Dean Gold Op-ed Explores High Court Ruling on Juror Testimony

By 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.

Multiple Choice Exams are (a) good assessment tools, (b) bad assessment tools, (c) all of the above.

By Associate Professor Kevin Lapp

This post originally appeared on EvidenceProf Blog.

Multiple choice testing is a popular assessment format in Evidence courses, more popular in my experience in Evidence than in other courses. Some professors use it exclusively, while others mix multiple-choice testing with essay questions on their exams. There's good reason for using multiple choice testing in Evidence courses. For one, the MBE portion of the bar exam contains multiple choice Evidence questions, so doing so as part of a final exam helps prepare students for the bar exam format. In addition, multiple choice testing has been around, and is widely accepted as a credible format to assess student knowledge. Evidence is also a heavily rule-based class that lends itself to an assessment format that requires students to identify a single correct answer. Finally, multiple choice questions allow professors to assess more topics than can be squeezed into an essay question, reducing the chances that a student performs well on an exam because he happened to know the issues covered by the essay questions.

But there can be a large gap between good multiple choice questions and bad multiple choice questions. This post is about how those of us who do use multiple choice questions can know if we are doing it in a way that makes for good assessment. The credibility of our multiple choice questions as sound assessment tools is particularly important given the high stakes testing that goes on in so many law school classrooms. When the great bulk, if not the entire portion, of a student's grade hinges on a single 3 or 4 hour exam, it is our duty to take advantage of the available tools to ensure that our exams function as credible assessment tools.

In Teaching Evidence, Making the Case for Cases

By Associate Professor Kevin Lapp

I've previously stated my enthusiasm for the problem-based approach to teaching evidence. Embracing the use of problems necessarily means that my students are not reading a lot of cases. Indeed, the textbook that I use has only a few case excerpts that are longer than a paragraph, and does not contain a single case that is reproduced in its entirety. Despite my preference for using problems, I recognize that there are drawbacks to not assigning cases for reading. In this post, therefore, I want to push back against myself a bit and make the case for using judicial opinions in Evidence class.

First, though, a few brief thoughts on what I like about problems. One distinct advantage is that problems are shorter than judicial opinions. Instead of procedural history, or factual recitations, or statements of the governing law, problems get right to work, providing students with all the information that I want them to have in order to focus their attention on the things I want them to focus on (and nothing more). It's much cleaner to have a crafted problem that is one paragraph long than it is to have a 2 page case that includes facts that aren't relevant or important to the rule that the case discusses. Another advantage is that I craft problems that allow me to change the facts very easily to illustrate the critical elements and nuances of a particular rule's application. With cases, the fact set-up is often messier, and it can be harder to offer simple factual adjustments that might change the result or bring into play a particular foundational element of hearsay exception. Finally, presenting the students with problems, instead of cases, allows me to treat the material as a puzzle to be solved (as compared to judicial opinions, which are puzzles already solved).

But there are downsides to teaching by problems. Perhaps the biggest one I've identified thus far is that my students do not get the benefit of reading a judge's organized analysis of a particular legal issue. For all their warts (which themselves can be teaching tools), judicial opinions provide models for legal analysis. They typically start with the facts, outline the relevant law (including its rationale), and then apply the specific words of the law and the underlying rationales to the facts. It's often exactly what I want my students to learn how to do. And while our class discussions about problems involve the students identifying the relevant rule and its elements, and then making arguments about the proper application of the law to the facts, the result is rarely so clean. A student may jump right to the conclusion without explaining how she got there, a student may begin with a justification (I think it should be kept out because it's not reliable) without deciding whether it was even admissible, or a student may fumble with the specifics of the applicable rule. There are, of course, teaching techniques to deal with these situations, if not reduce their occurrence. But the legal analysis we conduct in class for a problem is rarely as organized as a judicial opinion.

And that's the biggest advantage I'm discovering to using judicial opinions. Having the students state and apply the law without reading cases leaves students without models for good legal analysis. Because good legal reasoning (be it writing or oral advocacy) comes not just from practice with problems, but also from reading and hearing good examples of legal analysis, one big benefit of assigning judicial opinions is that the students are able to see an organized application of a given rule to a set of facts. That this is done as the students are first getting to know the terms of a particular rule and its rationale has me convinced that reading cases is even more valuable.

There are plenty of others benefits to using cases, such as allowing me to introduce the students to individual judges (and thus remind them that the law is applied by humans who had prior experiences before they came to the bench, and who decided other cases, etc., etc.) and giving them authority that they can reference throughout the semester.

The upshot of this is that I've found myself slowly gathering case excerpts and assigning them as supplemental reading, not because I think the factual scenarios of the cases provide particularly excellent starting points for learning the rules (I almost universally think that my problems are more finely tuned as instruments of teaching the content of the law) but because I am recognizing the benefit that my students get from the example of the judge's analysis.

One question that lingers - is it better to have the students read 3-4 short cases, or 1 case with a richer discussion/analysis? Would it be better to find cases that I can assign in their entirety, or are case excerpts acceptable? As always, your insights are welcome.

The Importance of Writing Assignments in Evidence Courses

By Associate Professor Kevin Lapp

This is one of a series of guest posts on teaching Evidence at EvidenceProf Blog.

As I said before, Evidence strikes me as an ideal second-year course to incorporate skills exercises into the curriculum, so that students don't just learn the rules, but learn how practicing lawyers prepare for and resolve Evidence law issues. Aided by the problem-based approach of many Evidence textbooks, it's quite easy in the classroom to provide students with the facts of a case and some proposed testimony and to then have one or more students argue for the admissibility of the testimony while others argue for exclusion. This gets them to do the important work of applying the rule they've just learned, has the benefit of them doing so while in role as a lawyer with a particular goal, and ensures that they hear and consider both sides of the issue.

Yet, while many evidentiary issues arise in the middle of witness testimony, and require the quick-thinking objections and oral argument skills that can be developed via classroom discussion or exercises, a lot of evidentiary issues are resolved pretrial via motions in limine. And it is quite a challenge to include legal writing exercises in the Evidence course curriculum for a host of reasons. But I think it is a challenge that deserves to be confronted and overcome. Simply put, no student should leave an Evidence course without having drafted a short motion in limine.
There are several reasons for including a motion in limine assignment (beyond the fact that they are a important component of actual practice).

With Evidence, Balancing Coverage and Class Time

By Associate Professor Kevin Lapp

This is one of a series of guest posts on teaching Evidence at EvidenceProf Blog.

A comment by Frederick Moss to a prior post raised the important question of coverage in an Evidence course. Even for those with the luxury of 4 credit hours each week, there simply isn't enough class time to cover the material and accomplish all that might be accomplished in a law school course.  I'm happy to entertain thoughts on what content gets bumped when the clock is running out - burdens of proof; trial mechanics; the best evidence rule; authentication; scientific evidence. Personally, I haven't yet found room for a one-hour lesson on the limits of eyewitness testimony, which I would love to add to my course.

But coverage is not just a content issue. As the push for more practical training continues (a push I endorse), there is no reason for doctrinal courses to ignore practice skills. Indeed, in these leaner times, doctrinal courses may be the best place to insert practical training into the curriculum. And in my mind, the Evidence course is a perfect place for law school to include lawyering skills alongside the learning of fundamental doctrine. I'm trying to incorporate some skills mini-exercises throughout my course (such as in-role oral arguments in class, and short writing assignments akin to motions in limine), but making time for those requires bumping topics that I already decided couldn't get bumped.

You've got mail--but no privilege

By Dean Victor J. Gold

Evidentiary privileges protecting communications with your lawyer, spouse, doctor, clergy, psychotherapist, and others apply only if you intended those communications to be confidential. But be wary of sending any of these folks an email from your work computer or a smartphone supplied by your employer. A recent decision by the California Court of Appeals suggests that communications to and from such devices are not privileged.

In Holmes v. Petrovich Development Company, ---Cal.Rptr.3d---, 2011 WL 117230 (Cal.App.3d, 2011), an employee brought a wrongful termination action against her employer. During her deposition, plaintiff was questioned by the company about emails she sent to her lawyer using the company's computers. She objected, claiming that the emails were protected by the attorney-client privilege. The trial court overruled her objection, and the Court of Appeals agreed, holding that the employee did not intend the emails to be confidential since (1) the computer on which they were sent belonged to the company, (2) the company advised its employees that emails might be monitored, and (3) the employee knew of this policy and agreed to it. The Court of Appeals rejected as immaterial the employee's understanding that the company did not, in fact, monitor employee emails, reasoning:

Just as it is unreasonable to say a person has a legitimate expectation that he or she can exceed with absolute impunity a posted speed limit on a lonely public roadway simply because the roadway is seldom patrolled, it was unreasonable for [the employee] to believe that her personal e-mail sent by company computer was private simply because, to her knowledge, the company had never enforced its computer monitoring policy.

For two reasons, the scope of this ruling is broader than might first appear. First, plaintiff did not lose her privilege because she was using a computer that happened to be owned by the very company who was to become her opponent in the lawsuit. Under the court's reasoning, confidentiality would have been lost even if her employer had nothing to do with the lawsuit. Holmes relies on section 952 of the California Evidence Code, which defines "confidential communication" between client and lawyer as one that is transmitted "by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation." Thus, there is no confidential communication even if the employer that owns the computer is just a disinterested third person. Second, the circumstances faced by the employee in Holmes are commonplace. Many, if not most, employers advise employees that emails sent from employer-owned devices may be monitored. This is because employers want to discourage personal use of company property and want to ensure that they retain the ability to police for serious abuses, such as the use of company computers for illegal purposes. But as in Holmes, most employers do not regularly monitor employee email because serious abuses are uncommon and the cost of regular monitoring is high. Most employees are aware there is no regular monitoring of their work devices and, consequently, use them both for work and personal purposes. This includes sending and receiving communications that employees expect are confidential. Holmes undermines this expectation.

The reasoning of the Holmes decision is questionable, based on a misleading analogy to the motorist who exceeds the speed limit on an unpatrolled roadway. In the case of the motorist, the pertinent legal question is only whether she exceeded the speed limit--her expectations concerning the chances of being caught are no defense. But in the case of a confidential communication privilege, the expectations of the client, spouse, patient, and penitent are key. If she had a reasonable expectation of confidentiality, the privilege applies. What is reasonable becomes, as always, a matter of weighing the applicable facts and circumstances. Those should include not just the fact that an email could be monitored, but also the chances that it would be. It seems likely that most employees would be surprised to learn that they cannot send a confidential communication to their spouse, lawyer, or doctor with an employer-supplied device.

Confidential communication privileges exist to foster relationships thought vital to society. Because the pertinent circumstances of Holmes are so common in the modern workplace, that decision poses a significant challenge to the efficacy of those privileges.