Legal News and Appellate Tips

Do not forget to have the jury make all the required findings. Once the jury is discharged, as happened in People v. Jones (D1d5 Apr. 4, 2023) No. A163558, the court loses control of the jury, and so the jury cannot be reconvened.

The prosecutor in Jones had charged an enhancement based on a prior serious felony. The jury returned a guilty verdict, but did not make a finding that the defendant had committed a prior serious felony before the trial judge thanked and released the jurors from their duties.

By the time the jurors were brought back in, four hours had passed.

A jury that has been released may be reconvened, but only if the jury has remained in the court’s control. The court did note that the jurors had not left the courthouse. But the record was silent whether the jurors had abided by the admonitions (from which they had been released). “Given such a paucity of evidence, we cannot conclude that the jury remained within the court's control.”

The Upshot: The operative statute in Jones is Penal Code section 1164. There does not appear to be an analogous civil statute, but the rule is likely to be the same or similar. So in your next jury trial, have a checklist of all the findings the jury needs to make, and do not let the judge discharge the jury until its work is done.

A good practice is to have thorough verdict forms prepared before beginning trial.

One important case that counsel preparing for a trial need to keep ready to hand is People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which prohibits parties from offering otherwise hearsay evidence through their experts.

That is what the plaintiff tried to do in the catastrophic injury case of Townsend v. Olivo (D4d2 Jun. 15, 2021) no. E073183 (non-pub.). The plaintiff suffered injuries that would lead to amputation of his leg. His expert witness testified to the $1.1 million in future medical costs. But the expert admitted he had no knowledge relating to these future procedures and prosthetic devices. He had spoken with others about the costs, however, and so testified about that.

The Fourth District Court of Appeal held this was error. The expert’s testimony about future medical expenses was inadmissible hearsay. The foundational facts were outside of the expert’s personal knowledge, and no other witness supplied them, so no hearsay exception applies.