(concurring in part and dissenting in part). I agree with the majority’s result and rationale with regard to defendant Nevers,1 and its result in respect to defendant Budzyn. I write separately to explain my disagreement with certain aspects of the rationale in Budzyn.
First, despite differences of origin, history, class, education, race, ethnicity, sex, economic status, or educational level, it is a fundamental presumption of the judicial system that all Americans are equally capable of fairly discharging their public responsibilities. Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 *109L Ed 2d 69 (1986). Therefore, I disagree with the analysis of the opinions of both Chief Justice Mallett and Justice Riley regarding the showing of the movie, Malcolm X, to the extent that each employs assumptions about the predispositions of jurors. The system addresses the mind-set of jurors through voir dire, challenges for cause, and motions for change of venue, all of which require a demonstration of reasons why a prospective juror or a given community may be suspect. The approach is both aspirational and pragmatic. The judiciary has no competence to assess the cultural or psychological mind-set of a given jury and assess its reactions in light of its own assumptions. I also agree with the prosecution that the movie was not an extraneous communication, Tanner v United States, 483 US 107; 107 S Ct 2739; 97 L Ed 2d 90 (1987), and find no error in this regard.
Second, I have reservations regarding the majority’s resolution of the issue regarding juror knowledge during deliberation of contingency plans in the event the verdict was an acquittal. Prospective jurors were questioned regarding whether they would find Budzyn guilty in order to avoid a riot, and the jury as seated was presumptively not vulnerable to such pressure. However, while this is not a situation in which community sentiment developed after the trial had begun, reports that freeways and businesses might be closed might have made real what during voir dire was purely hypothetical. While not free from doubt,2 I would conclude that, although discussed during delib*110erations, this information, standing alone, would not require reversal.
However, I agree with the majority that the communication of incorrect information to the jurors during deliberations that defendant Budzyn was a member of STRESS was error requiring reversal.
While I do not evaluate the evidence precisely as does the majority,3 I agree that the evidence in Budzyn was not as strong as that in Nevers. Evaluated in the context of the evidence as a whole, the prejudicial significance is that Budzyn’s membership in STRESS indicated a propensity for abuse of young black males. By all accounts, Green had what turned out to be cocaine in his hands and refused to surrender it. Thus, Budzyn’s initiation of force against Green was lawful, whichever version of the testimony is believed. The issue in Nevers’ trial turned on whether the jury believed Nevers’ testimony that the deceased was trying to take his gun, thus justifying the life-threatening response. The issue in Budzyn’s trial, by contrast, was whether, and at what point, the lawful use of force became unreasonable.
In substance, the jurors were told that Budzyn was a bad actor with a propensity for violence against young black men. Coupled with other evidence admitted at trial, this information could have persuaded the *111jurors that Budzyn had a man-endangering state of mind. Thus, it is not only the fact, as the majority observes, that this evidence was relevant to besmirching the defendant’s character, United States v Hall, 85 F3d 367, 371 (CA 8, 1996), but the fact that this information supported the prosecution’s theory that defendant was guilty of second-degree murder, United States v Bruscino, 662 F2d 450 (CA 7, 1981), that is prejudicial.
Our responsibility is not to decide what we would have done or what we think the jury should have done. It is to hypothesize what the jury would have done had it not been exposed to the extrinsic information. Because there was substantial and real prejudice, United States ex rel Owen v McMann, 435 F2d 813 (CA 2, 1970); United States v Bagnariol, 665 F2d 877 (CA 9, 1981), I cannot conclude that the error was harmless beyond a reasonable doubt. I join in the opinion for reversal of defendant Budzyn’s conviction of second-degree murder. I would affirm the conviction of defendant Nevers.
Neither the majority nor the dissent addresses Nevers’ motion for change of venue. I conclude that although the issue is closer than either opinion acknowledges, there is an insufficient showing to overcome the presumption that the community was able to seat a jury that could adhere to its oath. People v Jendrzejewski, 455 Mich 495; 566 NW2d 530 (1997).
Case authority requires a showing of materiality to guilt or innocence. United States v Bagnariol, 665 F2d 877 (CA 9, 1981).
The fact that some witnesses knew Malice Green very well or that they all had consumed either alcohol or cocaine before witnessing the exchange goes to bias and capacity to observe, which are routine jury questions. If these witnesses had been those who saw Nevers’ actions, for example, I doubt that the majority would find these factors relevant to the analysis. Moreover, these observations are inconsistent with the fact that only Brown testified about having seen a visible manifestation of the contact, that is, the movement of the decedent’s head. Fletcher, the person closest to Green in terms of a prior relationship, testified that he did not see Green struck anywhere except on his hands.