California Civil Jury Instructions (CACI) (2017)

5009. Predeliberation Instructions

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5009.Predeliberation Instructions
When you go to the jury room, the first thing you should do is choose a
presiding juror. The presiding juror should see to it that your
discussions are orderly and that everyone has a fair chance to be heard.
It is your duty to talk with one another in the jury room and to
consider the views of all the jurors. Each of you must decide the case
for yourself, but only after you have considered the evidence with the
other members of the jury. Feel free to change your mind if you are
convinced that your position should be different. You should all try to
agree. But do not give up your honest beliefs just because the others
think differently.
Please do not state your opinions too strongly at the beginning of your
deliberations or immediately announce how you plan to vote as it may
interfere with an open discussion. Keep an open mind so that you and
your fellow jurors can easily share ideas about the case.
You should use your common sense and experience in deciding whether
testimony is true and accurate. However, during your deliberations, do
not make any statements or provide any information to other jurors
based on any special training or unique personal experiences that you
may have had related to matters involved in this case. What you may
know or have learned through your training or experience is not a part
of the evidence received in this case.
Sometimes jurors disagree or have questions about the evidence or
about what the witnesses said in their testimony. If that happens, you
may ask to have testimony read back to you [or ask to see any exhibits
admitted into evidence that have not already been provided to you].
Also, jurors may need further explanation about the laws that apply to
the case. If this happens during your discussions, write down your
questions and give them to the [clerk/bailiff/court attendant]. I will talk
with the attorneys before I answer so it may take some time. You should
continue your deliberations while you wait for my answer. I will do my
best to answer them. When you write me a note, do not tell me how you
voted on an issue until I ask for this information in open court.
[At least nine jurors must agree on a verdict. When you have finished
filling out the form, your presiding juror must write the date and sign it
at the bottom and then notify the [bailiff/clerk/court attendant] that you
are ready to present your verdict in the courtroom.]
Your decision must be based on your personal evaluation of the
evidence presented in the case. Each of you may be asked in open court
how you voted on each question.
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While I know you would not do this, I am required to advise you that
you must not base your decision on chance, such as a flip of a coin. If
you decide to award damages, you may not agree in advance to simply
add up the amounts each juror thinks is right and then, without further
deliberations, make the average your verdict.
You may take breaks, but do not discuss this case with anyone,
including each other, until all of you are back in the jury room.
New September 2003; Revised April 2004, October 2004, February 2007,
December 2009, June 2011, June 2013
Directions for Use
The advisory committee recommends that this instruction be read to the jury after
closing arguments and after reading instructions on the substantive law.
Read the sixth paragraph if a general verdict form is to be used. If a special verdict
will be used, give CACI No. 5012, Introduction to Special Verdict Form.
Judges may want to provide each juror with a copy of the verdict form so that the
jurors can use it to keep track of how they vote. Jurors can be instructed that this
copy is for their personal use only and that the presiding juror will be given the
official verdict form to record the jury’s decision. Judges may also want to advise
jurors that they may be polled in open court regarding their individual verdicts.
Delete the reference to reading back testimony if the proceedings are not being
recorded.
Sources and Authority
• Conduct of Jury Deliberations. Code of Civil Procedure section 613.
Further Instructions After Deliberation Begins. Code of Civil Procedure section
614.
• Verdict Requires Three Fourths. Code of Civil Procedure section 618, article I,
section 16, of the California Constitution.
• Juror Misconduct as Grounds for New Trial. Code of Civil Procedure section
657.
• “Chance is the ‘hazard, risk, or the result or issue of uncertain and unknown
conditions or forces.’ Verdicts reached by tossing a coin, drawing lots, or any
other form of gambling are examples of improper chance verdicts. ‘The more
sophisticated device of the quotient verdict is equally improper: The jurors
agree to be bound by an average of their views; each writes the amount he
favors on a slip of paper; the sums are added and divided by 12, and the
resulting “quotient” pursuant to the prior agreement, is accepted as the verdict
without further deliberation or consideration of its fairness.’ ” (Chronakis v.
Windsor (1993) 14 Cal.App.4th 1058, 1064 [18 Cal.Rptr.2d 106], original
italics.)
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• “ ‘[T]here is no impropriety in the jurors making an average of their individual
estimates as to the amount of damages for the purpose of arriving at a basis for
discussion and consideration, nor in adopting such average if it is subsequently
agreed to by the jurors; but to agree beforehand to adopt such average and
abide by the agreement, without further discussion or deliberation, is fatal to the
verdict.’ ” (Chronakis,supra, 14 Cal.App.4th at p. 1066.)
• Jurors should be encouraged to deliberate on the case. (Vomaska v. City of San
Diego (1997) 55 Cal.App.4th 905, 911 [64 Cal.Rptr.2d 492].)
• The jurors may properly be advised of the duty to hear and consider each
other’s arguments with open minds, rather than preventing agreement by
stubbornly sticking to their first impressions. (Cook v. Los Angeles Ry. Corp.
(1939) 13 Cal.2d 591, 594 [91 P.2d 118].)
• “The trial court properly denied the motion for new trial on the ground that [the
plaintiff] did not demonstrate the jury reached a chance or quotient verdict. The
jury agreed on a high and a low figure and, before calculating an average, they
further agreed to adjust downward the high figure and to adjust upward the low
figure. There is no evidence that this average was adopted without further
consideration or that the jury agreed at any time to adopt an average and abide
by the agreement without further discussion or deliberation.” (Lara v. Nevitt
(2004) 123 Cal.App.4th 454, 462–463 [19 Cal.Rptr.3d 865].)
• “It is not improper for a juror, regardless of his or her educational or
employment background, to express an opinion on a technical subject, so long
as the opinion is based on the evidence at trial. Jurors’ views of the evidence,
moreover, are necessarily informed by their life experiences, including their
education and professional work. A juror, however, should not discuss an
opinion explicitly based on specialized information obtained from outside
sources. Such injection of external information in the form of a juror’s own
claim to expertise or specialized knowledge of a matter at issue is misconduct.”
(In re Malone (1996) 12 Cal.4th 935, 963 [50 Cal.Rptr.2d 281, 911 P.2d 468].)
• “[The juror]’s comments to the jury, in the nature of an expert opinion
concerning the placement of crossing gate ‘sensors,’ their operation, and the
consequent reason why gates had not been or could not be installed at the J-
crossing, constituted misconduct . . . . Speaking with the authority of a
professional transportation consultant, [the juror] interjected the subject of
‘sensors,’ on which there had been no evidence at trial.” (McDonald v. S. Pac.
Transp. Co. (1999) 71 Cal.App.4th 256, 263–264 [83 Cal.Rptr.2d 734].)
• “Jurors cannot, without violation of their oath, receive or communicate to
fellow jurors information from sources outside the evidence in the case. ‘[It] is
misconduct for a juror during the trial to discuss the matter under investigation
outside the court or to receive any information on the subject of the litigation
except in open court and in the manner provided by law. Such misconduct
unless shown by the prevailing party to have been harmless will invalidate the
verdict.’ ” (Smith v. Covell (1980) 100 Cal.App.3d 947, 952–953 [161 Cal.Rptr.
CONCLUDING INSTRUCTIONS CACI No. 5009
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377], original italics, internal citations omitted.)
• “ ‘All the jurors, including those with relevant personal backgrounds, were
entitled to consider this evidence and express opinions regarding it. “[I]t is an
impossible standard to require . . . [the jury] to be a laboratory, completely
sterilized and freed from any external factors.” [Citation.] “It is ‘virtually
impossible to shield jurors from every contact or influence that might
theoretically affect their vote.’ ” [Citation.] A juror may not express opinions
based on asserted personal expertise that is different from or contrary to the law
as the trial court stated it or to the evidence, but if we allow jurors with
specialized knowledge to sit on a jury, and we do, we must allow those jurors
to use their experience in evaluating and interpreting that evidence. Moreover,
during the give and take of deliberations, it is virtually impossible to divorce
completely one’s background from one’s analysis of the evidence. We cannot
demand that jurors, especially lay jurors not versed in the subtle distinctions
that attorneys draw, never refer to their background during deliberations. “Jurors
are not automatons. They are imbued with human frailties as well as virtues.”
[Citation.]’ ” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 77 [133
Cal.Rptr.3d 548, 264 P.3d 336], original italics.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 318, 321, 380
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 15-A, Jury
Deliberations: General Considerations, ¶ 15:15 et seq. (The Rutter Group)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.01 (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions,
§ 326.32[3] (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326A, Jury Verdicts, § 326A.14
(Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 17, Dealing With the Jury, 17.33
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 5.129, 14.8,
14.32, 14.50, 14.53, 14.59, 15.6, 15.21 (Cal CJER 2010)
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