Garcia

It has been established under California law for more than a century that when a trial court authorizes a jury to view the scene of an alleged crime during a criminal trial, the defendant and his or her counsel have a right to be present during the jury view. (People v. Bush (1886) 68 Cal. 623, 631-634 [ 10 P. 169 ].) The issue presented by this case is whether, when a jury has visited the crime scene during the presentation of evidence at trial and, after jury deliberations have begun, requests and is permitted to revisit the crime scene, the defendant and his or her counsel similarly have the right to be present at the jury’s return visit to the crime scene.

The trial court in this case ruled that defendant and his counsel have no such right and authorized the jury to revisit the crime scene while barring defendant and his counsel from being present during the return visit. The Court of Appeal, in a two-to-one decision, upheld the trial court’s ruling. In reaching its conclusion, the majority in the Court of Appeal analogized a jury’s revisit to the crime scene to a jury’s reexamination of an exhibit in the jury room during deliberations, at which a defendant and…

I concur in the majority’s initial holding that the trial court erred in refusing to permit a defense presence at the jury revisit of the crime scene. Generally, given the potential for confhsing the jurors or exposing them to new or misleading evidence, the defendant and his or her counsel should be allowed to accompany the jury to visit or even revisit a crime scene. But only sheer speculation supports the majority’s additional holding that the error was prejudicial and requires overturning defendant’s murder conviction. As I explain, the evidence against defendant was extremely strong—and there were no other suspects. Only defendant had the proven motive, means, and opportunity to kill Deborah Gregg. Equally important, defendant fails to show how he or his counsel could have done anything significant to help the defense obtain a more favorable verdict had they been present at the jury revisit. The initial jury visit occurred nearly a year and a half after Gregg’s murder, and even defense counsel admitted it was impossible satisfactorily to reconstruct the scene.

No trials are perfect—evidentiary or procedural errors are bound to occur. But the California Constitution requires…

It has been established under California law for more than a century that when a trial court authorizes a jury to view the scene of an alleged crime during a criminal trial, the defendant and his or her counsel have a right to be present during the jury view. ( People v. Bush (1886) 68 Cal. 623, 631-634 , 10 P. 169 .) The issue presented by this case is whether, when a jury has visited the crime scene during the presentation of evidence at trial and, after jury deliberations have begun, requests and is permitted to revisit the crime scene, the defendant and his or her counsel similarly have the right to be present at the jury's return visit to the crime scene.

The trial court in this case ruled that defendant and his counsel have no such right and authorized the jury to revisit the crime scene while barring defendant and his counsel from being present during the return visit. The Court of Appeal, in a 2-to-1 decision, upheld the trial court's ruling. In reaching its conclusion, the majority in the Court of Appeal analogized a jury's revisit to the crime scene to a jury's reexamination of an exhibit in the jury room during deliberations, at which a defendant and…