Lavender

Jurors, like all human beings, are imperfect. It follows that jury deliberations may also be imperfect. A single juror may fail to recollect some bit of testimony. Some jurors may forget or misapply one of the instructions. Others may focus tenaciously but unreasonably on one aspect of the record to the exclusion of the rest. Through the give and take of deliberations, however, the jury’s collective memory and common sense will often correct these types of errors and lead to a result that surpasses in wisdom the understanding of any one person.

In this case, the parties agree that the deliberations were imperfect. Evidence submitted in support of defendants’ motion for new trial revealed that one or more members of the jury “discussed the fact that if the [defendants] were innocent then they should’ve testified.” Evidence submitted in opposition to the motion indicated that the foreperson “immediately admonished that juror that [they] could not consider that issue” and “there was no further mention” of it. The Court of Appeal found — and the parties do not dispute — that the discussion of defendants’ decisions not to testify constituted misconduct that raised a…