## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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. P D

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T H O M A S M C Q U A R R I E , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E T H I R T E E N T H C O U R T O F A P P E A L S

G O N Z A L E S C O U N T Y

K E L L E R , P
. J
. , f

i l e d a d i s s e n t i n g o p i n i o n i n w h i c h C O C H R A N , J
. , j o i n e d
. The Court decide s that a juror’s internet rese arc h constituted an “outside influence ” for the purpose of deter

mining whether jurors could t estify about t he matter in a p ro ce ed i n g to challeng e the j u ry ’s verdic t. I disag ree , beca use t he tex t and backg round of the rule indicate that the phrase
“outside influence ” car

ries a narr ower meaning than g iven by the Court today

. I would hold that the
internet rese arc h in this case was not an outside influe nce be cause the information did not involve

a communication from a person outside the jury

. I would further hold that this construction does not violate appe llant’s constitutional rights.
A. Adm issib ility un der Rule 606(b)McQUA RRIE DISSE NT - 2

I n construing the meaning of a rule of evidenc e, an ap p el l ate court “should attempt to
eff ectua te the plain l an g uag e absent important counter vailing considerations.” The courts have 1

more flexibi lity in interpre ting court rules t h an i n construing statutes, and a court can look to

extratex tual fac tors even absent ambig uity in the lang uag e of the rule or absurd results flowing from a plain-me aning interpre tation. 2
The c urre nt version of Rule 606(b) , eff ective Ma rch 1, 1998, pr ovides: Up o n an inqui ry into the validi ty of a verdic t or i ndictment, a juror may not testif y as to any matter or statement occur ring during the jury ’s delibera tions, or to the eff ect of any thing on any juror’s mind or emotions or mental proce sses, as influencing any juror’s assent to or dissent from the verdic t or indictment. Nor may a juror’s aff idavit
or any statement by a juror conce rning any matter about which the juror would be prec luded from testify ing be admitted in eviden ce fo r any of these purposes. Howeve r, a juror may testify : (1) whet h er an y outside influence was improperly broug ht to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve. 3
The lang uag e of the rule imposes a broad prohibition ag ainst using juror testimony about
delibera tions to i mpeac h a ver dict, but the rule ne verthe less has limits. The rule does not prohibit juror testimony

about matters or

statements occ urring befor e deliber ations. The jury delibera tion 4

proce ss beg ins “af

ter the close of the evidenc e and the jury char g e, when the jury retire s to weig h the
evidenc e to arr ive at a verdic t.” And the prohibition in th e ru l e ap p l i es only to post-verdic t 5

Lopez v. State , 253 S.W .3d 680, 685 (Tex. Crim. App. 2008). 1
Id. 2
T E X

. R. E V I D . 606(b). 3 Golden Eagle Arc hery v . Jack son , 24 S.W .3d 362, 371 (Tex. 2000). 4
Id. 5McQUA RRIE DISSE NT - 3

testimony

. And even w ith r espec t to post-verdic t te stimony about delibera tions, the rule contains

6 two exceptions, the first of which—outside influe nce—is a t issue in this case
. I n construing the meaning of the “outside influence ” exception, it is nece ssary to addre ss the history of Rule 606(b)’ s development. The rule ag ainst using juror testimony to impeach the verdic t orig inated in Eng land with an opinion by L ord Mansfield in 1785. By the beg inning of the 7
twentieth centur

y , if not ear lier, “the near -universa l and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a

verdic t.” L ikewise,

8 “[e]arly Texas decisions followed the L ord Mansfield rule and flatly pro h i b i t ed jurors from impeaching the ver dict.” 9

I n the ear ly case of Mattox v. United States , the United States Supreme Court rec og nized an exception to the common-law rule for situations in which an “extraneous influence ” was alleg ed to
have aff ecte d the jury

. Early decisions of the Texas Supreme Court cre ated an exception that 1 0
allowed jurors to talk about “over t acts of misconduct,” and that exception had some basis in a 1 1
discussion from Mattox

. The “ overt a ct” r ule was c riticized, however , “bec ause of the difficulty 1 2

Id. at 375. 6
Tanner v. United States , 483 U.S. 107, 117 (1987); Golden Eagle Archery , 24 S.W .3d at 7 367.
Tanner , 483 U.S. at 117.

8 Golden Eagle Arc hery , 24 S.W .3d at 367. 9
Tanner , 483 U.S. at 117; Mattox v. U nited States , 146 U.S. 140, 149 (1892). 1 0 Golden Eagle Arc hery , 24 S.W .3d at 367. 1 1
See Mattox , 146 U.S. at 148 (quoting J ustice Br ewe r in Perry v. Bailey , 12 Kans. 539, 545 1 2 (1874))

.McQUA RRIE DISSE NT - 4

in dr awing a line betwee n acts a nd mental proc esses.” One c ommentator cla imed that the Texas 1 3
rule a llowed “a

far wider sc ope of inquiry

into the jury ’s deliber ations than any other state.” 1 4
When the Fe dera l Rules of Evidence wer e adopted in 1975, they included Rule 606(b), which provided: Upon an inquiry into the validi ty of a v erdict or i ndictment, a juror may not testify
as to any matter or statement occur ring during the course of the jury ’s delibera tions
or to the eff

ect of any

thing u p o n h i s o r any other juror’s mind or emotions as influencing him to a ssent to or dissent from the verdic t or indictment or conce rning his mental proce sses in connec tion ther ewith, exc ept that a juror may testify on the question whether extrane ous prejudicial information was improperly brought to the jury’s attention or wheth er any outside influence was improperly brought to bear upon a n y j u r o r

. Nor may his aff idavit or evidenc e of any statement by him
conce rning a matter about which he would be prec luded from testify ing be rec eived for these purposes. 1 5

As can be seen from its lang uag e, the fede ral rule co n t ai n ed t wo exceptions to the g ener al rule prohibiting juror testimony that impeache d the verdic t: one involving “extraneous prejudicia l
information” and the other involving “any outside influence .” The latter exception is contained in
the modern Texas rule, but the former is not. T h e repor t of the United States House J udiciary
Commi ttee explained that the fede ral rule wo u l d p er m i t a juror to testify “as to the influence of

extraneous prejudicia l information broug ht to t h e j u ry ’s attention (e.g

. a radio newsc ast or a
newspa per acc ount) or an outside influence which improperly had been broug ht to bear upon a juror

Golden Eagle Arc hery , 24 S.W .3d at 368. 1 3
Id

. (q u o t i ng 1 M C C O R M I C K & R A Y , T E X A S L A W O F E V I D E N C E § 1612 (Texas Practice 1 4 1980)).
F E D

. R. E V I D

. 606(b) ( 1975) (e mphasis added)

.

1 5McQUA RRIE DISSE NT - 5

(e.g

. a threa t to the safe ty of a member of his family ).” This passag e in the repor t sug g ests that the 1 6

“extraneous prejudicia l informat io n ” e xc e p ti o n was aimed at a juror’s acquisition of information that
did not involve a communication from a live person to the juror. The J udiciary Commi ttee g ave the examples of a juror rea ding the newspa per or listening to the radio, but other examples could include watching television or, as in the prese nt case , surfing the internet. By contra st, this passag e from the

repor t sug g ests that the “outside i n fl u en ce ” exception was aimed at a communication from a live person to the juror

about the ca se.
I n 1983, the Texas Supreme Court adopted a version of Rule 606(b) in its rules of civil
evidenc e. The Texas civil rule was identical to the fede ral rule except that it omitted the “extraneous prejudicia l information” ex ception. The Tex as S upreme Court “did not explain the significa nce 1 7
of its decision to re

j ect an exception for extraneous prejudicia l information.” One scholar 1 8

sug g ested that the omission si g nified that the Te x as civil rule wa s more re strictive than it s fede ral

counter part, while another scholar sug g ested that the fede ral exceptions for “extraneous prejudicia l
information” a

nd “outside influenc es” w ere larg ely redunda nt. 1 9

Our state co urts of appeals came down on the s ide of construing the Tex as civil rule more
restric tively , by co nstruing the “outside influence ” exception as not encompa ssing the ty pes of

House Comm. on J udiciary , F E D

. R. E V I D ., H.R. Rep. No. 650, 93d Cong., 1 Sess., p. 9 1 6 st (1973).
See T E X

. R. C I V

. E V I D

. 606(b) ( 1997); Golden Eagle Arc hery , 24 S.W .3d at 368.

1 7 Golden Eagle Arc hery , 24 S.W .3d at 368. 1 8
Id. (citing Addison, Conduct Unbec oming a Jury: Rule 606( b) , 50 T E X

. B A R J

. 872, 872 1 9 (1987) (more restric t i v e) and Bla ck, Article VI: W itnesses , 20 H O U S

. L

. R E V

. 409, 423 (1983) (re dundant)).McQUA RRIE DISSE NT - 6

situations that the House J udiciary Commi ttee sugg ested were cover ed by the fe dera l “extraneous prejudicia l information” exception. Wh i l e t h e fede ral rule appea rs to contemplate and has been
construed to permit juror t es t i m o n y about a juror’s reliance upon a newspaper article , the Tex as 2 0
civil rule has been interpre ted more restric tively

. Four state courts of appea ls—in Hous ton, San Antonio, and Corpus Christi—have held that the jurors’ discussion o f a newspa per or mag azine
article did not constitut e an “outside influence .” These courts rea soned that an outside influence 2 1

“must emana te from outside the jury and its delibera tions,” and these courts have expressed a 2 2

narr ow view of what emana ted from outside the jury

. Acc ording to the Four teenth Court, in Baley , “outside influence

. . . does not include all information not in evidenc e, unknown to the jurors prior

to trial, acquir ed by a jur o r an d co m m u n icated to one or more other jurors betwee n the time the jurors rec eived their instructions from the court and the rendition of the verdic t.” The Baley court 2 3
further expounded, “I nformation g ather ed by a juror and int ro d u ce d t o other jurors by that juror—eve n if it wer e introduced specific ally to prejudice the vote—doe s n o t constitute outside
influence .” The vie ws ex p re s s ed in Baley wer e later echoe d in the Perry opinion from the First

2 4

See House Comm. on J udiciary , H.R. Rep. No. 650, p. 9; Pev eto v. Sears , 807 F.2d 486, 2 0 489 (5 Cir. 1987); United States v. Straach , 987 F.2d 232, 241 (5 Cir. 1993); Gall v. Parker , 231

t h t h F.3d 265, 333 ( 6 Cir. 2000). See also Mattox , 146 U.S. at 150. t h Baley v . W

/W Interests , 754 S.W .2d 313, 315-16 (Tex. App.–Houston [14 Dist.] 1988, 2 1 t h writ denied) (new spaper article ); Merc y Hospital of

Laredo v. Rios , 776 S.W .2d 626, 629-30 (Tex. App.–San Antonio 1989, writ denied) (same) ; King v. Bauer , 7 6 7 S.W .2d 197, 198 (Tex. App.–Corpus Christi 1989, writ denied) (same) ; Perry v. Safeco Ins. Co. , 821 S.W .2d 279, 281 (Tex. App.–Houston [1 Dist.] 1991, writ denied) (mag azine article ). st Baley , 754 S.W .2d at 316; King , 767 S.W .2d at 198; Perry , 821 S.W .2d at 281. 2 2 Baley , 754 S.W .2d at 316. 2 3
Id. 2 4McQUA RRIE DISSE NT - 7

Court of Appea ls and in opinions from the appellate courts in Corpus Christi, Austin, and El Paso. 2 5

Meanw hile, in 1986, we enac ted our own rules of ev i d en ce, which contained a differ ent
version of Rule 606(b). Our Rule 606(b) was internally contra dictory —it contained th e orig inal lang uag e of the fede ral rule limit ing juror testimony , but the fede ral exceptions wer e repla ced with

an exception that swallowed the rule: “except that a juror may testify as to any matter rele vant to the

v al i d i t y of the verdic t or indictment.” I n Buentello v. State , we g ave eff ect to the “broad , al l

2 6

encompa ssing” lang uag e of this so-ca lled exception to allow juror testimony on any matter rele vant to the validity

of the ve rdict. 2 7

But that chang ed in 1998, with the merg er of the civil and criminal rules into a single set of
rules of evidenc e. Wit h one added exception not rele vant here , the new (and curr ent) version of Rule 606(b) is the rule from the civil side of our court sy stem. That chang e was intentional. And though opinions from the courts of appea ls are not binding upon us, those opinions that exis ted at the time

we a dopted the rule deser ve spec ial considera

tion.
As we have discussed alre ady , those opinions, based larg ely on Baley , construed the Texas
civil rule more restric tively than its fede ral counter part. Appellant contends that Baley is flawe d and
should be disreg arde d. He first arg ues that the Supreme Court of Texas has reje cted B a l ey ’s
definition of “deliberations.” That i s true, but irrele vant. The definition of “delib er at i o n s ” wa s a

Perry , 821 S.W .2d at 281 (quoting Baley ); Soliz v. Saenz , 779 S.W .2d 929, 931-32 (Tex. 2 5 App.–Corpus Christi 1989, writ denied) ; N el s o n v. Clements , 831 S.W .2d 587, 591 (Tex. App.–Austin 1992, writ denied)

. Durbin v. Dal-Briar Corp. , 871 S.W .2d 263, 272 (Tex. App.–El Paso 1994, writ denied)

.

See T E X

. R. C R I M

. E V I D . 606(b) ( 1996). 2 6
826 S.W .2d 610, 613 (Tex. Crim. App. 1992). 2 7McQUA RRIE DISSE NT - 8

separ ate aspec t of

the discussion in Baley from the mea ning of “outside influenc e”: first the Baley

court had to decide whether discussions occur ring befor e the jury char g e was re ad co n stitut ed
“deliber ations,” and then, if so, the court had to decide whether an outside influence intruded upon
those discussions. The Supreme Court’s reje ction of Baley ’s definition of “deliber ati ons” say s 2 8 nothing about its view of Baley ’s definition of “outside influence .” Moreove r, though it did not expli citly adopt the specific statements in Baley reg arding the meaning of “outside influe nce,” the Supreme Court cited Baley with approva l in connec tion with its discussion of the “outside influence ”
issue. 2 9 Appellant also ar g u e s th a t we should disreg ard Baley beca use it is inconsistent with the Texas Supreme Court’s statement that “a juror could testify that another juror improperly viewed the scene
of the events g iving rise to the litigation.” Appellant contends that this “holding and the rea soning 3 0

on which it is based appea rs to support [hi s] contention that ‘outside influence ’ may , indeed, include
information obtained by a juror and rela y ed to other jurors.” But the Supreme Court’s statement was

not a holdi ng ; it was dictum

. The Golden Eagle Archery case did not i n v o l v e a juror viewing the

scene of the crime, nor did it involve any ty pe of juror investiga tion. And the Supreme Court did 3 1

not eng ag e in a rea soned discussion to support its dictum ; the statement was an offha nd illust ration
of the Supreme Court’s conclusion that “[a] juror may testify about jury misconduct provided it does

See B aley , 754 S.W .2d at 316. 2 8
See G olden Eagle Arc hery , 24 S.W .3d at 370. 2 9
See id. 3 0
See id. , passim

. 3 1McQUA RRIE DISSE NT - 9

not require delving into deliberations.” 3 2 Appellant further contends that Baley delivere d its holding “out of the blue,” that its holding

was not supported by the case s it cited, and that its holding was contra ry to the lang uag e of the rule,

as asser ted by the dissent. But the Baley h o l ding actua lly had roots in an ear lier case from the 3 3

Four teenth Court: Robinson Electric Supply Co. v

. Cadill ac Cable Corp. I t is true that Robinson 3 4
Electric Supply Co. dealt with a fac tually distinct situation—the jury ’s d ec i s i o n to consider and
calc ulate prejudg ment interest—that was not alleg ed to have resulted from any sort of investiga tion

or acquisition of information. But with respe ct to interpre ting identical lang uag e in Texas Rule of 3 5
Civil Procedur e 327(b) , the cour t of appe als said:

I mportant in interpre ting the Rule, howeve r, is the fac t that the Texas Supreme Court expressly deleted the proposal by the Rule’s dra fters in the L iaison Commi ttee that Rule 327(b) also allow testimony on whether “extraneous prejudicia l information
was improperly broug ht to the jury ’s attention.” [C itation omitted]. This inquiry is permitted by Fe dera l R u l e o f Evidence 606(b), and y et the Texas Supreme Court expressly chose to delete this appar ently mor e l i bera l test for jury misconduct and instead opted for

the more string ent “outside influenc e” te st. 3 6

I n another case , our Court has alre ady commented in passing that the fede ral rule “is more expansive than Texas Rule 606(b), beca use Fe dera l Rule 606(b) permits juro rs t o testify about

Id. at 370. Another state’s high court has expressed ambivalenc e on the matter, even under 3 2 broade r l ang uag e patterned after the fede ral rule, ci t i n g p o tentially conflicting case s on whether a juror’s visit to the crim e s ce n e constitutes extraneous prejudicia l information. W atkins v. Taylor Seed F arms , 295 Ark. 291, 293, 748 S.W.2d 143, 144 (1988).
See B aley , 754 S.W .2d at 320-21 (E llis, J ., dissenting)

. 3 3
706 S.W .2d 130 (Tex. App.–Houston [14t h Dist.] 1986, writ ref ’d n.r.e.) , cited in Baley , 3 4 754 S.W .2d at 316.

See R obinson Electric Supply Co. , 706 S.W .2d at 131-32. 3 5
Id. at 132-33. 3 6McQUA RRIE DISSE NT - 10

‘whe ther e x trane ous prejudicial infor mation was broug ht to the jury ’s attention.’” Observing the 3 7
differ ence betwee n the lang uag e of the two rules, the Fifth Circuit has rema rked that “[t] he prac tical
eff ect of this differ ence is not altog ether pellucid” but has noted the arg ument that “extraneous prejudicia l information” is a separ ate or broade r conce pt than “outside influence .” The case s cited 3 8 in suppor t of that arg ument involved “situations in which the jurors bring outside information into
delibera tions themselves” and usually involved “tests or experiments that jurors had conducte d
themselves to help them evalua te the evidenc e, juror visits to the scene of the alleg ed acc ident, and

so on.” And since our

adoption of the c ivil version of the rule, the pronounce ments made by the 3 9

Fo u rt eenth Court in Baley have been echoe d by other courts of appea ls, sometimes in crimi n al

case s. 4 0
The Court discounts the signific ant differ ence in the wording betwee n the fede ral and Texas
versions of Rule 606(b) as well as the historical backg round in w hich the Texas rule was adopted.
The Court sug g ests that it can do so beca use the signific ance of the d i ffe renc e in lang uag e was

Lucero v. State , 246 S.W .3d 86, 95 n.10 (Tex. Crim. App. 2008). 3 7
Salazar v. Dretke , 419 F.3d 384, 402 n.30 (5 Cir. 2005)(c iting United States v. Martinez- 3 8 t h Monciv ais , 14 F.3d 1030, 1036 n.3 ( 5 Cir. 1994)). See M artinez-Monciv ais , supra
. t h
Martinez-Monc ivais , supra
. 3 9
See Franks v. State , 90 S.W .3d 771, 799 (Tex. App.–For t Worth 2002, pet. ref

’d, untimely 4 0 filed) (“I t has often been held in the civil context that information g ather ed by a juror and introduced to the other jurors by that juror does not add up to ‘outside influence ,’ even if introduced specific ally to prejudice the vote.”) ; Hines v. State , 3 S.W .3d 618, 623 (Tex. App.–Texarkana 1999, pet. ref ’d) (“While case law has not clea rly identified what constitutes an outside influence , it has cl early reje cted cer

tain conduct as constituting outside influence

. . . . Thus, it has been held that information g ather ed by a juror and introduced to the other jurors by that juror does not amount to outside influence , even if introduced specific ally to prejudice the jurors’ votes.”); W illiams v. Viswanathan , 64 S.W .3d 624, 636 (Tex. App.–Amarillo 2001, no pet.).McQUA RRIE DISSE NT - 11

debate d in two law revie w article s. But whateve r dispute or uncer tainty there is or may

have been

among scholars or the fede ral courts about the meaning of the Texas rule, our own courts of appea ls

seem to be in ag ree ment: the term “outside influence ” does not encompa ss information g ather ing by

a juror that d o es n o t involve communicating with other people. Activities such as rea ding a
newspa per or rese arc hing on the internet, while cove red by the fede ral rule, are not c overe d by the

Texas rul e. Thoug h at least two out-of-state jurisdictions have held or sug g ested that internet

rese arc h constitutes an external matter to which a juror may testify , those jurisdictio n s h ave the
“ex t rane ous prejudicia l information” exception that is in the fede ral rule. Given the more 4 1
restric tive nature of the Texas rule, we should conclude , in line wit h t he views held by our state

courts of appea ls, that internet rese arc h does not constitute an outside influence so long as the juror
does not rec eive a

communication from a

person outside the jury . I n the present case , The juror’s
act of viewing a webpag e about the effec ts of date-ra pe drugs did not constitute a communication
from anothe r per son.
Be cause the juror did not re ceive a communication from a person outside the jury , I would
hold that the juror was not subject to an “outside influence .” Be cause the juror was not subject to 4 2

State v. Abdi , 2012 VT 4, 45 A.3d 29 (2012) (interne t rese arc h about Somali relig ion and 4 1 culture) ; Stephenson v. State , 742 N.E.2d 463, 477 (I nd. 2001) (obser ving that there was no evidenc e that the juror was exposed to outside influenc es, including “re sear ching on the I nterne t”); see also Mitchell v. State , 726 N.E.2d 1228, 1238 (I n d

. 2 0 0 0 ) (c iting I ndiana rule as including the “extraneous pr ejudicial informa tion” exception).

I re co gn i z e that communications from a person outside the jury are not limit ed to 4 2 fac e-to-f ace or contemporaneous contact. A communi cation can be c onvey ed over the t elephone , by mail, or over the internet. Such communication might include leaving a messag e on an answe ring machine, sending a letter, sending an email or instant messag e, or posting on a messag e board. But,
as with rea ding a newspa

per, viewing a webpa g e will not ordinarily co n s ti tute a communication from another person to the juror. I n an unusual case , a webpa g e could be a communication from another person to a juror if it was cre ated or modified with the purpose of communicati n g with a specificMcQUA RRIE DISSE NT - 12

an outside influenc e, her

testimony

was inadmissible under Rule 606( b).
B. Constitution ality of Ru le 606(b)

I n Tanner v. United States , the S u p re me Court upheld the constitutionalit y of the fede ral
version of Rule 606(b) when the trial judge excluded juror testimony about one of the jurors being
intox icated. The Court explained that “long -re cog nized and v e r y s ubstantial conce rns” supported 4 3 4 4
protec ting jury

delibera tions from post-verdict sc rutiny :
T h er e is littl e doubt that postverdict investiga tion into juror misconduct woul d i n some instances lead to the invalidation of verdic ts rea ched afte r irresp o n s ible or improper juror behavior

. I t i s not at all clea r, howeve r, that the jury sy stem could survive such eff

orts to perf

ect it. Alleg ations of juror misconduct, incompetenc y , or inattenti v en es s , raised for the first time day s, wee ks, or months afte r the verdic t, seriously disrupt the finality of the proc ess. Moreove r, full and f rank discussion in the jury room, juro rs ’ wi l l ingne ss to return an unpopular verdic t, and the community ’s trust in a sy stem that relies on the decisions of lay people would all be undermined by

a bar rag e of postver dict scrutiny of juror c onduct. 4 5
The Court f

urther found that a defe ndant’s Six th A mendment interests in a n unimpaired jury wer e “prote cted by sever al aspec ts of the trial proce ss.” First, the suitabilit y of an i n d i v i dual for jury 4 6
service could be examined in voir dire. Second, the jury can be observe d during trial by the court, 4 7 counsel, and court personne l. Third , “j u ro rs are observa ble by eac h other, and may repor t 4 8

juror about a case
. On t he other hand, a messag e boar d posting would not be a c ommunication to a juror if made by and for participa nts who were completely

unawa re of the juror a

nd the ca se. 483 U.S. at 126-27. 4 3
Id. at 127. 4 4
Id. at 120-21 (c itation and pare nthetical omitted). 4 5
Id. at 127. 4 6
Id. 4 7
Id. 4 8McQUA RRIE DISSE NT - 13

inappropria te juror behavior to the court before they rende r a verdic t. ” Finally , “af ter the trial a 4 9
party may seek to impeach the verdic t by nonjuror evidenc e of misconduct.” The Supreme Court 5 0
char acte rized “juror testimony as ‘one particu l ar kind of evidenc e inadmissible under the Fe dera l Rules,’” a nd held that a he aring to include that kind of evide nce w as unnec essar y
. 5 1

I n Golden Eagle Archery , the Texas Supreme Court upheld the const it u ti o n a li ty o f th e c u

r r ent
version of Texas Rule of E v i d en ce 606(b) when the trial judge excluded juror testimony about
undisclosed juror bias. L ooking to Tanner for g uidance , the Texas Supreme Court f ound sever al 5 2 applicable protec tions provided in Texas civil case s. First, litigants may question potential jurors 5 3

at voir dire, as well as exercise for- cause and pere mptory challeng es. Second, the trial judge can 5 4 question jurors during trial and “take corr ective measure s such as instru ct i n g the jury , dismiss ing particula r jurors, or decla

ring a mistrial.” Finally , the Texas Supreme Court observe d that Texas 5 5
rules conc erning

attorney s’ post-trial juror c ontact ar e more permissive than the f eder al rules. 5 6 Appellant co n t en d s t hat Golden Eagle Archery can be distinguished beca use there is no
constitutional rig ht of confr ontation in civil case s. But jurors are not “witnesses” in a classic sense,

Id. (empha sis in original). 4 9
Id. 5 0
Id. 5 1
24 S.W .3d at 374-75. 5 2
Id. at 375. 5 3
Id. 5 4
Id. 5 5
Id. 5 6McQUA RRIE DISSE NT - 14

“with cons equent automatic entailment of the confr ontation clause , whene ver a juror voices any

extra-re cord fac ts.” Fur thermore , Tanner was a criminal case , and though it addre ssed a differ ent 5 7
constitutional rig ht (to an unimpaired jury ), “ver y substantial conce rns” still apply when addre ssing irresponsible or

improper juror

behavior that involves jurors consider ing inf ormation that was not

prese nted at trial. These conce rns include (1) keeping jury delibera tions private to encour ag e candid
discussion of a case , (2) protec ting jurors from post-trial hara ssment or tampering , and (3) protec ting
the need for finality

. “As one authority explained, ‘[t] he question that has vexed courts for y ear s, 5 8
is how far can they g o in opening verdic ts to attack on such g rounds befor e the cure become s worse
than the disea se.’” The a nswer is, not fa

r at a ll. 5 9 6 0

I n any event, proce dural protec tions exis t to help safe g uard a defe ndant’s Co n fr o n t ati onClause interests. Potential jurors can be questioned and instructed reg arding internet rese arc h during
voir dire. The trial judge can instruct the jurors during trial and befor e delibera tions not to e ng ag e

United States ex

rel. Owen v. M

cMann , 435 F.3d 813, 818 n.5 ( 2 Cir. 1970). 5 7 n d Golden Eagle Arc hery , 24 S.W .3d at 366-67. 5 8
Id

. at 367 (citing 1 G O O D E E T A L ., G U I D E T O T H E T E X A S R U L E S O F E V I D E N C E : C I V I L A N D 5 9 C R I M I N A L , § 606.02 (Texas Practice 1993)).

I n a concur

ring opin i o n in Golden Eagle Archery , J ustice Hec ht would extend the 6 0 prohibition ag ainst juror questioning in civil case s to any questioning that occur s afte r delibera tions have be g un. Although I

do not find that sort of extension to be a ppropriate for c riminal case s, the policy rea sons he cites cer tainly apply with even g rea ter forc e to our more limit ed rule:“[T]o allow one juror to attack another juror’s .

. . conduct is too g rea t an encoura g ement of post-trial trials of the jury ” and pose s “a signific ant burde n on citizens who give of their time to serve as jurors with littl e benef

it to the proce ss. J urors come to decide disputes, not to be draw n into them.” 24 S.W .3d at 376 (He cht, J . concur

ring ).McQUA RRIE DISSE NT - 15

in internet re sear ch. Fur ther, a juror’s use of interne t resea rch c an be br oug ht to the trial judge ’s 6 1
attention befor e verdic t, and the trial judge can take reme dial act i on, which could include issuing
further instructions, dismiss ing a juror, or even decla ring a mistrial. Given the available proce dural
protec tions a

nd the weig hty interests that favor insulating the jurors’ delibera tions fr om sc rutiny , I

co n cl u d e, and would hold, that Texas Rule of Evidence 606(b) does not violate a defe ndant’s constitutional right of c onfrontation.

I respe ctfully

dissent.
Deliver ed: Octobe r 10, 2012 Publis h

See Abdi , 2012 Vt. at P25, 45 A.3d at 38 (“[I ]t may well be time to consider a strong er and

6 1 more tec hnology

specific admonition” reg arding rese arc h on the interne t.).