properly, the instruction given on that subject should
   be accurate, brief, understandable, impartial, and free from argument.

Obviously, I'm way out of my field, but my guess is that it's a really 
rare judge who doesn't do exactly that.

> Have you done this before?  How do you know what trial you will be assigned
> to?

In two cases, I got as far as pretty late in voir dire.  You can read
about my getting ejected here (in the first case, after sweating in the
hot seat, in judge's chambers):

"Jury Duty" on http://linuxmafia.com/kb/Essays/

> 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 seem to have gotten lucky, in my two cases.  ;->

(In the second case I almost got to serve on the jury for, the judge
told the members of the venire immediately to not investigate the
_case_, but said nothing about investigating the _law_.)

> 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.

Well, family history and all.  I've been trying to understand law since
the age of 10 (starting with civil negligence).  Also, I've taken a
bunch of law classes, partially in preparation for a prior professional
existence.  Also, I just find it interesting.

> 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 truth, of course.  Much as I know that telling the truth can offend
judges and put one in hot water, perjury's much worse.  ("Don't piss off
the judge" is a good rule for living, in general.)

> 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.

No, I'm just a simple sysadmin who does everything he can to stay _out_
of court.  ;->

But probably I'd not mention in the jury room anything about legal
research.  (I read the jury instructions mostly to know in advance what
to expect.)

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