People v. Wismer
10 Cal. App. 5th 1328
Cal. Ct. App.2017Background
- Defendant John Wismer was convicted of multiple sexual offenses against two girls (ages 9 and 13) based largely on the victims' credibility; physical/DNA evidence was inconclusive.
- Police arranged a recorded pretext call in which the victims' father accused Wismer; the call produced no admission but jurors repeatedly replayed it during deliberations.
- The jury foreperson (Juror No. 8) conducted an in-room "experiment": she falsely accused a Hispanic juror of sexual misconduct using racially charged language to demonstrate how an innocent person would react; the accused juror's reaction was not trial evidence.
- After verdict, Juror No. 8 admitted the in-room staged accusation; defense moved for an evidentiary hearing and new trial based on juror misconduct, which the trial court denied.
- The Court of Appeal found the juror's staged accusation constituted new evidence generated in deliberations, prejudicial juror misconduct requiring reversal; the court also found certain trial evidentiary exclusions (witness Colwell's specific-act testimony) were abused on prejudice/352 grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether juror's in-room staged false accusation and demonstration constituted impermissible juror "experiment"/misconduct | The People conceded the event occurred but argued it was a permissible hypothetical or further evaluation of the evidence, not misconduct | Defense argued the staged accusation generated new, untested evidence (the juror's reaction) that deprived defendant of confrontation and rebuttal and influenced a holdout juror | Court held juror conduct produced new evidence outside the trial record; it was prejudicial juror misconduct requiring reversal |
| Standard for when a jury "experiment" is improper | People argued juries may use common experience and illustrations in deliberations | Defense argued experiments that create evidence not presented at trial are improper because parties cannot confront or rebut them | Court reiterated Collins: permissible to reweigh trial evidence; impermissible to generate new evidence not presented at trial; applied that rule here |
| Whether trial court abused discretion excluding specific-instance testimony of martial-arts instructor (Colwell) about a prior lie by complainant I.S. | People argued the 2011 incident involved joking, lacked moral turpitude, risked collateral trial-within-a-trial and low probative value | Defense argued the incident showed I.S. fabricated a serious lie, was highly probative of credibility, and would not unduly consume time | Court held exclusion under Evidence Code §352 was an abuse of discretion; Colwell should have been allowed to testify about the specific incident |
| Whether trial court properly limited testimony of school employee (Ely) about false bullying claim and mother's conduct | People argued Ely's specific-act opinions (e.g., orchestrated suicide attempt) lacked foundation and risked collateral mini-trial and prejudice | Defense sought to impeach complainant A.S. and mother with specific incidents and investigative findings | Court upheld exclusion of speculation about orchestration of suicide attempt but said Ely could testify about the school's finding that A.S.'s bullying claim was unfounded |
Key Cases Cited
- People v. Collins, 49 Cal.4th 175 (2010) (distinguishes permissible jury reexamination of admitted evidence from impermissible jury experiments that generate new evidence)
- People v. Bogle, 41 Cal.App.4th 770 (1995) (discusses limits on jury experiments and new evidence)
- People v. Honeycutt, 20 Cal.3d 150 (1977) (prejudice from juror misconduct is presumed; prosecution must rebut)
- People v. Hedgecock, 51 Cal.3d 395 (1990) (trial court discretion to hold evidentiary hearing on juror misconduct claims)
- Higgins v. Los Angeles Gas & Elec. Co., 159 Cal. 651 (1911) (jury experiments improper when they produce evidence that parties cannot meet or explain)
- People v. Cumpian, 1 Cal.App.4th 307 (1991) (jurors may use common experiences and illustrations in deliberations)
- People v. Thompson, 49 Cal.4th 79 (2010) (lay opinion testimony admissible if based on perception; relevance to credibility)
- People v. Carter, 36 Cal.4th 1114 (2005) (rules on relevance and admissibility; appellate standard for evidentiary rulings)
- People v. Guerra, 37 Cal.4th 1067 (2006) (abuse of discretion standard for evidentiary rulings)
- People v. Valdez, 32 Cal.4th 73 (2004) (appellate review of evidentiary exclusions)