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self-study / Civil Practice

Errors relating to the presence of a jury

David M. Axelrad

Partner, Horvitz & Levy LLP


UC Hastings COL; San Francisco CA

In many common law jurisdictions, civil juries are permitted only in limited cases. See, e.g., H v. Ministry of Defence, 2 W.L.R. 1192 (1991) (jury trial in personal injury cases allowed in England only in exceptional circumstances). However, California, like other U.S. jurisdictions, guarantees the right to a trial by jury in civil cases. See U.S. Const., 7th Amend.; Cal. Const., art I, Section 16. Lay juries create the potential for a wide range of errors that can result in a reversal on appeal if the errors are prejudicial (see Cal. Const., art. VI, Section 13; Code Civ. Proc., Section 475) and properly preserved in the trial court record by specific objection (see People v. Nelson, 51 Cal. 4th 198, 223 (2011); People v. Seijas, 36 Cal. 4th 291, 302 (2005); People v. Crittenden, 9 Cal. 4th 83, 126-27 (1994).

Errors relating to the presence of a jury, and how to preserve them for appeal, include:

1. Jury selection errors, including (a) unreasonable or arbitrary time limits on voir dire (Code Civ. Proc., Section 222.5(b)(2)); (b) improper questioning of prospective jurors, i.e., "any question that, as its dominant purpose, attempts to precondition the prospective jurors to a particular result, indoctrinate the jury, or question the prospective jurors concerning the pleadings or the applicable law" (id. Section 222.5(b)(3); see People v. Fierro, 1 Cal. 4th 173, 209 (1991), overruled on another ground by People v. Thomas, 54 Cal. 4th 908, 941 (2012); Fernandez v. Jimenez, 40 Cal. App. 5th 482, 492-93 (2019)); (c) inflammatory comments by prospective jurors (see People v. Martinez, 228 Cal. App. 3d 1456, 1459-67 (1991)); and (d) errors concerning challenges for cause or peremptory challenges (see generally Crittenden, 9 Cal. 4th at 116-18; Alcazar v. Los Angeles Unified School Dist., 29 Cal. App. 5th 86, 99-100 (2018)).

Preserving the error. Errors during voir dire must be preserved through timely and specific objection. See generally People v. McKinnon, 52 Cal. 4th 610, 637-44 (2011). Preconditioning the jury is a form of attorney misconduct; to preserve the error "an objection must have been lodged and the objecting party must also have moved for a mistrial or sought a curative admonition unless the misconduct was so persistent that an admonition would have been inadequate to cure the resulting prejudice." Fernandez, 40 Cal. App. 5th at 492. Note: The prejudicial effect of an error in jury selection will depend on the result at trial, and the issue of jury selection error will therefore likely be decided on a motion for new trial. But an adverse result will not be sufficient by itself to show prejudice. A detailed record of the facts will be required, which means arranging for transcription of the voir dire proceedings and, where necessary, obtaining the services of an experienced jury investigator.

2. An error in jury instructions of sufficient magnitude that "'it seems probable' ... the error 'prejudicially affected the verdict.'" Soule v. General Motors Corp., 8 Cal. 4th 548, 572, 580 (1994).

Preserving the error. An automatic objection is preserved to any instruction given at the request of your opponent or by the court on its own motion. Code Civ. Proc., Section 647; see Bishop v. Hyundai Motor America, 44 Cal. App. 4th 750, 760 (1996). Note, however, that (a) it must be clear from the record who requested the challenged instruction (Regalado v. Callaghan, 3 Cal. App. 5th 582, 592-93 (2016)); (b) jury instructions the appellant requested, agreed or acquiesced to cannot be challenged (Regalado; Hood v. Gonzales, 43 Cal. App. 5th 57, 70 (2019); Bishop at 760); and (c) if the objection is that an instruction is vague or incomplete, a clarifying instruction must have been proposed at trial in order to challenge that instruction on appeal (People v. Livingston, 53 Cal. 4th 1145, 1168-69 (2012)). Note a possible trap for the unwary: Many trial judges will try to persuade all counsel to agree on the record that there are no objections to the instructions. It is best not to agree to such a blanket acceptance of all instructions during the heat of trial as the erroneous nature of some instructions might become clear later while the appeal is being briefed.

3. An inconsistent or ambiguous jury verdict. See Zagami, Inc. v. James A. Crone, Inc., 160 Cal. App. 4th 1083, 1091-92 (2008).

Preserving the error. Record objections to a jury verdict before the jury is discharged. Keener v. Jeld-Wen, Inc., 46 Cal. 4th 247, 263-64 (2009); Little v. Amber Hotel Co., 202 Cal. App. 4th 280, 300-01 (2011).

4. Errors in what or who is allowed into the jury room during deliberations (see People v. Oliver, 196 Cal. App. 3d 423 (1987)); ex parte contact between the judge and a deliberating jury (see People v. Bradford, 154 Cal. App. 4th 1390, 1395 (2007)); errors in responding to jury requests for information during deliberations (see id. at 1413).

Preserving the errors. For each of these errors, make a record of a timely objection. See generally Porterville Citizens for Responsible Hillside Development v. City of Porterville, 157 Cal. App. 4th 885, 912 (2007).

5. Jury misconduct, including:

(a) Agreement to disregard the court's instructions. See Moore v. Preventive Medicine Medical Group, Inc., 178 Cal. App. 3d 728, 740 (1986).

(b) Juror bias that likely influenced the jury's verdict. See People v. Nesler, 16 Cal. 4th 561, 580-83 (1997).

(c) Jurors obtaining information from outside the courtroom. See In re Carpenter, 9 Cal. 4th 634, 647, 653 (1995); People v. Mincey, 2 Cal. 4th 408, 467 (1992).

(d) Jury nullification, i.e., jurors' rejection of evidence or refusal to apply the law in order to send a message or satisfy the jury's sense of fairness. See U.S. v. Thomas, 116 F.3d 606, 614, 617 (2d Cir. 1997).

(e) Juror concealment of bias, including false answers to voir dire questions or failure to disclose relevant information in answer to an inquiry. See Weathers v. Kaiser Found. Hosps., 5 Cal. 3d 98, 110 (1971).

(f) Jurors discussing the subject matter of the trial before the case is submitted to them for decision. See Joyce v. Simi Valley Unified School Dist., 110 Cal. App. 4th 292, 306 (2003).

(g) Juror inattentiveness. See Hasson v. Ford Motor Co., 32 Cal.3d 388, 410-18 (1982), disapproved on another ground in Soule, 8 Cal. 4th at 574, 580.

Preserving the error. Misconduct of the jury generally must be proven by competent evidence, usually in the form of affidavits submitted in support of a motion for new trial. See Code Civ. Proc., Sections 657(2), 658, 659a; Evid. Code, Section 1150; People v. Hutchinson, 71 Cal. 2d 342, 349 (1969) (evidence of jury misconduct limited to "proof of overt conduct, conditions, events, and statements"); Whitlock v. Foster Wheeler, LLC, 160 Cal. App. 4th 149, 160 (2008). Note that if juror misconduct is suspected, consider hiring an experienced jury investigator who can interview jurors to determine if any misconduct occurred.

6. Attorney misconduct in argument to the jury, such as arguing the Reptile Theory. See Regalado, 3 Cal. App. 5th at 598; "The Reptile Theory: A Game-Changing Strategy in Personal Injury Lawsuits" (Feb. 21, 2020) Lexis Legal Advantage ("The Reptile Theory focuses on safety and security issues to subtly encourage jurors to envision themselves in the same situation as a plaintiff. The strategy relies on ... provok[ing] the feeling that if a defendant's actions are allowed to continue, then the community and even the jury itself may be in danger."); see generally Cassim v. Allstate Ins. Co., 33 Cal. 4th 780, 795-96 (2004).

Preserving the error. To raise attorney misconduct on appeal, there must appear in the record a timely objection and request for either a mistrial or admonition to the jury. Cassim, 33 Cal. 4th at 794-95; Regalado, 3 Cal. App. 5th at 598-99.)

7. Allowing the jury to consider inflammatory or irrelevant evidence, or unfounded expert opinion. See Evid. Code, Section 352; Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747, 769, 771-72 (2012).

Preserving the error. Challenging the admissibility of inflammatory or irrelevant evidence requires a timely and specific objection at trial. See, e.g., People v. Kirkpatrick, 7 Cal. 4th 988, 1014 (1994). An expert's opinion should be challenged prior to trial by requesting the trial judge to find as a preliminary fact (Evid. Code, Section 405) that the expert's testimony is inadmissible for lack of an adequate foundation. See Evid. Code, Sections 801-803; see also Sargon, 55 Cal. 4th at 770-72 ["[U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. ... '[T]he expert's opinion may not be based "on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors." ' ... [¶] ... [Under Evidence Code Section 802] the court may inquire into the expert's reasons for an opinion ... [and] examine experts concerning the matter on which they base their opinion before admitting their testimony. ... [¶] ... [A] court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert's reasoning. 'A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.' "].)

8. Asking juries to decide, without expert testimony, issues that are beyond the jurors' common knowledge. See, e.g., Soule, 8 Cal. 4th at 567.

Preserving the error. Objection should be made by motion in limine to preclude the jury from considering evidence and argument concerning any issue beyond the common knowledge of the jurors without the benefit of expert testimony. See Kelly v. New West Federal Savings, 49 Cal. App. 4th 659, 669-70 (1996). If the motion in limine is denied, or there has been no final ruling, the motion in limine should be renewed at trial. See People v. Navarette, 30 Cal. 4th 458, 491 (2003); Christ v. Schwartz, 2 Cal. App. 5th 440, 452-53 (2016). 


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