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Opinion analysis: Federal judges have inherent, limited power to recall a discharged civil jury

Other than perhaps the Court’s first use of “T-boned” to describe an automobile accident, there was little remarkable in yesterday’s six-to-two decision in Dietz v. Bouldin.  Justice Sonia Sotomayor wrote for the majority that, at least when a jury has rendered a “legally impermissible” verdict, federal trial judges have “inherent” authority to “recall a [discharged] jury for further deliberations” – but that authority is “limited in duration and scope and must be exercised carefully.”  The key is whether “any suggestion” of or opportunity for “prejudice” of the jurors has arisen after the discharge.  Moreover, yesterday’s ruling is “limited to civil cases only” in light of “additional concerns in criminal cases, such as (as Justice Anthony Kennedy noted at oral argument) double jeopardy.”

In dissent, Justice Clarence Thomas, joined by Justice Kennedy, argued that old common law cases did not recognize such discretion once a jury was formally discharged; on balance, he concluded, the Court should adhere to that easily administered rule.  The majority’s discretionary, “multifactor” approach, Justice Thomas argued, “will only create … confusion” and “produce more litigation.”

Simple facts make good law?

As explained in my preview, Hillary Bouldin, while driving in Bozeman, Montana, “T-boned” the car that Rocky Dietz was driving, causing damage to Dietz’s car and physical injury to Dietz.  After Bouldin removed Dietz’s negligence lawsuit to federal court, the parties stipulated to damages of $10,136.  The question remaining for a jury was whether Dietz was entitled to more, and – if so – how much more.

After a two-day trial, the deliberating jury sent a note with a question about the stipulated $10,136 amount.  The judge and the parties agreed that no further instructions should be given, but the judge noted that if the jury was confused and failed to return a verdict of at least that amount, he would have to declare a mistrial.

Lo and behold, the jury promptly returned a verdict of $0.  But inexplicably (perhaps the judge was busy with other matters, and perhaps the silent lawyers were both acting strategically), the judge simply thanked the jurors for their service and ordered the jury “discharged,” telling the jurors they were “free to go.”  The jurors then left the courtroom.

Quickly thereafter, however, the judge realized there had been a mistake, and he ordered the clerk to reassemble the jurors.  Noting that he would “hate to throw away the money and time that’s been expended in this trial,” the judge decided (over Dietz’s objection) to re-empanel the jury and allow it to further deliberate with new instructions that would clarify their mission.  After the clerk confirmed that no juror (other than one possibly) had left the building in the interim, and the jurors confirmed when questioned as a group that they had not spoken to anyone about the case, the jury was sent back to re-deliberate the next morning.  They quickly returned a verdict for Dietz of $15,000.  The Ninth Circuit affirmed, and yesterday the Supreme Court affirmed that Ninth Circuit ruling.

A useful discussion of federal judges’ “inherent authority”

Yesterday’s decision provides a useful discussion of the “inherent authority” of federal judges “to manage their own affairs so as to achieve the orderly and expeditions disposition of cases.”  Two principles define rough limits.  First, any exercise of such authority must be “a reasonable response” to real “problems and needs confronting the court’s fair administration of justice.”  Second, the exercise must not be “contrary to any express grant or limitation” of a federal court’s power as found in “rule or statute.”

These principles were satisfied here.  Recalling a discharged jury is “reasonable” in some circumstances, and can serve the interests of ensuring the efficient use of resources as well as fairness.  Federal courts already have express authority under Federal Rule of Civil Procedure 51(b)(3) to reinstruct a jury and order it to deliberate further before it is discharged; and precedents endorse courts’ inherent authority to rescind and change other orders in “analogous circumstances.”  Where the alternative is an expensive and time-consuming new trial, recall of an already chosen and instructed, but recently discharged, jury “can save the parties, the court, and society … costly time … and expense.”  Meanwhile, there is no express statute or rule, or even an “implicit limitation,” prohibiting a carefully exercised recall power.

Nevertheless, the Court quickly explained that the inherent power to recall a discharged jury “must be exercised with restraint.”  Most importantly, “[a]ny suggestion of prejudice … should counsel a court not to exercise its inherent power.”  “[T]he guarantee of an impartial jury” counsels special care to avoid the “potential for taint” that can arise from “improper extraneous influences.”  Thus, before recalling a discharged jury, a judge “should, of course, determine whether any juror has been individually tainted.”  (The Ninth Circuit had suggested that individual voir dire of each juror may be the better course, and while the Court yesterday intimated that it might agree with that suggestion, it “decline[d] to review” the question because Dietz did not object to the group voir dire in this case.)

In addition, the Court offered a further, non-exhaustive list of “additional factors” that judges should consider, “any of which could be dispositive” against recall:

(1) the length of delay: “the longer the jury has been discharged, the greater the likelihood of prejudice”;

(2) whether the jurors have spoken to anyone about the case since discharge, even an “innocuous” exchange with a courtroom deputy;

(3) any “reaction” to the verdict that discharged jurors may have witnessed, such as “gasps, crying, cheers, and yelling”; and

(4) to what extent discharged jurors may have “accessed their smartphones or the internet.”

(Sidenote: on this last point, Justice Sotomayor noted a “now-ingrained instinct to check our phones whenever possible” and wrote, perhaps not for the ages, that “prejudice can come through a whisper or a byte.”  Her opinion then references “Google” and “Twitter” rather than more generic descriptors such as “internet search engine” or “rapid social media source.”  Trademark-protecting lawyers may be a bit chagrined; some may remember that “Ping-Pong” is actually a brand name for table tennis.)

Finally, the majority rejected the call for “a categorical ban on reempaneling a jury after it has been discharged.”  Even if the common-law rule was clearly against the practice – and the Court cites an 1839 case to suggest that it was not – times and “modern federal trial practice” have changed.  Jurors are no longer routinely sequestered for the duration of every trial, and “harmless error” rules have proliferated instead of automatically granting a new trial for any error.  Meanwhile, the Court noted that there will be line-drawing problems no matter what rule is adopted, and it listed a number of questions raised by a more categorical still-in-the-courtroom line for permitting recall.

In sum, “[a] discharge order is not a magical invocation,” and Justice Sotomayor noted with humility that “all judges make mistakes. (Even us.).”  There is “no benefit” to a categorical bar against jury recall when recall can “correct an easily identified and fixable mistake.”

Is it “revolting to have no better reason for a rule than that so it was laid down in the time of Henry IV”?

Justice Thomas began his dissent with this 1897 “quip” from Justice Oliver Wendell Holmes, but then immediately recalled the thought, saying that “old rules often stand the test of time because wisdom underlies them.”  A “simple” prophylactic rule to “avoid the possibility of prejudice” is “sensible” and easily administered, Justice Thomas argued.  The majority’s “multifactor test” will spawn confusion and more litigation.  Moreover – and I am grateful to Justice Thomas for making a point I often stress to my students – while a multifactor test “may aid in identifying relevant facts, …like most multifactor tests … it leaves courts adrift once those facts have been identified.”  That is, once all the factors have been considered, then what?


Justice Thomas is surely right that lower courts applying yesterday’s decision are likely to issue seemingly inconsistent rulings regarding the limits of jury-recall powers in fact-specific cases.  But – and this is my opinion, not the decision’s – this is true of virtually any legal rule or analysis the Supreme Court is capable of adopting.  “Facts always outstrip the law” is one of my classroom mantras.

Meanwhile, many believe that Justice Holmes was right: more than common-law history is needed to compel twenty-first century results.  Justice Thomas’s approach is consistent with his general disposition to favor Framing-era rules.  But yesterday’s majority chose a cautious, discretionary “inquiry focused on potential prejudice,” with modern-day pitfalls firmly in mind, rather than adopt a bright-line prohibition against recalling a discharged jury no matter what the costs involved.  A useful sentence or two citing Dietz in federal practices treatises are likely already being written.

Recommended Citation: Rory Little, Opinion analysis: Federal judges have inherent, limited power to recall a discharged civil jury, SCOTUSblog (Jun. 10, 2016, 11:28 AM),