Skeletons in the Juror's Closet

           You are the plaintiff’s attorney in a personal injury suit.  Two years ago your client was hit by a semi-truck and it is finally time for jury selection and trial.  During voir dire, Juror Number 3 tells you that he has never been involved in a serious car accident.  Fast forward two weeks.  The jury returns a verdict in favor of the defendant, but you receive an anonymous letter from one of the jurors:
     Juror Number 3 lied to you.  During deliberations, he said “I used to be a truck driver and I’ve 
     been in these types of crashes.  It’s always the non-professional driver’s fault and they just want 
     to collect money.”

Do you think that your client, and you, received a fair trial?  If not, is there anything you can do about it?

            If your case is in federal court, it appears that the Supreme Court of the United States will answer this question soon.  According to the New York Times and SCOTUSblog, the Supreme Court heard oral argument from a factually similar case in October of this year.  When the case was before the Eighth Circuit, the plaintiff argued that jury misconduct tainted the verdict in two ways: (i) through the introduction of extraneous information and (ii) because a juror lied during voir dire.

The hurdle for the plaintiff is Federal Rule of Civil Procedure 606(b), which prohibits jurors from testifying about anything that occurred during deliberations, subject to three exceptions.  Two of the exceptions involve the introduction of extraneous information or outside influence, but the Eighth Circuit held that “Jurors’ personal experiences do not constitute extraneous information; it is unavoidable they will bring such innate experiences into the jury room.”

The Eighth Circuit is correct, but that is why you asked Juror Number 3 if he had ever been in a serious car accident.  You wanted to know what experiences each juror would be taking back into the black box, and Juror Number 3 lied to you.  So what happened to the plaintiff’s second ground for jury misconduct?  The Eighth Circuit noted that FRE 606(b) is silent on the issue and cited a current circuit split.  The Eighth Circuit adopted the Third and Tenth Circuits' approach and held that statements made during jury deliberations are not admissible to show that a juror lied during voir dire for the purposes of challenging the jury's verdict.

          What is at stake in the pending case?  There are competing interests on either side of the issue.  A traditional argument is that by limiting the amount and scope of exceptions to 606(b)’s prohibition against the admissibility of statements made during jury deliberations, we uphold the insulated nature of the jury and allow the jurors to express their true opinions, even if unpopular.  Another argument is that allowing deliberation based challenges to the verdict would result in a huge number of post-verdict challenges.  Based on reports of the questions asked by the Justices during oral argument, it appears that the Court buys into both of these pro-prohibition arguments.

          However, I find these argument unpersuasive for two reasons.  First, an exception for statements made during deliberations that directly contradict a juror’s answers during voir dire would be narrow enough that it would not greatly diminish the insulated nature of the jury and would not lead to huge amounts of post-verdict challenges.  Second, a juror expressing an unpopular opinion is already in a room with eleven (or five, etc.) other human beings.  And each of the other jurors can speak freely about the deliberations (to friends, family, media, etc.) after the trial anyway.  

            I do not think that courtrooms across the United States are full of John Cusack style runaway jurors, but I do think that there are jurors like Juror Number 3 who conceal strong biases about a case during void dire and espouse those biases during deliberations.  Why not set up a procedure to evaluate this type of jury misconduct?