Experiment conducted by a juror during deliberations to illustrate how an innocent person responds to a fabricated allegation of sexual misconduct was juror misconduct requiring reversal. While the jury was deliberating in Wismer’s trial for sex crimes against children, one juror (of Asian descent) conducted an experiment to persuade others that Wismer’s reaction to accusations lodged against him in a pretext call were indicative of guilt. She accused a Hispanic juror of slapping her butt and telling her that “he wanted to put his Mexican burrito in my chicken fried rice.” The jury considered the Hispanic juror’s reaction in reaching a guilty verdict. When the experiment later came to light, the defense moved for a new trial, which the trial court denied. Wismer appealed. Held: Reversed. The jury was instructed with CALCRIM No. 201 that they should not do independent research or “conduct any tests or experiments.” However, the actual law “is less categorical.” In People v. Collins (2010) 49 Cal.4th 175 the court explained “[n]ot every jury experiment constitutes misconduct. Improper experiments are those that allow the jury to discover new evidence by delving into areas not examined during trial.” The juror’s false accusation falls into the new evidence category and for that reason qualifies as misconduct. While jurors are permitted to “use common experiences and illustrations in reaching their verdicts” (People v. Cumpian (1991) 1 Cal.App.4th 307, 316), the juror experiment in this case went beyond that “by providing a new concrete standard, observable by every juror, as to how an innocent person responds to a fabricated charge of sexual misconduct.” Juror misconduct carries with it a presumption of prejudice. The People failed to rebut that presumption and demonstrate that the misconduct did not affect the jury’s decision. The experiment was designed to change the mind of a holdout juror, and it worked. Reversal is required. [Editor’s Note: For the benefit of the trial court on retrial, the court also discussed two particular instances where the trail court improperly excluded testimony that would have challenged the credibility of the two complaining witnesses.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D068743.PDF