Argument analysis: Juror testimony about deliberations

Thanks to a circuit split, Supreme Court is taking one of its rare visits to the world of evidence doctrine. At issue in Warger v. Shauers is whether, in support of a motion for a new trial, a juror may testify about statements by another juror during deliberations, when the testimony is offered to show that the other juror was dishonest in answers to voir dire questions. Federal Rule of Evidence 606(b) generally prohibits testimony of jurors about statements made during deliberations when the testimony is offered in “an inquiry into the validity of a verdict or indictment.”

The case arises from a personal injury action involving a collision between the truck that Shauers was driving and Warger’s motorcycle. After a verdict for Shauers, Warger moved for a new trial. He supported that motion with a juror’s affidavit which alleged that the jury’s foreperson had argued against a verdict for Warger by saying that her own daughter had been at fault in a fatal automobile accident and that, if her daughter had been held liable, it would have “ruined her life.” The affidavit was offered in support of a claim under McDonough Power Equipment v. Greenwood that a new trial should be granted because of dishonesty during voir dire. The voir dire questions had covered topics such as whether jurors had prior experiences that might bias them and whether they would be able to return a verdict based solely on the law as described in the instructions. During the voir dire, the foreperson also stated affirmatively that she would be able to award damages for pain and suffering if the evidence supported it.

Warger maintains that a claim that a juror was dishonest during voir dire is not an “inquiry into the validity of a verdict” within the meaning of Rule 606(b), while those on the other side (including the United States as an amicus supporting Shauers) say that a motion for a new trial based on juror dishonesty is exactly such an inquiry. Warger’s opponents argue that a decision in Warger’s favor will lead to endless challenges based on statements by jurors that arguably conflict with promises to follow the law made on voir dire; Warger counters that these horribles have not occurred in states that follow the rule he prefers.

In Wednesday’s oral argument, the practical consequences of a decision in Warger’s favor came up time and again. Justice Ruth Bader Ginsburg suggested that “it’s too easy to convert anything that occurs in the jury room as reflecting on the voir dire,” using the example of a juror who promises to follow the instructions and then in the jury room wants to average it all up and go home. Justice Samuel Alito and Chief Justice John Roberts asked questions suggesting that Warger’s proposed interpretation would lead to solicitation of jurors by lawyers. These questions drew two types of responses from Warger: First, the incentive to solicit jurors would not be very great because of the difficulty of making out a McDonough claim; and second, the floodgates had not opened in the states, including California, that already followed the rule that he urges. Shauers disputed these points, saying that the actual results in states like California were unknown, and that Warger had exaggerated the extent to which evidence of juror deliberations was admitted in California.

During oral argument, Shauers maintained that Warger’s claim fit squarely under Rule 606(b), emphasizing that “[w]hat they want here is a new trial and the verdict invalidated.” The Justices also questioned Warger’s characterization of his claim as an “inquiry into the composition of the jury” as opposed to an “inquiry into the validity of a verdict.” Justices Antonin Scalia, Sonia Sotomayor, and Elena Kagan doubted whether the language of the rule would bear that interpretation. Scalia pointed out that Warger’s ultimate goal was to set aside the verdict, while Kagan said that she was “just not getting” the distinction urged between inquiries into validity and inquiries into composition and suggested that the ultimate question being asked was whether the verdict was valid. In response to these points, Warger’s counsel noted that a McDonough claim could be brought even before the verdict was reached, and he stated that a claim of juror dishonesty during voir dire “does not require any examination of the verdict itself.”

There were also questions about whether the particular facts of the case actually indicated juror dishonesty. Justice Ginsburg suggested that the juror’s conduct after saying she could judge the case fairly was not “blatant,” and Chief Justice Roberts indicated the evidence was “ambiguous” about whether the juror’s answers were dishonest. Warger conceded that he evidence was not a “smoking gun,” and suggested that it would be up to the trial judge to decide the dishonesty question if the case were remanded after a decision allowing juror testimony.

One of the points raised in the briefs by both Warger and his amici is that honesty in voir dire is important in cases in which it might uncover racial bias. Warger raised this point again in oral argument, telling the Justices that the doctrine of avoiding constitutional issues supported a decision in his favor. And Justice Alito asked Shauers about racial bias and what would happen in when the jurors denied any bias but a juror came forward during the deliberations with allegations that other jurors made statements showing they were clearly prejudiced. Shauers answered flatly that there could still be no jury testimony and that if the result was wrong, fixing it was a job for Congress.

The Justices noted more than once that the McDonough case – a 1984 Supreme Court case recognizing that, in special circumstances, juror dishonesty during voir dire could justify a new trial – was not a case involving juror testimony about statements made during deliberations. Early in the argument, Ginsburg also alluded to the wisdom and longevity of the rule prohibiting a juror from testifying about deliberations, drawing a response that pointed to countervailing considerations of fairness.

Seven of the nine Justices had questions. The exceptions were Justice Clarence Thomas and a former evidence professor, Justice Stephen Breyer.

Warger drew most of the questions and comments from the Justices – a total of thirty-two compared to fourteen for Shauers. (The United States, arguing as an amicus in support of Shauers, did not draw any questions at all.)   The questions to Warger seemed to display skepticism about his position, but this observer is wary of basing a prediction on that sort of evidence. Whatever the result, the loser will not be able to blame counsel: the parties and amicus were ably represented by experienced Supreme Court practitioners.