P. v. Picasso CA5
During deliberations on various charges, including first degree murder, the jurors were called into the courtroom to be excused for the day. Since the judge who had presided over trial had an appointment, another judge was tasked with excusing the jurors that day. A juror asked the judge what the difference was between first and second-degree murder. Neither the prosecutor nor defense counsel was present. Without counsel’s input or presence, the judge gave a vague though arguably correct instruction, and referred the jurors to their instruction packet. The judge’s ex parte instruction to the jury violated defendant’s right to counsel at a critical stage of the proceedings. The primary issue is whether this error was prejudicial.
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