Warger v. Shauers: Will the Supreme Court Build a Road Around FRE 606(b)?

The Supreme Court of the United States recently granted certiorari in the matter of Warger v. Shauers. In Warger, the plaintiff motorcyclist appealed a judgment in favor of the defendant, a truck driver, after a juror came forward with information suggesting the jury foreperson was dishonest during voir dire and later influenced the verdict in this action for negligence. The case will determine whether a party moving for a new trial on the grounds of juror dishonesty during voir dire may introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty. The plaintiff asserts that dishonesty during voir dire provides a basis for juror testimony that is unhindered by the requirements of FRE 606(b). Although Federal Rule of Evidence 606(b) appears to be dispositive on this issue, the courts are divided in applying the rule in such situations. Thus, if the Supreme Court answers in the affirmative we may see a rise in the number of motions for a new trial as well as a possible chilling effect on the deliberation process.

Does dishonesty during voir dire fall outside of the prohibition stated within FRE 606(b)? I posit that it does not. As noted by the Tenth Circuit in United States v. Benally, permitting juror testimony for this reason provides a means to circumvent FRE 606(b).  Indeed, if permitted, those who wished to introduce juror testimony otherwise barred by FRE 606(b) need only assert that a juror’s unfavorable comments during deliberation serve as proof that they were not forthcoming during voir dire. Testimony consisting of jurors' statements made during deliberations will certainly increase if the proposed exception is approved by the Supreme Court. Jurors may then worry that their comments during deliberation could be used to imply they were not truthful during voir dire. This will almost certainly reduce the participation of many jurors during the deliberation process. Many jurors who would ordinarily contribute to ascertaining a verdict may choose to limit their participation. Moreover, some jurors who are best suited for the role of foreperson may decline the position. In addition to the added juror anxiety, courts face the unpleasant prospect of needlessly rehearing cases. As a result, the potential exploitation of a route around FRE 606(b) presents a risk that outweighs the interests of fairness presented in Warger.

In light of the risks associated with permitting an alternate means to introduce testimony of a juror’s comments during deliberation, FRE 606(b) ought to remain the sole consideration when considering a motion for a new trial. The language of FRE 606(b) encompasses the so-called voir dire alternative. Warger’s argument that dishonesty during voir dire is distinct from “an inquiry into the validity of a verdict or indictment,” amounts to mere parsing of words. Clearly, an inquiry concerning a juror’s dishonesty during voir dire is effectively an inquiry as to the validity of the verdict.