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. 

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?

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.