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Saakyan v. Modern Auto10/31/2002
stating, "Defendant contends that when the jurors `experimented' with the buck of the car, that became jury misconduct, and that same type of `experiment' was not done with the benefit of expert testimony, attorneys' input or direction of the Court. [ ] Plaintiffs contend that no jury misconduct took place. [ ] After considering the moving papers and hearing oral argument, the Court determines that an `experiment' did not take place, but was part of the deliberations of the jury of an admitted exhibit as reflected in the notes of the official court reporter."
2. Law.
As our Supreme Court declared, "It is a fundamental rule that all evidence shall be taken in open court and that each party to a controversy shall have knowledge of, and thus be enabled to meet and answer, any evidence brought against him. It is this fundamental rule which is to govern the use of . . . exhibits by the jury. They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter. They may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain." (Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 656-657, italics added.)
In People v. Cumpian (1991) 1 Cal.App.4th 307, members of the jury attempted to replicate oral testimony by placing a duffel bag over their torsos in a manner similar to that described in testimony. They then removed the bag to determine the ease and length of time it would take to be removed in an effort to ascertain how easy that act might have been for the accused. (Id. at p. 311.) Such conduct, although experimentation, was held not to be misconduct in receiving extrinsic evidence or subjecting the jury to outside influence because there had been plenty of testimony about the manner in which the defendant held the bag and the bag's position; the bag itself was received into evidence; a witness demonstrated how the bag was held; and the jury had strapped the duffel " ` n a fashion similar to that described by the witnesses. . . .' " (Id. at pp. 313-314.) Because the jury's use of the exhibit did not invade "new fields" and did not exceed the scope and purview of the evidence, it was held not to be misconduct. (Id. at p. 315.)
In People v. Bogle (1995) 41 Cal.App.4th 770, the defendant had been convicted of the murder of a couple with whom he lived. During trial, the prosecution presented evidence of the couple's safe, found in the defendant's room. The trial court admitted into evidence the defendant's key, about which the defendant had testified. Defendant did not say any of the keys opened the safe. (Id. at p. 777.) During deliberations, the jury tested the keys and found one worked. The defendant moved for a mistrial arguing the jury's discovery was new evidence, which evidence he had no opportunity to rebut. (Id. at p. 778.) The Bogle court affirmed the trial court's denial of the mistrial motion explaining, " alpation of the safe and the keys was `within the lines of offered evidence' [citation]" (id. at p. 779) and "did not invade a new field" (id. at p. 780), but "used the evidence at hand to come to its own conclusion concerning the true facts." (Ibid.) The defendant's access to the safe was at issue in the trial, and trying the keys in the safe was an attempt to resolve that issue.
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