Argument preview: Justices to resolve circuit split on juror testimony about deliberations
on Sep 29, 2014 at 11:29 am
On October 8, in Warger v. Shauers, the Court will hear oral arguments on whether, in support of a motion for a new trial, a juror may testify about statements made during deliberations which show that another juror gave misleading answers to questions asked on voir dire.
At issue is the interpretation of Federal Rule Of Evidence 606(b), which 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 rule makes exceptions for testimony about “extraneous prejudicial information,” “outside influence,” and clerical mistakes made in entering verdicts. Thus, testimony about statements during deliberations that show a juror’s irrationality, preconceptions, or misunderstanding of the law is banned. Jury trial cannot be made perfect, and the rule’s drafters opted to protect jurors from embarrassment and preserve the stability of verdicts.
The rule against testimony by jurors that “impeaches the verdict” has long roots, going back to a decision by Lord Mansfield in 1785. The drafters of the federal rules adopted a broad version of the rule, one that excludes testimony that jurors ignored instructions, refused to apply legal principles, speculated about forbidden matters, or even flouted the requirement of a unanimous verdict.
In its last pronouncement on the rule, over twenty-five years ago in Tanner v. United States, the Court displayed a great deal of reluctance to allow verdicts to be disturbed by testimony about juror misconduct. It construed the concept of “outside influence” very narrowly, resulting in a decision that excluded testimony about substance abuse by jurors. The Court said that, “[h]owever severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an ‘outside influence’ than a virus, poorly prepared food, or a lack sleep.”
The present case arises from a personal injury action involving a collision between Shauers’ truck and Warger’s motorcycle, resulting in the amputation of Warger’s leg. The jury returned a verdict for Shauers. Warger then filed a post-trial affidavit from a juror who alleged that during deliberations, the foreperson of the jury had argued against a verdict in his favor 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.” These alleged statements were offered to show that the foreperson had not been fully honest in her responses to voir dire questions, which 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.
The trial judge refused to receive the affidavit as evidence. The Eighth Circuit affirmed, while expressly noting a circuit split on the question whether juror testimony about statements during deliberations was admissible to show dishonest answers during voir dire.
Observers who support allowing juror testimony about misconduct might wish for more sympathetic facts than those presented in this case. There are certainly more outrageous examples of lying during voir dire – for example, concealing racial bias in response to specific questions or falsely denying a personal relationship with one of the parties.
Moreover, Warger (the petitioner before the Supreme Court) will have problems reconciling the desired result with the language of Rule 606(b). His brief first attempts to do so by arguing that Rule 606(b) does not operate to exclude the evidence because the testimony is not being offered during an “inquiry into the validity of a verdict or indictment.” It cites the Court’s 1933 decision in Clark v. United States, which held that testimony about statements made in deliberations was admissible in a contempt proceeding against a juror who concealed her relationship with the defendant during voir dire. Some courts, Warger states, have expanded this holding to allow the testimony in support of a motion for a new trial. He also argues that a contrary decision would raise serious constitutional issues, especially in criminal cases where the issue is the racial bias of a juror. Warger praises voir dire as a treasured element of American trial procedure and stresses the need for honest answers during voir dire.
Shauers points out that the motion for a new trial made here was in fact an attack on the validity of the verdict, because the trial judge cannot grant a new trial without vacating the verdict. He also argues that the rule sought by Warger would open the floodgates, setting the stage for post-verdict challenges in virtually every case: jurors are frequently asked on voir dire whether they will follow the instructions and decide the case on the evidence alone, and jurors frequently make statements during deliberations that depart in some way from this ideal.
Warger’s alternative argument (which he stresses only lightly) is that the evidence fits under the exception in Federal Rule of Evidence 606(b) for “extraneous prejudicial information.” Unfortunately for him, legislative history and precedent clearly foreclose the argument that a juror’s detour into an irrelevant personal anecdote itself constitutes “extraneous prejudicial information.” Faced with that problem, Warger posits that a juror’s statements about personal history during deliberation become transformed into “extraneous personal information” when they show that the juror lied during voir dire. Shauers reviews the precedent holding that jurors’ tales about their personal experiences are not “extraneous prejudicial information” and denies that conflict with voir dire answers make them fit into that category.
The case garnered five amicus briefs. A concise and capable brief on behalf of the United States argues against reversal and in favor of the position that the testimony is barred by Rule 606(b). It contains straightforward answers to Warger’s arguments about statutory interpretation. At a more general level, it argues that a ruling in Warger’s favor would create an exception that swallows the rule, undermining the rule’s goals of protecting the stability of verdicts, encouraging free and frank deliberations, and protecting jurors from harassment. The brief of the National Association of Criminal Defense Lawyers takes the opposite position, stressing the danger of untruthful answers during voir dire that conceal racial, ethnic, and religious bias.
Competing groups of law professors also filed briefs. Those supporting Warger emphasize the importance of voir dire in producing impartial juries, and they argue that the no-jury-testimony rule evolved in a climate that did not have robust voir dire. Those supporting Shauers argue that allowing this sort of juror testimony leads to endless challenges and would change voir dire into a strategic mechanism. On voir dire, lawyers would ask broad general questions about following the law to set up post-verdict challenges.
The case looks like an uphill battle for those who want the Court to hold that a juror’s testimony about statements during deliberations are admissible to show dishonest answers during voir dire. Warger will have to overcome the Court’s reluctance to disturb the stability of jury verdicts with arguments that do not fit comfortably with the language of Rule 606(b).