What is the test for a claim of prejudicial misconduct waived when a defendant fails to object to the continued service of a juror?

California, United States of America


The following excerpt is from People v. Brim, 2d Crim. No. B275782 (Cal. App. 2018):

"A claim of prejudicial misconduct is waived when the defendant fails to object to a juror's continued service and fails to seek a mistrial based upon prejudice. [Citation.]" (People v. Russell (2010) 50 Cal.4th 1228, 1250.) The same rule applies where, as here, defendants fail to object that the trial court has intruded into the jury's deliberative process. The trial court asked all counsel whether they objected to its questioning jurors and asked counsel whether they wanted to question of any jurors. Defense counsel did not object to the trial court's procedure in general, or to any of its specific questions. Counsel never informed the trial court that they considered its questions too detailed, coercive, intrusive or invasive of the jury's thought processes. Nor did defense counsel raise this issue in their

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motions for new trial. As a consequence, appellants forfeited this issue because they did not object to the trial court's course of action. (People v. Holloway (2004) 33 Cal.4th 96, 124.)

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