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Saakyan v. Modern Auto10/31/2002
(Ibid.) Moreover, the jury was utilizing the keys to determine the truth of the defendant's testimony. (Ibid.) The jury was entitled to re-examine the evidence using a slightly different context. (People v. Bogle, supra, 41 Cal.App.4th at p. 781.)
Here, as in Cumpian, during trial, verbal and demonstrative evidence was admitted concerning Rosenbluth's theory of causation, namely that the improper wheel, improperly mounted, came in contact with the fender. The buck was received into evidence. Rosenbluth used it to demonstrate how a "witness mark" was made on the fender well. The declarations demonstrate that the jury replicated Rosenbluth's testimony. The reenactment of Rosenbluth's testimony does not constitute receipt of evidence out of court, and did not exceed the scope and purview of Rosenbluth's evidence, but was merely a reexamination of Rosenbluth's demonstration using only proffered evidence. (People v. Cumpian, supra, 1 Cal.App.4th at pp. 313-316.)
Defendant points to two ways in which it believes the jury's conduct differed from Rosenbluth's evidence. First, noting that the jury exercised the suspension much more than Rosenbluth had, defendant suggests that such conduct rose to the level of new and different experimentation, which, because it was performed outside the presence of the parties, precluded defense cross-examination.
During his direct examination, Rosenbluth exercised the buck's suspension "just a few clicks," and still, the BMW tire came close to the fender. After noting he had not fully exercised the suspension, Rosenbluth testified "we're going to see a witness mark that goes all the way around to where this tire was making contact with the fender well while the vehicle was in motion." (Italics added.) Hence, the tire would have come close to the fender regardless of whether the jury exercised the suspension a little, as Rosenbluth had, or maximally, as the jury had. In exercising the suspension as it did, the jury did nothing more than to re-examine the evidence using a slightly different context, as it was permitted to do (People v. Bogle, supra, 41 Cal.App.4th at p. 781) to confirm Rosenbluth's prediction, and so the fact it compressed the buck more is not misconduct. (Id. at pp. 779- 781.)
Next, defendant argues when the jury rotated the wheel, it created a new mark, which new evidence defendant was unable to rebut. Rotating the wheel was absolutely within the purview and scope of the testimonial evidence. (People v. Cumpian, supra, 1 Cal.App.4th at p. 315; Higgins v. L.A. Gas & Electric Co., supra, 159 Cal. at p. 657.) More important, Rosenbluth testified that rotating the tire would create a "witness mark." Just as in Bogle, when the jury here rotated the tire and made a mark on the fender well, it did not invade a new field, but remained within the lines of offered evidence (People v. Bogle, supra, 41 Cal.App.4th at p. 779), and so the jury used the introduced evidence "to come to its own conclusion concerning the true facts." (Id. at p. 780.)
Stated otherwise, as approved in Bogle, causation was at issue here, and the jury tested Rosenbluth's theory of causation by using his own evidence, which evidence had been admitted into evidence without objection, in an attempt to resolve that issue. (People v. Bogle, supra, 41 Cal.App.4th at p. 780.)
Defendant's suggestion to the contrary, it has long been settled that "not every experiment constitutes jury misconduct." (People v. Cumpian, supra, 1 Cal.App.4th at p. 316.) " `[Juries] may carry out experiments within the lines of offered evidence.' " (Id. at p. 315.) " ` urors must be given enough latitude in their deliberations to permit them to use common experi
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