Can a jury be found guilty of prejudicial misconduct by discussing the prospect of a hung jury and consequent retrial at which minor witnesses might again have to testify?

California, United States of America


The following excerpt is from People v. Senter, B225495 (Cal. App. 2012):

Senter first asserts that the jury committed prejudicial misconduct by discussing during deliberations the prospect of a hung jury and consequent retrial at which the minor witnesses might again have to testify. "'[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. . . .' [Citation.]" (People v. Danks, supra, 32 Cal.4th at p. 303.) A substantial likelihood of juror bias exists "'if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror.' [Citation.]" (Ibid.) "'[E]ven if the extraneous information was not so prejudicial, in and of itself, as to cause "inherent" bias . . .,' the nature of the misconduct and the 'totality of the circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose.' [Citation.]" (Ibid.)

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