Bandana Trading Co., Inc. v. Quality Infusion Care, Inc.

Jurors are routinely admonished not to form or express an opinion on the case until it is finally submitted to them. However, jurors often form opinions, hopefully tentative, concerning the credibility of witnesses as they are listening to them. This is a natural response consistent with processing information. With such a tentative opinion in mind, a juror should not demonstrably agree with a statement of law argued by counsel premised upon the credibility of a witness. Depending on how aggravated such conduct may be, it may rise to the level of prejudicial misconduct. Here, we conclude that there was no prejudicial misconduct.

During argument, counsel for respondent told the jury it could reject the entire testimony of a witness if it determined that the witness had been willfully false in one material aspect thereof. (See, e.g., BAJI No. 2.22.) The juror expressed her agreement by clapping her hands. It is not misconduct for a juror to agree with a black-letter principle of law. Jurors are supposed to accept the law as given to them by the trial court. But, given the context, it was apparent that the juror tentatively believed that one or more of appellant’s witnesses…