Dean Victor Gold
This op-ed originally appeared in the Dec. 16, 2014 edition of the Los Angeles Daily Journal.
In a unanimous opinion by Justice Sonia Sotomayor, the U.S. Supreme Court ruled last week that Federal Rule of Evidence 606(b) makes inadmissible a juror’s testimony that another member of the jury lied during voir dire when that testimony is offered to support a motion for a new trial.
Warger v. Shauers was a negligence action brought in federal district court to recover for injuries suffered in a motor vehicle accident. During voir dire, the plaintiff’s counsel asked prospective jurors if there was any reason they would be unable to be fair and impartial. The prospective juror, who later became jury foreperson, answered no. The jury eventually returned a defense verdict.
The plaintiff’s subsequent motion for a new trial asserted that the jury foreperson lied during voir dire. In support of that motion, the plaintiff submitted a juror’s affidavit that, during deliberations, the jury foreperson stated that her daughter once had been at fault in an auto accident and that, had she been sued, her life would have been ruined. Denying the motion, the district court held that the affidavit was barred by Federal Rule of Evidence 606(b), which provides that “[d]uring an inquiry into the validity of a verdict,” evidence “about any statement made or incident that occurred during the jury’s deliberations” is inadmissible, subject to limited exceptions. The 8th U.S. Circuit Court of Appeals affirmed and the Supreme Court granted certiorari.
The origins of Rule 606(b) can be traced to the 18th century and a version of the rule is in place in virtually every state. The rule is venerable and universal because the policy behind it is so basic: Protecting the privacy of jury deliberations is essential both to encouraging full and open debate in the jury room and preventing harassment of jurors after a verdict. Without such a rule, no verdict would be final because the jury’s deliberations and thinking would be open to scrutiny. And because jurors are laypersons charged with the difficult task of applying often complex law to conflicting versions of facts, it would be a rare case where that scrutiny did not uncover misstep of logic or law.
The facts in Warger present a good example of the mischief that might ensue without a law like Rule 606(b). As in Warger, virtually every potential juror in virtually every case is asked the generic question, “Is there any reason why you might be unable to be fair and impartial in this case?” Typically, only those who answer “no” are selected to serve on the jury. But every trial lawyer takes that answer with a grain of salt. Every juror has biases. In fact, lawyers strive during jury selection to impanel jurors who are favorably biased. Few verdicts would survive if statements made during deliberations were admissible to support a motion for new trial on the ground jurors lied during voir dire in response to the generic question about being fair and impartial.
The Supreme Court noted that some American jurisdictions follow a narrow version of the rule, only prohibiting juror testimony regarding their subjective thought processes while permitting testimony concerning objectively observable matters, such as statements or other juror conduct during deliberations. California Evidence Code Section 1150 follows this narrow approach. But the Supreme Court read Federal Rule 606(b) as taking a broader approach, also barring juror testimony regarding statements or other matters occurring during deliberations.
The court noted this broader approach is limited only by the few exceptions in the rule, including the exception permitting juror testimony showing that extraneous prejudicial information was brought to the jury’s attention. As for that exception, the court concluded that information can be deemed “extraneous” only if it derives from a source external to the jury. Such external matters include publicity and information specifically related to the case before the jury, but do not include the general body of life experience that jurors bring into the jury room. That evidence, concluded the court, was internal since it may have informed the foreperson’s general views about negligence liability for car crashes, but did not involve specific facts regarding the case at bar.
The Supreme Court’s decision in Warger follows its 1987 opinion in Tanner v. United States. In Tanner, the court concluded that Rule 606(b) precluded a convicted criminal defendant from supporting his motion for a new trial with juror testimony that multiple jurors had been intoxicated during trial. As in Warger, the court in Tanner reasoned that the jury’s use of drugs or alcohol was a matter internal to the jury and, thus, did not fall within the exception to Rule 606(b) for “outside influences” such as bribes or threats directed at the jury.
The court in Warger also relied upon Tanner for its conclusion that excluding evidence a juror lied during voir dire does not render Rule 606(b) unconstitutional. Of course, the Sixth Amendment guarantees a right to trial before a jury that is both impartial and mentally competent. That right is undermined when jurors lie about being impartial or are intoxicated during trial. But the court in both Warger and Tanner held this right was sufficiently protected under the facts of those cases because Rule 606(b) precludes only one type of evidence — juror testimony attacking the validity of a verdict. The provision does not preclude testimony from jurors before a verdict is rendered or testimony from nonjurors even after a verdict.
But this reasoning suggests there may be limits to Warger and Tanner. For example, what if there is no evidence of juror bias that emerges prior to a verdict, the only evidence that emerges thereafter comes from statements made by a juror during deliberations, and no one other than a juror heard those statements made? And what if those statements are compelling evidence that a juror intentionally lied during voir dire to conceal a bias like racial animus toward the defendant in a criminal prosecution? The Supreme Court acknowledged in the final footnote in Warger that such cases could produce entirely different results:
“There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process.”