The Limits of FRE 606(b) on Juror Misconduct

Like all human beings, jurors come with biases, prejudices, and preconceived notions.¹  Jury misconduct contentions may arise when jurors bring their biases, prejudices, and preconceived notions with them into the jury room and use them against a party.  While attorneys attempt to weed out jurors with unfavorable biases during the voir dire process, they are not always successful.²  Some jurors fail to disclose biases during voir dire, only to have them later exposed by fellow jurors after a verdict has been returned.  Jury misconduct discovered at this stage can lead to a mistrial, resulting in a huge waste of resources.³   

In 1987, the Supreme Court addressed the issue of discovering jury misconduct post-trial.⁴  In Tanner v. United States, the Court held that jury misconduct such as consuming alcohol, marijuana, and cocaine during jury deliberations was not enough to overturn a jury verdict.⁵ Justice O’Connor delivered the opinion to the Court and expressed her concerns about allowing jury misconduct to result in a mistrial:

There is little doubt that post verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process. [. . . .] Moreover, full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, [. . .] and the community's trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of post verdict scrutiny of juror conduct.⁶

The Supreme Court based its decision to deny a hearing on jury misconduct on Federal Rule of Evidence 606(b).⁷  According to the rule, a juror may not testify about statements made or incidents that occurred during the jury’s deliberations.⁸  In line with Justice O’Connor’s opinion, this juror anti-impeachment rule was put into place to encourage jurors to freely express themselves during deliberations, to reduce the amount of post-trial hounding jurors receive from lawyers, and to provide verdict finality.⁹ 

However, courts do not always turn a blind eye to juror misconduct.  The appellate courts have inconsistently applied FRE 606(b) in their decisions, thus making it difficult to decide what exactly constitutes juror misconduct severe enough to warrant a mistrial.  This split recently led the Supreme Court to grant cert in Warger v. Shauers.¹⁰  The case was brought by a motorcyclist whose motorcycle collided with a truck near Mount Rushmore in South Dakota.¹¹  The motorcyclist lost his leg in the accident and sued the truck driver for negligence, which resulted in a jury verdict in favor of the truck driver. ¹²  And this is where the case gets interesting: after the trial, one of the jurors had second thoughts and told the motorcyclist’s lawyer that the forewoman decided the case based on her own personal experiences rather than on the evidence presented. ¹³  According to the juror’s sworn statement, the forewoman told her fellow jurors during jury deliberations that her daughter was at fault in a fatal automobile accident and that a lawsuit would have ruined her daughter’s life. ¹⁴  Based on the juror’s sworn testimony, the motorcyclist’s attorney moved for a mistrial on the grounds that the juror had lied during voir dire,¹⁵  but the district court denied the motorcyclist’s motion, using as its support FRE 606(b).¹⁶ 

The case will be heard on October 8th, 2014, and the Supreme Court will ultimately decide “[w]hether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.”¹⁷   In other words, can the motorcyclist rely on evidence from inside the jury room to get a new trial? ¹⁸   Hopefully the Supreme Court will go further than just answering this question and address the federal circuit’s split, which may shed light on how severe juror conduct must be before a mistrial is warranted.