A Juror Says She Decided on Day Three. Is That a Mistrial?
When the Larry Millete verdict came in on July 9, the jurors talked. CBS 8 interviewed one on camera. NBC 7 quoted four of them by name. That is normal now after a big California trial.
Nothing reported in that case suggests any juror decided early. But these interviews keep happening, and sooner or later one of them contains a sentence that sounds like misconduct. Say a juror mentions her mind was made up by the third day of testimony. Judges tell jurors not to do that. So what would happen?
Short version: a juror who says that has probably broken a real rule, and that still may not be enough to undo anything.
Those are two questions, and people run them together. Did a juror do something wrong? And can a court be shown it happened, using proof courts accept? A comment to a news camera after the verdict answers the first and is close to useless on the second.
What the judge actually tells jurors
At every break, in every jury trial in California, the judge repeats some version of the same instruction. Do not talk about the case. Do not research it. Do not make up your mind until you have heard everything and gone into the jury room to discuss it with the other jurors.
That last part is not a courtesy. It comes from a statute, one for criminal trials and one for civil. A juror who decides on day three and stops listening has violated it.
The statutes and instructions, if you want the citations
Criminal: Penal Code section 1122(b) requires the court, at each adjournment before the case is submitted, to admonish jurors that it is their duty not to “form or express any opinion about the case until the cause is finally submitted to them.” CALCRIM Nos. 101 and 222 deliver it in practice.
Civil: Code of Civil Procedure section 611 imposes the same duty whenever the jury separates, and it now expressly reaches electronic and wireless communication. CACI No. 100 tells civil jurors to keep an open mind and decide nothing until deliberations.
The duty is identical on both sides of the courthouse, which is why the cases cite across the civil and criminal line freely.
Yes, deciding early is misconduct
Courts have a name for it. Prejudgment. It counts as serious misconduct, not a technicality, because the premise of a jury trial is that nobody has decided anything until the evidence is finished.
The clearest California example: a juror told another juror, during a break in week two of a five-week trial, that she had made up her mind and was not going to listen to the rest of it. The judge ordered a new trial. The Court of Appeal agreed, and said the statement needed no interpretation. It meant what it said.
The cases
Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778 is the leading decision. The juror’s remark was: “I made up my mind already. I’m not going to listen to the rest of the stupid argument.” The Court of Appeal affirmed the new trial order, describing it as a flat, unadorned statement of prejudgment that required neither interpretation nor the drawing of inferences.
In re Hitchings (1993) 6 Cal.4th 97 holds that violating the Penal Code section 1122 duty is serious misconduct, and that when a juror violates the oath, doubt is cast on that juror’s ability to perform the rest of the job.
People v. Brown (1976) 61 Cal.App.3d 476 reversed a conviction where a juror expressed a fixed view of guilt with two and a half days of the People’s case still to come. That juror ultimately voted to acquit on eight of seventeen counts. It did not save the verdict.
On the civil side, Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356 tied the prohibition directly to Code of Civil Procedure section 611.
If it is proven, the party who lost is presumed to have been harmed
This is the part that sounds like a winning hand. Once misconduct is established, the law assumes harm and the other side has to show there was none. Same rule in civil and criminal cases.
In a criminal case, if that showing fails, the strength of the evidence does not rescue the verdict. A juror who was actually biased is a broken part of the machine, and the conviction goes no matter how obvious guilt looked. Civil is different, because only nine of twelve jurors need to agree. If the vote was 9 to 3, pulling one biased juror out of the majority could have changed the result, and that alone can be enough.
How the presumption works, and how it gets beaten
The presumption of prejudice applies equally in civil and criminal cases. Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388; TRC Operating Co. v. Chevron USA, Inc. (2024) 102 Cal.App.5th 1040, review granted on a separate question under Code of Civil Procedure section 660 (S286233).
It is rebutted either by an affirmative evidentiary showing that no prejudice exists, or by the reviewing court’s own examination of the entire record. Hasson, supra, 32 Cal.3d 388. The controlling question is whether there is a substantial likelihood that the juror was actually biased. In re Carpenter (1995) 9 Cal.4th 634.
People v. Weatherton (2014) 59 Cal.4th 589 reversed a capital conviction on prejudgment, and repeated that a biased adjudicator is one of the few structural defects compelling reversal without harmless error analysis.
The 9 to 3 point comes from Grobeson, applying Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98: where the verdict rests on a bare nine, disqualifying any one of the majority could have produced a different outcome.
Standard of review runs in two directions. A grant of a new trial gets deference and is reviewed for abuse of discretion. A denial gets independent review on the prejudice question. People v. Ault (2004) 33 Cal.4th 1250.
The catch: a court is not allowed to hear most of this
Here is where these claims fall apart, and it surprises people every time.
A verdict cannot be attacked by asking jurors what was going on inside their heads. What a juror thought, how she weighed something, when she became convinced, what she would have done if the instructions had been clearer, all off limits. What can be proven is what a juror did or said out loud, because someone else was there to corroborate it.
Look again at the case where the new trial was granted. What got in was proof of what the juror said to another juror mid-trial. What was kept out was the juror’s own written account afterward. Timing and audience were the whole ballgame.
Which means the sentence “I made up my mind on day three,” said to a reporter after the verdict, is the wrong version of the right fact.
Evidence Code section 1150 and the line it draws
Section 1150(a) permits evidence of “statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly,” and bars evidence of “the mental processes by which” the verdict was determined.
People v. Hutchinson (1969) 71 Cal.2d 342 drew the operative distinction: overt acts, open to sight and hearing and therefore subject to corroboration, are provable; the subjective reasoning of an individual juror, which can be neither corroborated nor disproved, is not. People v. Steele (2002) 27 Cal.4th 1230 excluded jurors’ post-verdict accounts of what they understood and what they would have done differently.
Grobeson carved out room for prejudgment specifically, reasoning that a statement disclosing bias is not merely a description of a mental state, because the prejudgment is itself the improper influence on the verdict. See also Guernsey v. City of Salinas (2018) 30 Cal.App.5th 269, 284. But note what Grobeson actually did: it admitted evidence of the mid-trial remark to a fellow juror and excluded the juror’s own post-trial declaration.
And there is an ambiguity problem. In People v. Allen & Johnson (2011) 53 Cal.4th 60, reports that a juror said his mind was made up before deliberations did not establish misconduct to a demonstrable reality, where the juror participated in deliberations and was still undecided days in. A juror who says afterward that she was persuaded early may be describing when the evidence landed. A juror who announces mid-trial that she has stopped listening is doing something else. On television those sound the same.
Why the interview itself proves nothing
Even setting aside the rule above, there is a plainer obstacle. A news clip is not evidence. Nobody was under oath. Nothing was signed. A judge cannot grant a new trial on it, and generally will not even hold a hearing on it.
To turn a televised comment into a legal claim, somebody has to find that juror, ask her what she said out loud and to whom, and get her to sign a declaration under penalty of perjury. If she declines, and jurors frequently do, the claim ends there.
The hearsay bar and how lawyers get past it
A trial court cannot reach the merits of a new trial motion based on juror misconduct without an admissible juror declaration or affidavit. People v. Bryant (2011) 191 Cal.App.4th 1457, where the proffered declaration was not certified under penalty of perjury, did not state the place of execution, and did not reference California law. An investigator’s representation of what a juror said is hearsay and does not count. People v. Hayes (1999) 21 Cal.4th 1211. A court ordinarily does not abuse its discretion by declining an evidentiary hearing where the proffer is hearsay. People v. Dykes (2009) 46 Cal.4th 731.
Getting to the juror is its own fight. In criminal cases, juror names, addresses, and phone numbers are sealed the moment the verdict is recorded, and access requires a petition under Code of Civil Procedure sections 206 and 237 supported by a prima facie showing of good cause: a reasonable belief that misconduct occurred, diligent efforts to reach jurors by other means, and a genuine need for further investigation. Speculative or conclusory allegations fail. People v. Munoz (2019) 31 Cal.App.5th 143. Any juror may object, and an objection defeats disclosure. People v. Russell (2017) 9 Cal.App.5th 1050.
In civil cases the automatic seal does not apply, Erickson v. Superior Court (1997) 55 Cal.App.4th 755, but good cause and a showing of diligence still do. Eng v. Brown (2018) 21 Cal.App.5th 675.
If the time for a new trial motion has run, the criminal vehicle is habeas corpus, supported by competent juror declarations. In re Stankewitz (1985) 40 Cal.3d 391; Hayes, supra, 21 Cal.4th 1211.
What it comes down to
The interview is not the claim. It is a tip that there might be one. Whether a claim exists depends on something that probably happened in a hallway weeks earlier, in front of one other juror, which nobody wrote down and which that juror may or may not be willing to swear to now.
That gap is not an accident. The same rule that makes this interview hard to use is the rule that keeps every losing party from putting the jury on trial after the fact.
If you are the lawyer holding this problem: the clocks are short and mostly unforgiving. Criminal, the ground is Penal Code section 1181(3), and section 1182 is what requires the motion to be made and determined before judgment. Civil, the notice of intention under Code of Civil Procedure section 659 is due before entry of judgment, or within 15 days of notice of entry, or within 180 days after entry of judgment, whichever comes first. It cannot be extended by court order, stipulation, or the mail-service rule. Supporting affidavits follow within 10 days under section 659a, and the court’s power to rule expires 75 days out under section 660. When you reach the juror, do not ask when she decided. Ask what she said, to whom, and when.
Last reviewed: August 6, 2026
Statutes checked against the current California code on this date, and every case citation checked for accuracy.
This article addresses California law and is current as of August 2026. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Statutes, rules of court, and local practice change, and how any rule applies depends on the facts of a particular case.