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. 

Should a Facebook "Friend Request" to Juror be a Cause for an Appeal?

As our society has increasingly become more dependent on the use of technology and social media, it is no surprise that our court system is now combating the use of social media within the justice system. More specifically, a recent issue has surfaced regarding the effects social media could have on jury deliberations.  Jurors have repeatedly made headlines for their misconduct on their phones throughout their jury service; including being caught using their phones during the deliberation process in order to conduct their own research on the case at hand.

Unfortunately for the courts, the jurors are not the only ones in which they should be concerned about using social media to effect the deliberation process.  In August, a Michigan woman was arrested after a juror informed the Judge that he had received a “friend request” on Facebook from the defendant’s girlfriend, Brianna Trovato. Ms. Trovato’s boyfriend was found guilty on six counts of manufacturing with intent to deliver marijuana and six related firearms offenses. Ms. Trovato herself is now facing contempt of court charges for the Facebook friend request she sent the juror.

The juror never accepted theFacebook "friend request" from Ms. Trovato, but on the second day of deliberations he told the rest of the jurors that Ms. Trovato had attempted to contact him by sending him a "friend request" via Facebook. Often when sending a friend request, the person receiving the request can see the person’s picture and limited personal information. The jurors were aware of Ms. Trovato’s identity and her relationship to the defendant as she attended court every day and did not attempt to hide her relationship with the defendant.

Even though the "friend request" was never accepted, the "friend request" could have possibly affected the deliberation process and thus affected the outcome of the case.  Announcing during deliberations that the girlfriend of the defendant requested to be your friend on Facebook is bound to affect the conversation that was held during the deliberation process. Some of the jurors may have wondered what her motive for sending this request was. Some jurors may have been concerned how she was able to find this particular juror on Facebook. All of these considerations could have skewed the deliberations and shifted some of the focus away from the facts presented to them. The defendant’s attorney, Amberg, made his opinion of the deliberations apparent with is statement to the press,“This apparently happened during their deliberations. Who knows what affect it might have had on other jurors trying to decide on a verdict. I know that I see this as an excellent grounds for appealing his conviction and obtaining a new trial.”

If this case is appealed and a new trial is granted, it can be argued that perhaps Ms. Trovato got the results she was intending to invoke. Should a third party not related to the case be able to cause a new trial by the push of a button? If defendant’s are sure this particular trial is not going well, should they be able to have their friends and family "friend request" jury members in order to have their case tried again, in hopes of a more favorable outcome? Friends and family members may be easily tempted to send such a "friend request" if the punishment or penalty for doing so is low compared to the benefit of having a new trial granted if the defendant is likely to have an unfavorable outcome. If they are merely slapped on the wrist or perhaps given a minor fine this may be worth the outcome of their loved ones having a chance at a new trial.