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state's remedy for juror misconduct?

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September 26, 2005, 10:31
Steve Lilley
state's remedy for juror misconduct?
I need a very quick answer if anyone has one.
What is the state's remedy if it comes to the court's attention AFTER the jury has been sworn in that a juror lied about a material matter during jury selection? Does the state have to request a mistrial if there is an alternate juror available?

Thanks for the help.
September 26, 2005, 10:56
The State should never ask for a mistrial. Jeopardy could attach if the State asks for it, be careful. Encourage court to put alternate juror on or pick new panel. Hope that helps.
September 26, 2005, 11:09
Tim Cole
You need to review CCP 36.29 about when a juror can be replaced with an alternate. Be careful. In a noncapital case, the circumstances are very limited. I do not agree that a mistrial is a problem in such a situation. So long as the mistrial is declared for manifest necessity, the court can grant a non-jeopardy mistrial. A juror who will get you a reversal on appeal I would think would be grounds. I would think that any judge would be willing to grant such a mistrial on his or her own motion to protect the integrity of the conviction should there be one. The only way jeopardy attaches to a retrial is if the prosecutor does something to intentionally create a mistrial or consciously disregards the risk of a mistrial, by some conduct of the prosecutor. If this was merely a lieing juror which was discovered later on I don't see how it could ever be jeopardy.
September 26, 2005, 11:30
I agree with Tim, replacing jurors or going ahead with 11 in a non-death case is pretty scary. When I've had it come up, I ask the judge to let the defense decide. His options are, use the alternate if you've got one, go forward with 11, or mistrial. Make the attorney and the defendant agree on the record to whichever option is chosen.
We've almost always ended up punting the jury and starting over, but the defense always asks for or agrees to the mistrial, so no harm done, except a waste of everyone's time.
September 26, 2005, 11:41
Steve Lilley
Just to clarify, the lie by the jury favors the defendant, not the state. Don't know if that really changes anyone's opinion here, but I thought I should mention that.
September 26, 2005, 12:01
I agree with Lisa--- Always put the ball in the defendant's court. Just, as a matter of practice, never a good idea for the State to be asking for a mistrial even in situations where it's no fault of the state. Talk with the court about it and let the issue be raised by the court and defense.

September 26, 2005, 13:55
Steve Lilley
News just keeps on coming in from this trial:

The defendant actually PLED GUILTY in this case, a sexual assault of a child.

So what we have is a juror who has a son who was accused of the exact same crime with almost the exact same facts. He apparently believes that cases like this one should be probation cases. Unfortunately, when the judge called him up, he said he could set everything aside and be impartial.

My new question is this, if the State gets a motion for mistrial granted by the judge, does double jeopardy pose any problem at all? After all, the defendant has already pled guilty. How can the state be barred from punishing someone who has pled guilty to a crime?

Thanks again,

Steve L.
September 26, 2005, 14:04
Don't ask for a mistrial. You will be sorry. I would just pray that the other 11 will shame the one into reason or that you mistry through inability to reach a unanimous verdict.
September 26, 2005, 14:30
chris parker
How does/do double jeopardy and punishment stage of a trial interact?