# Ballard v. Uribe

> California Supreme Court · April 3, 1986 · 41 Cal. 3d 564

URL: https://www.frixlaw.com/law-library/cases/9614438

## Case

- **Full name:** PERCY BALLARD, Plaintiff and Appellant, v. FRANK URIBE, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** April 3, 1986
- **Citations:** 41 Cal. 3d 564; 224 Cal. Rptr. 664; 715 P.2d 624; 1986 Cal. LEXIS 328
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Grodin, Mosk, Lucas, Bird
- **Cited by:** 574 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

MOSK, J.
I concur generally in the majority opinion. However, I would not be as equivocal as the majority in its treatment of the effort to impeach the jury verdict. The plaintiff’s challenge should not be rejected merely because of an inadequate record: it should be forthrightly rebuffed on principle.
I must express my apprehension at an incipient trend, that of losing parties attempting to impeach jury verdicts. We see this in numerous appeals and petitions for review based on juror affidavits. Giving such appeals and petitions any credence prevents the finality of judgments, places additional burdens on the judicial process, and contributes to disenchantment with the tort system.
Most juror affidavits, demonstrably so in this case, 1 delve into the subjective concerns of the jurors during their deliberations. When deference is given to such affidavits, encouragement is given to opposing counsel in future cases to engage in postverdict competition to obtain juror affidavits revealing discussions that took place behind the closed doors of the deliberation room. Generally the party with the most resources will win that contest. If affidavits purportedly relating jury discussions are permissible, in the interest of accuracy we may as well install recording devices in jury rooms.
In most cases it is not difficult for counsel to persuade a juror to sign a law-office-prepared affidavit. Human nature being what it is, dissenting jurors in a case that ended in a nine-to-three verdict may be eager to upset a result to which they were stubbornly opposed. (Cf. Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108 [ 95 Cal.Rptr. 516 , 485 P.2d 1132 ].) And even some assenting jurors who were not firmly committed to their vote but were persuaded by the majority may wish to assuage a feeling of remorse, or merely desire to placate a disappointed losing litigant.
Justice is not served by tiresome replays of jury deliberations. I would adhere strictly to the basic rule, but not necessarily all the dicta, of People *576 v. Hutchinson (1969) 71 Cal.2d 342 [ 78 Cal.Rptr. 196 , 455 P.2d 132 ], in which Chief Justice Tray nor declared (at p. 351): “We therefore hold that jurors are competent witnesses to prove objective facts to impeach a verdict under section 1150 of the Evidence Code.” (Italics added.) The objective fact in that case was the intrusion of the bailiff into jury deliberations; it takes little analysis to establish the impropriety of that conduct.
Similarly, in People v. Valles (1979) 24 Cal.3d 121 [ 154 Cal.Rptr. 543 , 593 P.2d 240 , 15 A.L.R.4th 1116 ], an alternate juror was permitted to sit in with the 12 deliberating jurors—again an objective fact. In People v. Honeycutt (1977) 20 Cal.3d 150 [ 141 Cal.Rptr. 698 , 570 P.2d 1050 ], the jury foreman contacted an outside attorney for advice on the law—an objective fact. In Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 410 [ 185 Cal.Rptr. 654 , 650 P.2d 1171 ], it was asserted that a juror was reading a novel during the taking of testimony—an objective fact. In Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 959 [ 182 Cal.Rptr. 176 ], a juror separated himself from the others, sat in an anteroom and did not participate in discussions—an objective fact. In Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356, 363 [ 97 Cal.Rptr. 589 ], a malpractice case, a juror did not reveal the objective fact that he was a dentist.
In re Stankewitz (1985) 40 Cal.3d 391 [ 220 Cal.Rptr. 382 , 708 P.2d 1260 ], is consistent with my views. Instruction on the law by the offending juror in that case amounted to an overt usurpation of the function of the court, and plainly constituted “as much an objective fact as a juror’s reading of a novel during the taking of testimony [citation], or a juror’s consultation with an outside attorney for advice on the law applicable to the case [citation].” (Id. at p. 398.)
On the other hand, the views expressed by individual jurors on the nature and extent of injuries, compensation for loss of consortium, and value of pain and suffering, are necessarily subjective. There is no dictionary or medical definition of the value in dollars and cents of pain and suffering. Inevitably the background and experience of the jurors will influence their reduction to figures of that which is not precisely evaluated by the presentation of the parties or the instructions of the trial judge.
The affidavits at issue in this case do not require a finding of jury misconduct. There is nothing related in these affidavits that does not occur in countless jury trials every day. It is inevitable that during deliberations tempers will flare and loose remarks or hyperbole will be uttered. I am confident it is not uncommon for a juror or jurors to express ill-considered disagreement with the law recited by the judge. (Osterman, Law Must Re *577 spect Consciences (1986) 72 A.B.A. J. 36 .) Indeed, Justice Kaus, in his separate opinion in People v. Dillon (1983) 34 Cal.3d 441, 491 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ], argued for recognition of what he described as the “power of a jury to nullify what it considers an unjust law.” Dillon was a dramatic example of jurors beseeching the court for the right to disregard the strict mandate of the instructions. We ultimately agreed with the jurors on the facts of that case.
Those who seek to probe into the deliberations and subjective beliefs of jurors fail to fully appreciate the history and role of the jury in Anglo-American jurisprudence. As Justice Holmes reminded us, juries were originally “an inquest of the neighbors most likely to know about a disputed matter of fact. They spoke from their own knowledge . . . .” (Holmes, The Common Law (1963) p. 207.) Lord Coke described jurors as chancellors. In modern times we expect juries to know none of the facts prior to trial and to receive instruction on the law from the judge, but as an experienced trial judge has pointed out, “Traditionally juries are the device by which the rigor of the law is modified . . . .” (Judge Charles E. Wyzanski, Jr., Whereas: A Judge’s Premises (1965) p. 12.) A learned commentator has expressed “esteem for the kind of folk wisdom which juries are supposed to represent. ” (John P. Frank, Justice Daniel Dissenting (1963) p. 292.)
A jury has also been frequently described as “the conscience of the community.” (United States v. Spock (1st Cir. 1969) 416 F.2d 165, 182 .) In addition, courts have long recognized that “in our heterogeneous society jurors will inevitably belong to diverse and often overlapping groups defined by race, religion, ethnic or national origin, sex, age, education, occupation, economic condition, place of residence, and political affiliation” (People v. Wheeler (1978) 22 Cal.3d 258, 266 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ]). The very purpose of the right to trial by a jury drawn from a representative cross-section of the community “is to achieve an overall impartiality by allowing the interaction of the diverse beliefs and values the jurors bring from their group experiences.” (Id., at p. 276.)
It would be a grave disservice to the integrity of the jury system and to the finality of judgments if we were to encourage probing into the subjective reasons behind the unanimous verdict in the case at bar. The affidavits were filed in connection with the motion for a new trial on damages because counsel erroneously believed a reviewing court can properly probe into jury discussions and in that manner ascertain the subjective concerns of jurors. Under that theory juries will be confined to the straitjacket of judges’ often arcane instructions, unable ever to modify “the rigor of the law” or express the “folk wisdom” and “conscience of the community.” What is worse, *578 traditional jury secrecy will be at an end. Such a result would be regressive and counterproductive to the orderly and effective administration of justice.
LUCAS, J.
Although I continue to believe that In re Stankewitz (1985) 40 Cal.3d 391 [ 220 Cal.Rptr. 382 , 708 P.2d 1260 ], was incorrectly decided (see id.., at p. 403 [dis. opn.]), in all other respects I concur with the concurring opinion of Justice Mosk. No jury misconduct occurred in this case.
The affidavits purported to relate discussions during jury deliberations on the subject of damages for pain and suffering and loss of consortium.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9614438. Public record. Not legal advice.