In what circumstances will the court replace or replace a juror who has been admonished by the jury against considering inadmissible evidence?

In People v. Hogan, supra, 31 Cal.3d 815, 183 Cal.Rptr. 817, 647 P.2d 93, an entire audiotape of a conversation between defendant and his wife was sent to the jury room. Included was a portion the trial court had struck because it suggested defendant was unwilling to take a lie detector test. When this was brought to the [182 Cal.App.3d 428] court's attention, the judge recalled the jurors and admonished them at length against considering this as evidence against the defendant.

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In the instant case, the "nature of the improperly received evidence" was so vital to a very close issue as to likewise be "so prejudicial" it might have been "incurable by (judicial) admonition alone." Here, moreover, there was no question of the timeliness or completeness of a judicial admonition because there was none. Thus, the present case contrasts with People v. Knights (1985) 166 Cal.App.3d 46, 212 Cal.Rptr. 307, where the jury foreman immediately advised the court when one of the jurors spoke about inadmissible evidence. This gave the court the opportunity to replace the offending juror, to individually question the others about their ability to disregard the erroneously received item, and to instruct them to begin the deliberations anew.

In a recent Court of Appeal case, People v. Andrews (1983) 149 Cal.App.3d 358, 196 Cal.Rptr. 796, not only had the judge admonished the jury but there were jury affidavits the jurors had abided by the admonition and disregarded the improperly received material. During trial it came to the attention of the court that some jurors might have read a newspaper article reporting the defendant's wife had pled guilty to one of the counts. The judge admonished the jury to disregard and not read any news releases about the trial. Inadvertently the newspaper articles were [182 Cal.App.3d 429] sent to the jury room. On appeal of the conviction, the court reversed on grounds of prejudicial jury misconduct. "Respondent asserts that as to the instant case, affidavits of the jurors that they acted in conformity with the court's admonition is (sic) sufficient to dispel the presumption of prejudice. We disagree." (Id., at p. 365, 196 Cal.Rptr.) As in the instant case, the affidavits were in conflict about how the jury treated the erroneously admitted evidence. One juror reported it was agreed by all " 'We discontinue any further talk regarding the article as well as disregard their contents.... (F)from that point on, the subject of the newspaper articles was never brought up by anyone.' " However, another juror claimed " 'We were all asking each other if we were supposed to have all these articles ... to look at and we thought we were since they were there.' " (Id., at p. 365, fn. 4, 196 Cal.Rptr.) The court concluded "the jury affidavits failed to rebut the presumption of prejudice and, because of the potentially injurious nature of the inadmissible evidence given to the jury, we cannot be assured that the prosecution's burden had not been lightened." (Id., at p. 366, 196 Cal.Rptr.)