Thursday, December 11, 2014

Impeaching the Verdict -- Or Not -- Or Maybe

From Paige Nichols, a primarily-appellate attorney with Monnat and Spurrier:  
This week the Supreme Court decided Warger v. Shauers, a case about what kind of evidence can be used to impeach a jury’s verdict. In a unanimous opinion by Justice Sotomayor, the Court unsurprisingly held that Federal Rule of Evidence 606(b) prohibits courts from considering one juror’s sworn statement that another juror made statements during deliberations indicating that she had lied during voir dire.
This opinion is unsurprising because the Court, as Justice Sotomayor pointed out, “simply accord[ed] Rule 606(b)’s terms their plain meaning.” The Rule (full text here) prohibits, inter alia, a juror from testifying about a statement made during jury deliberations. Exceptions allow juror testimony about extraneous information or influences (bribes, unlawful scene visits, exposure to prejudicial news stories, contacts by witnesses, etcetera), and mistakes in entering the verdict on the verdict form. F.R.E. 606(b)(2).
The Rule has long been interpreted to exclude a wide range of juror testimony. A majority of the Tenth Circuit has consistently applied these limits to disallow juror testimony about some pretty unpleasant juror (mis)conduct, including rank racism and other expressions of bias during deliberations. But see this decision in United States v. Benally.
But Warger suggests that there may a constitutional light at the end of the “mental processes” tunnel. In a footnote, the Court states that “[t]here may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process.” (page 10-11). Was Benally that case? I would have thought so, and I wonder whether this footnote would have made a difference to the Tenth Circuit back then.
A few other points to ponder:
  • When conducting juror interviews, counsel should always proceed with caution, and be aware that there is a strong culture of opposition to post-trial juror interviews among some lawyers and judges. In just one for instance, Federal District Judge Richard G. Kopf, who blogs at, quickly praised the Warger decision in a post scoldingly titled “After they rule against you, leave jurors alone.”
  • I respectfully disagree with Judge Kopf. Post-trial juror interviews can yield valuable information about the fairness of a criminal trial. And even if counsel can’t make use of a juror’s testimony about what happened in the jury room, that information may inspire further investigation which may itself yield “nonjurur evidence” of misconduct that is not subject to Rule 606(b). See page 10 of Warger(reciting with approval Tanner’s holding “that the defendant’s right to an unimpaired jury was sufficiently protected by voir dire, the observations of court and counsel during trial, and the potential use of ‘nonjuror evidence’ of misconduct”).
  • There is one definite upside to Warger’s and other courts’ hardline adherence to Rule 606(b)’s distinction between external influences and internal mental processes. If defense counsel learns that jurors were subjected to external influences, the government may not call upon the jurors to testify that they were not affected by those influences. In Sassounian v. Roe, 230 F.3d 1097 (9th Cir. 2000), the Ninth Circuit noted “[a] long line of precedent” distinguishing “between juror testimony about the consideration of extrinsic evidence, which may be considered by a reviewing court, and juror testimony about the subjective effect of evidence on the particular juror, which may not.” Id. at 1108. The court agreed that “having to ignore the most direct evidence of prejudice”—a juror’s own testimony—“lends an ‘Alice in Wonderland’ quality to the discussion of whether [the defendant] was actually prejudiced by the admitted jury misconduct.” Id. at 1109. “Nevertheless,” the court concluded, “the weight of authority and sound policy reasons support this view.” Id.

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