b'\x0cEvidence:\n\nJury Impeachment\n\nColin Miller\n\nCALI eLangdell\xc2\xae Press 2012\n\n\x0cNotices\nThis work by Colin Miller is licensed and published\nby CALI eLangdell Press under a Creative\nCommons Attribution-NonCommercial-ShareAlike 3.0 Unported\nLicense. CALI and CALI eLangdell Press reserve under copyright all\nrights not expressly granted by this Creative Commons license. 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The cover art design is a copyrighted work of CALI, all\nrights reserved. The CALI graphical logo is a trademark and may not\nbe used without permission.\nShould you create derivative works based on the text of this book or\nother Creative Commons materials therein, you may not use this\nbook\xe2\x80\x99s cover art and the aforementioned logos, or any derivative\nthereof, to imply endorsement or otherwise without written\npermission from CALI.\n\nii\n\n\x0cThis material does not contain nor is intended to be legal advice.\nUsers seeking legal advice should consult with a licensed attorney in\ntheir jurisdiction. The editors have endeavored to provide complete\nand accurate information in this book. However, CALI does not\nwarrant that the information provided is complete and accurate.\nCALI disclaims all liability to any person for any loss caused by errors\nor omissions in this collection of information.\n\niii\n\n\x0cAbout the Author\nProfessor Miller teaches Evidence, Criminal Procedure, Criminal\nLaw, and Civil Procedure. He is the creator and Blog Editor of\nEvidenceProf Blog, a member of the Law Professor Blogs Network.\nHe is the Editor of Illinois Criminal Procedure and drafted a 100\npage report comparing the Federal Rules of Evidence to Illinois\nevidentiary principles, which was used in the creation of the first\nIllinois Rules of Evidence.\nProfessor Miller received his B.A. degree with distinction from the\nUniversity of Virginia and his J.D. (Order of the Coif) from the\nWilliam & Mary Law School.\n\n\x0cAbout CALI eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a\nnonprofit organization with over 200 member US law schools, an\ninnovative force pushing legal education toward change for the\nbetter. There are benefits to CALI membership for your school, firm,\nor organization. eLangdell\xc2\xae is our electronic press with a mission to\npublish more open books for legal education.\nHow do we define "open?"\n\xef\x82\xb7\xef\x80\xa0 Compatibility with devices like smartphones, tablets, and ereaders; as well as print.\n\xef\x82\xb7\xef\x80\xa0 The right for educators to remix the materials through more\nlenient copyright policies.\n\xef\x82\xb7\xef\x80\xa0 The ability for educators and students to adopt the materials\nfor free.\nFind available and upcoming eLangdell titles at elangdell.cali.org.\nShow support for CALI by following us on Facebook and Twitter,\nand by telling your friends and colleagues where you received your\nfree book.\n\n\x0cTable of Contents\nNotices ........................................................................................ ii\nAbout the Author ........................................................................iv\nAbout CALI eLangdell Press ......................................................v\nTable of Contents .......................................................................vi\nPreface ...................................................................................... vii\nJury Impeachment Chapter ......................................................... 1\nI. The Rule.................................................................................... 1\nII. Historical Origins ....................................................................3\nIII. The Drafting of Federal Rule of Evidence 606(b) .................4\nIV. Public Policy Underlying Federal Rule of Evidence 606(b) ..5\nV. Supreme Court Precedent ........................................................5\nNotes ........................................................................................................ 13\n\nVI. 606(b): The External/Internal Distinction .......................... 14\nA. 606(b)(2)(A): Extraneous Prejudicial Information ...................... 16\nB. 606(b)(2)(B): Improper Outside Influences .................................. 18\nC. 606(b)(2)(C): Mistake in Entering the Verdict on the Verdict\nForm......................................................................................................... 20\n\nVII. Situations Where Rule 606(b) Does Not Apply .................. 21\nA. Testimony by Nonjurors ................................................................. 21\nB. Juror Testimony Not Offered to Impeach a Verdict .................. 22\n\nVIII. Splits in Authority .............................................................. 24\nA. States without Counterparts to Rule 606(b) ................................. 24\nB. Minnesota\xe2\x80\x99s Violence Exception to Rule 606(b) ......................... 24\nC. Testimony About the Effect on Deliberations of Extraneous\nPrejudicial Information/Improper Outside Influences ................... 25\nD. Allegations of Juror Racial, Religious, or Other Bias When\nJurors Are Not Questioned Regarding Bias on Voir Dire ............... 26\n\nIX. Jury Impeachment Pleadings ............................................... 27\n\nvi\n\n\x0cPreface\nThe anti-jury impeachment rule, contained in Federal Rule of\nEvidence 606(b) and state counterparts, is a rule preventing the\nadmission of jury testimony or statements in connection with an\ninquiry into the validity of the verdict, subject to certain exceptions.\nThrough a series of cases and hypotheticals drawn from actual cases,\nthis chapter gives readers a roadmap for how to address any jury\nimpeachment issue in practice.\n\n\x0cJury Impeachment Chapter\nI. The Rule\nFederal Rules of Evidence. Rule 606.\nJuror\xe2\x80\x99s Competency as a Witness\xe2\x80\xa6.\n(b) During an Inquiry into the Validity of\na Verdict or Indictment.\n\nProhibited Testimony or Other\nEvidence. During an inquiry into the validity\n(1)\n\nof a verdict or indictment, a juror may not\ntestify about any statement made or incident\nthat occurred during the jury\xe2\x80\x99s deliberations;\nthe effect of anything on that juror\xe2\x80\x99s or\nanother juror\xe2\x80\x99s vote; or any juror\xe2\x80\x99s mental\nprocesses concerning the verdict or\nindictment. The court may not receive a\njuror\xe2\x80\x99s affidavit or evidence of a juror\xe2\x80\x99s\nstatement on these matters.\n(2) Exceptions. A juror may testify about\nwhether:\n(A) extraneous prejudicial information was\nimproperly brought to the jury\xe2\x80\x99s attention;\n(B) an outside influence was improperly\nbrought to bear on any juror; or\n(C) a mistake was made in entering the\nverdict on the verdict form.\nFED. R. EVID. 606(b).\nIn 2009, the Committee on Rules of Practice and Procedure of the\nJudicial Conference of the United States Courts decided to \xe2\x80\x9crestyle\xe2\x80\x9d\nthe Federal Rules of Evidence. The goal in this project was to make\nthe Rules more user friendly rather than to enact substantive changes.\nBelow is a side by side comparison of the current Rule 606(b) and the\n\xe2\x80\x9crestyled\xe2\x80\x9d Rule 606(b). Because the changes were intended to be\nstylistic only, everything discussed in this chapter should continue to\n\n1\n\n\x0cbe good law after the \xe2\x80\x9crestyled\xe2\x80\x9d Rules take effect on December 1,\n2011.\nPrevious Rules Language\n\nRestyled Rules Language\n\n(b) Inquiry into validity of (b)During an Inquiry into the\nverdict or indictment. Upon\nValidity of a Verdict or\nan inquiry into the validity of a\nIndictment.\nverdict or indictment, a juror\n(1)Prohibited Testimony or\nmay not testify as to any matter\nOther Evidence. During\nor statement occurring during\nan inquiry into the validity\nthe course of the jury\xe2\x80\x99s\nof a verdict or indictment, a\ndeliberations or to the effect of\njuror may not testify about\nanything upon that or any other\nany statement made or\njuror\xe2\x80\x99s mind or emotions as\nincident that occurred\ninfluencing the juror to assent\nduring\nthe\njury\xe2\x80\x99s\nto or dissent from the verdict or\ndeliberations; the effect of\nindictment or concerning the\nanything on that juror\xe2\x80\x99s or\njuror\xe2\x80\x99s mental processes in\nanother juror\xe2\x80\x99s vote; or any\nconnection therewith. But a\njuror\xe2\x80\x99s mental processes\njuror may testify about (1)\nconcerning the verdict or\nwhether extraneous prejudicial\nindictment. The court may\ninformation was improperly\nnot receive a juror\xe2\x80\x99s\nbrought to the jury\xe2\x80\x99s attention,\naffidavit or evidence of a\n(2) whether any outside\njuror\xe2\x80\x99s statement on these\ninfluence\nwas\nimproperly\nmatters.\nbrought to bear upon any juror,\nor (3) whether there was a\n(2) Exceptions. A juror may\nmistake in entering the verdict\ntestify about whether:\nonto the verdict form. A juror\xe2\x80\x99s\n(A) extraneous prejudicial\naffidavit or evidence of any\ninformation\nwas\nstatement by the juror may not\nimproperly brought to\nbe received on a matter about\nthe jury\xe2\x80\x99s attention;\nwhich the juror would be\nprecluded from testifying.\n(B) an outside influence\nwas\nimproperly\nbrought to bear on any\n\n2\n\n\x0cjuror; or\n(C) a mistake was made in\nentering the verdict on\nthe verdict form.\n\nII. Historical Origins\nExcerpt from Colin Miller, Dismissed with Prejudice: Why Application of\nthe Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other\nBias Violates the Right to Present a Defense, 61 BAYLOR L. REV. 872\n(2009)\nPrior to 1785, English courts \xe2\x80\x9csometimes received\xe2\x80\x9d post-trial\njuror testimony and affidavits concerning juror misconduct,\n\xe2\x80\x9cthough always with great caution.\xe2\x80\x9d In that year, English\nChief Justice Lord Mansfield decided Vaise v. Delaval, I.T.R.\n11, where he was confronted with post-trial affidavits by\njurors indicating that \xe2\x80\x9cthe jury being divided in their opinion,\nhad tossed up,\xe2\x80\x9d i.e., resolved the case by \xe2\x80\x9cflipping a coin or\nsome other method of chance determination.\xe2\x80\x9d Mansfield\ndeemed the affidavits inadmissible by applying the thenpopular Latin maxim, nemo turpitudinem suam allegans audietur (a\n\xe2\x80\x9cwitness shall not be heard to allege his own turpitude\xe2\x80\x9d).\nAccording to Mansfield, jurors were not competent to\nimpeach their own verdicts, and thus themselves, because \xe2\x80\x9ca\nperson testifying to his own wrongdoing was, by definition,\nan unreliable witness.\xe2\x80\x9d Vaise thus became the basis for\n\xe2\x80\x9cMansfield\'s Rule,\xe2\x80\x9d \xe2\x80\x9ca blanket ban on jurors testifying against\ntheir own verdict,\xe2\x80\x9d although, according to Mansfield, posttrial testimony concerning jury misconduct could be\nadmissible if it came from another source, \xe2\x80\x9csuch as from\nsome person having seen the [deliberations] through a\nwindow, or by some such other means.\xe2\x80\x9d\n***\n\n3\n\n\x0cBased upon \xe2\x80\x9cthe prestige of the great Chief Justice,\n[Mansfield\'s Rule] soon prevailed in England, and its\nauthority came to receive in this country an adherence almost\nunquestioned\xe2\x80\x9d until the latter half of the nineteenth century.\nThe first major U.S. opinion challenging Mansfield\xe2\x80\x99s Rule was Wright\nv. Illinois & Mississippi Telegraph Co., 20 Iowa 195 (Iowa 1866), an 1866\nopinion in which the Supreme Court of Iowa found that a trial court\nerred by refusing to consider four juror affidavits alleging an illegal\nquotient verdict, i.e., that their \xe2\x80\x9cverdict was determined by each juror\nmarking down such sum as he thought fit, and dividing the aggregate\nby twelve and taking the quotient as their verdict.\xe2\x80\x9d In the years after\nWright created the \xe2\x80\x9cIowa Rule,\xe2\x80\x9d as it became known, state courts\ncreated new formulations of and variations on Mansfield\xe2\x80\x99s Rule. In\n1915, however, in McDonald v. Pless, 238 U.S. 264 (1915), the United\nStates Supreme Court\xe2\x80\x99s last significant opinion on jury impeachment\nbefore the drafting of the Federal Rules of Evidence, the Court\ndeemed juror testimony regarding an alleged quotient verdict\ninadmissible. The Court noted that it had to \xe2\x80\x9cchoose between\nredressing the injury of the private litigant and inflicting the public\ninjury which would result if jurors were permitted to testify as to\nwhat had happened in the jury room\xe2\x80\x9d and deemed the failure to\nredress the former injury \xe2\x80\x9cthe lesser of two evils.\xe2\x80\x9d\nIII. The Drafting of Federal Rule of Evidence 606(b)\nIn 1969, the Advisory Committee\'s first draft of what would become\nFederal Rule of Evidence 606(b) merely precluded jurors from\nimpeaching verdicts through testimony \xe2\x80\x9cconcerning the effect of\nanything upon his or any other juror\'s mind or emotions as\ninfluencing him to assent to or dissent from the verdict or indictment\nor concerning his mental processes in connection therewith.\xe2\x80\x9d Citing\nto the Iowa Rule, the Committee indicated that its proposed Rule\npermitted \xe2\x80\x9cimpeachment concerning the existence of conditions or\noccurrences, \xe2\x80\x98without regard to whether the happening [wa]s within\nor without the jury room.\xe2\x80\x99\xe2\x80\x9d In 1971, however, the proposed Rule was\nhastily rewritten so that it also precluded jury impeachment regarding\n\n4\n\n\x0c\xe2\x80\x9cany matter or statement occurring during the course of the jury\'s\ndeliberations....\xe2\x80\x9d\nThe House rejected this new draft while the Senate endorsed it.\nEventually, the Senate and House Committees resolved the dispute in\nthe Senate\xe2\x80\x99s favor. The Senate version did allow jurors to impeach\ntheir verdicts through testimony concerning \xe2\x80\x9cwhether extraneous\nprejudicial information was improperly brought to the jury\'s attention\nand on the question whether any outside influence was improperly\nbrought to bear on any jurors.\xe2\x80\x9d Most states have counterparts to\nFederal Rule of Evidence 606(b) that generally preclude jury\nimpeachment, subject to the above two exceptions.\nIV. Public Policy Underlying Federal Rule of Evidence 606(b)\nThe Advisory Committee\'s Note to Federal Rule of Evidence 606(b)\nrecognized three main values that are promoted by a rule that\ngenerally precluded jury impeachment:\n\xef\x82\xb7\n\nsafeguarding the stability and finality of verdicts;\n\n\xef\x82\xb7\n\npreventing the harassment of former jurors by losing parties\nas well as the possible exploitation of disgruntled or\notherwise badly motivated ex-jurors; and\n\n\xef\x82\xb7\n\nprotecting the freedom of discussion and deliberation.\n\nV. Supreme Court Precedent\nExcerpt from Tanner v. United States, 483 U.S. 107 (1987)\nJUSTICE O\'CONNOR delivered the opinion of the Court.\nPetitioners William Conover and Anthony Tanner were\nconvicted of conspiring to defraud the United States\xe2\x80\xa6and of\ncommitting mail fraud\xe2\x80\xa6.The United States Court of Appeals\nfor\nthe\nEleventh\nCircuit\naffirmed\nthe\nconvictions\xe2\x80\xa6.Petitioners argue that the District Court erred\nin refusing to admit juror testimony at a post-verdict hearing\non juror intoxication during the trial; and that the conspiracy\ncount of the indictment failed to charge a crime against the\nUnited States. We affirm in part and remand.\n\n5\n\n\x0c\xe2\x80\xa6.\nI.\n.\xe2\x80\xa6The day before petitioners were scheduled to be\nsentenced, Tanner filed a motion, in which Conover\nsubsequently joined, seeking continuance of the sentencing\ndate, permission to interview jurors, an evidentiary hearing,\nand a new trial. According to an affidavit accompanying the\nmotion, Tanner\'s attorney had received an unsolicited\ntelephone call from one of the trial jurors, Vera Asbul\xe2\x80\xa6.\nJuror Asbul informed Tanner\'s attorney that several of the\njurors consumed alcohol during the lunch breaks at various\ntimes throughout the trial, causing them to sleep through the\nafternoons\xe2\x80\xa6.The District Court continued the sentencing\ndate, ordered the parties to file memoranda, and heard\nargument on the motion to interview jurors. The District\nCourt concluded that juror testimony on intoxication was\ninadmissible under Federal Rule of Evidence 606(b) to\nimpeach the jury\'s verdict. The District Court invited\npetitioners to call any nonjuror witnesses, such as courtroom\npersonnel, in support of the motion for new trial. Tanner\'s\ncounsel took the stand and testified that he had observed one\nof the jurors \xe2\x80\x9cin a sort of giggly mood\xe2\x80\x9d at one point during\nthe trial but did not bring this to anyone\'s attention at the\ntime\xe2\x80\xa6.\nEarlier in the hearing the judge referred to a conversation\nbetween defense counsel and the judge during the trial on the\npossibility that jurors were sometimes falling asleep. During\nthat extended exchange the judge twice advised counsel to\nimmediately inform the court if they observed jurors being\ninattentive, and suggested measures the judge would take if\nhe were so informed\xe2\x80\xa6.\n\xe2\x80\xa6.\nAs the judge observed during the hearing, despite the above\nadmonitions counsel did not bring the matter to the court\nagain\xe2\x80\xa6.\n\n6\n\n\x0cFollowing the hearing, the District Court filed an order\nstating that, \xe2\x80\x9c[o]n the basis of the admissible evidence offered\nI specifically find that the motions for leave to interview\njurors or for an evidentiary hearing at which jurors would be\nwitnesses is not required or appropriate.\xe2\x80\x9d\nThe District Court also denied the motion for new trial\xe2\x80\xa6.\nWhile the appeal of this case was pending before the\nEleventh Circuit, petitioners filed another new trial motion\nbased on additional evidence of jury misconduct. In another\naffidavit, Tanner\'s attorney stated that he received an\nunsolicited visit at his residence from a second juror, Daniel\nHardy\xe2\x80\xa6.Despite the fact that the District Court had denied\npetitioners\' motion for leave to interview jurors, two days\nafter Hardy\'s visit Tanner\'s attorney arranged for Hardy to be\ninterviewed by two private investigators\xe2\x80\xa6.The interview was\ntranscribed, sworn to by the juror, and attached to the new\ntrial motion. In the interview Hardy stated that he \xe2\x80\x9cfelt\nlike...the jury was on one big party.\xe2\x80\x9d\xe2\x80\xa6Hardy indicated that\nseven of the jurors drank alcohol during the noon recess.\nFour jurors, including Hardy, consumed between them \xe2\x80\x9ca\npitcher to three pitchers\xe2\x80\x9d of beer during various\nrecesses\xe2\x80\xa6.Of the three other jurors who were alleged to have\nconsumed alcohol, Hardy stated that on several occasions he\nobserved two jurors having one or two mixed drinks during\nthe lunch recess, and one other juror, who was also the\nforeperson, having a liter of wine on each of three\noccasions\xe2\x80\xa6.Juror Hardy also stated that he and three other\njurors smoked marijuana quite regularly during the\ntrial\xe2\x80\xa6.Moreover, Hardy stated that during the trial he\nobserved one juror ingest cocaine five times and another\njuror ingest cocaine two or three times\xe2\x80\xa6.One juror sold a\nquarter pound of marijuana to another juror during the trial,\nand took marijuana, cocaine, and drug paraphernalia into the\ncourthouse\xe2\x80\xa6.Hardy noted that some of the jurors were\nfalling asleep during the trial, and that one of the jurors\ndescribed himself to Hardy as \xe2\x80\x9cflying.\xe2\x80\x9d\xe2\x80\xa6Hardy stated that\n\n7\n\n\x0cbefore he visited Tanner\'s attorney at his residence, no one\nhad contacted him concerning the jury\'s conduct, and Hardy\nhad not been offered anything in return for his\nstatement\xe2\x80\xa6.Hardy said that he came forward \xe2\x80\x9cto clear my\nconscience\xe2\x80\x9d and \xe2\x80\x9c[b]ecause I felt ... that the people on the\njury didn\'t have no business being on the jury. I felt...that Mr.\nTanner should have a better opportunity to get somebody\nthat would review the facts right.\xe2\x80\x9d\xe2\x80\xa6.\nThe District Court\xe2\x80\xa6denied petitioners\' motion for a new\ntrial.\nThe Court of Appeals for the Eleventh Circuit\naffirmed\xe2\x80\xa6.We granted certiorari\xe2\x80\xa6to consider whether the\nDistrict Court was required to hold an evidentiary hearing,\nincluding juror testimony, on juror alcohol and drug use\nduring the trial\xe2\x80\xa6.\nII.\n\xe2\x80\xa6Petitioners assert that, contrary to the holdings of the\nDistrict Court and the Court of Appeals, juror testimony on\ningestion of drugs or alcohol during the trial is not barred by\nFederal Rule of Evidence 606(b). Moreover, petitioners argue\nthat whether or not authorized by Rule 606(b), an evidentiary\nhearing including juror testimony on drug and alcohol use is\ncompelled by their Sixth Amendment right to trial by a\ncompetent jury.\nBy the beginning of this century, if not earlier, the nearuniversal and firmly established common-law rule in the\nUnited States flatly prohibited the admission of juror\ntestimony to impeach a jury verdict\xe2\x80\xa6.\nExceptions to the common-law rule were recognized only in\nsituations in which an \xe2\x80\x9cextraneous influence,\xe2\x80\x9d Mattox v. United\nStates, 146 U.S 140, 146 U.S. 149 (1892), was alleged to have\naffected the jury. In Mattox, this Court held admissible the\ntestimony of jurors describing how they heard and read\nprejudicial information not admitted into evidence. The\n\n8\n\n\x0cCourt allowed juror testimony on influence by outsiders in\nParker v. Gladden, 385 U.S. 363, 386 U.S. 365, (1966) (bailiff\'s\ncomments on defendant), and Remmer v. United States, 347\nU.S. 227, 347 U.S. 228-230, (bribe offered to juror). See also\nSmith v. Phillips, 455 U.S. 209, (1982) (juror in criminal trial\nhad submitted an application for employment at the District\nAttorney\'s office). In situations that did not fall into this\nexception for external influence, however, the Court adhered\nto the common-law rule against admitting juror testimony to\nimpeach a verdict. McDonald v. Pless, 238 U.S. 264, (1915)\xe2\x80\xa6.\nLower courts used this external/internal distinction to\nidentify those instances in which juror testimony impeaching\na verdict would be admissible. The distinction was not based\non whether the juror was literally inside or outside the jury\nroom when the alleged irregularity took place; rather, the\ndistinction was based on the nature of the allegation. Clearly a\nrigid distinction based only on whether the event took place\ninside or outside the jury room would have been quite\nunhelpful. For example, under a distinction based on\nlocation, a juror could not testify concerning a newspaper\nread inside the jury room. Instead, of course, this has been\nconsidered an external influence about which juror testimony\nis admissible\xe2\x80\xa6.Similarly, under a rigid locational distinction\njurors could be regularly required to testify after the verdict as\nto whether they heard and comprehended the judge\'s\ninstructions, since the charge to the jury takes place outside\nthe jury room. Courts wisely have treated allegations of a\njuror\'s inability to hear or comprehend at trial as an internal\nmatter\xe2\x80\xa6.\nMost significant for the present case, however, is the fact that\nlower federal courts treated allegations of the physical or\nmental incompetence of a juror as \xe2\x80\x9cinternal\xe2\x80\x9d rather than\n\xe2\x80\x9cexternal\xe2\x80\x9d matters\xe2\x80\xa6.\nThere is little doubt that postverdict investigation into juror\nmisconduct would in some instances lead to the invalidation\nof verdicts reached after irresponsible or improper juror\n\n9\n\n\x0cbehavior. It is not at all clear, however, that the jury system\ncould survive such efforts to perfect it. Allegations of juror\nmisconduct, incompetency, or inattentiveness, raised for the\nfirst time days, weeks, or months after the verdict, seriously\ndisrupt the finality of the process....Moreover, full and frank\ndiscussion in the jury room, jurors\' willingness to return an\nunpopular verdict, and the community\'s trust in a system that\nrelies on the decisions of laypeople would all be undermined\nby a barrage of postverdict scrutiny of juror conduct\xe2\x80\xa6.\n\xe2\x80\xa6.[P]etitioners argue that substance abuse constitutes an\nimproper \xe2\x80\x9coutside influence\xe2\x80\x9d about which jurors may testify\nunder Rule 606(b). In our view, the language of the Rule\ncannot easily be stretched to cover this circumstance.\nHowever severe their effect and improper their use, drugs or\nalcohol voluntarily ingested by a juror seems no more an\n\xe2\x80\x9coutside influence\xe2\x80\x9d than a virus, poorly prepared food, or a\nlack of sleep.\nIn any case, whatever ambiguity might linger in the language\nof Rule 606(b) as applied to juror intoxication is resolved by\nthe legislative history of the Rule\xe2\x80\xa6.\nThe House Judiciary Committee described the effect of the\nversion of Rule 606(b) transmitted by the Court as follows:\n\xe2\x80\x9cAs proposed by the Court, Rule 606(b)\nlimited testimony by a juror in the course of\nan inquiry into the validity of a verdict or\nindictment. He could testify as to the\ninfluence\nof\nextraneous\nprejudicial\ninformation brought to the jury\'s attention\n(e.g. a radio newscast or a newspaper account)\nor an outside influence which improperly had\nbeen brought to bear upon a juror (e.g. a threat\nto the safety of a member of his family), but\nhe could not testify as to other irregularities\nwhich occurred in the jury room. Under this\nformulation a quotient verdict could not be\nattacked through the testimony of juror, nor\n\n10\n\n\x0ccould a juror testify to the drunken condition of a\nfellow juror which so disabled him that he could not\nparticipate in the jury\'s deliberations.\xe2\x80\x9d (emphasis\nsupplied).\n\xe2\x80\xa6.The House Judiciary Committee, persuaded that the better\npractice was to allow juror testimony on any \xe2\x80\x9cobjective juror\nmisconduct,\xe2\x80\x9d amended the Rule so as to comport with the\nmore expansive versions proposed by the Advisory\nCommittee in earlier drafts, and the House passed this\namended version.\n\xe2\x80\xa6.[T]he Senate decided to reject the broader House version\nand adopt the narrower version approved by the Court. The\nSenate Report explained:\n\xe2\x80\x9c[The House version\'s] extension of the\nability to impeach a verdict is felt to be\nunwarranted and ill-advised.\n\xe2\x80\x9cThe rule passed by the House\xe2\x80\xa6would have\nthe effect of opening verdicts up to challenge\non the basis of what happened during the\njury\'s internal deliberations, for example,\nwhere a juror alleged that the jury refused to\nfollow the trial judge\'s instructions or that\nsome of the jurors did not take part in\ndeliberations.\n\xe2\x80\xa6.\n\xe2\x80\x9cAs it stands then, the rule would permit the\nharassment of former jurors by losing parties\nas well as the possible exploitation of\ndisgruntled or otherwise badly-motivated exjurors.\n\xe2\x80\x9cPublic policy requires a finality to litigation.\nAnd common fairness requires that absolute\nprivacy be preserved for jurors to engage in\nthe full and free debate necessary to the\nattainment of just verdicts. Jurors will not be\nable to function effectively if their\n\n11\n\n\x0cdeliberations are to be scrutinized in post-trial\nlitigation. In the interest of protecting the jury\nsystem and the citizens who make it work,\nrule 606 should not permit any inquiry into\nthe internal deliberations of the jurors.\xe2\x80\x9d\nThe Conference Committee Report reaffirms Congress\'\nunderstanding of the differences between the House and\nSenate versions of Rule 606(b):\n\xe2\x80\x9c[T]he House bill allows a juror to testify\nabout objective matters occurring during the\njury\'s deliberation, such as the misconduct of\nanother juror or the reaching of a quotient\nverdict. The Senate bill does not permit juror\ntestimony about any matter or statement\noccurring during the course of the jury\'s\ndeliberations.\xe2\x80\x9d\n\xe2\x80\xa6The Conference Committee adopted, and\nCongress enacted, the Senate version of Rule\n606(b).\xe2\x80\x9d\nThus, the legislative history demonstrates with uncommon\nclarity that Congress specifically understood, considered, and\nrejected a version of Rule 606(b) that would have allowed\njurors to testify on juror conduct during deliberations,\nincluding juror intoxication. This legislative history provides\nstrong support for the most reasonable reading of the\nlanguage of Rule 606(b) -- that juror intoxication is not an\n\xe2\x80\x9coutside influence\xe2\x80\x9d about which jurors may testify to\nimpeach their verdict.\n\xe2\x80\xa6.\nPetitioners also argue that the refusal to hold an additional\nevidentiary hearing at which jurors would testify as to their\nconduct \xe2\x80\x9cviolates the sixth amendment\'s guarantee to a fair\ntrial before an impartial and competent jury.\xe2\x80\x9d (emphasis in\noriginal).\n\n12\n\n\x0cThis Court has recognized that a defendant has a right to \xe2\x80\x9ca\ntribunal both impartial and mentally competent to afford a\nhearing.\xe2\x80\x9d\xe2\x80\xa6.\n\xe2\x80\xa6.Petitioners\' Sixth Amendment interests in an unimpaired\njury, on the other hand, are protected by several aspects of\nthe trial process. The suitability of an individual for the\nresponsibility of jury service, of course, is examined during\nvoir dire. Moreover, during the trial the jury is observable by\nthe court, by counsel, and by court personnel. See United States\nv. Provenzano, 620 F.2d 985, 996-997 (CA3 1980) (marshal\ndiscovered sequestered juror smoking marijuana during early\nmorning hours). Moreover, jurors are observable by each\nother, and may report inappropriate juror behavior to the\ncourt before they render a verdict. See Lee v. United States, 454\nA.2d 770 (DC App.1982), cert. denied sub nom. McIlwain v.\nUnited States, 464 U.S. 972, (1983) (on second day of\ndeliberations, jurors sent judge a note suggesting that\nforeperson was incapacitated). Finally, after the trial a party\nmay seek to impeach the verdict by nonjuror evidence of\nmisconduct. See United States v. Taliaferro, 558 F.2d 724, 725726 (CA4 1977) (court considered records of club where\njurors dined, and testimony of marshal who accompanied\njurors, to determine whether jurors were intoxicated during\ndeliberations). Indeed, in this case the District Court held an\nevidentiary hearing giving petitioners ample opportunity to\nproduce nonjuror evidence supporting their allegations.\nIn light of these other sources of protection of petitioners\'\nright to a competent jury, we conclude that the District Court\ndid not err in deciding, based on the inadmissibility of juror\ntestimony and the clear insufficiency of the nonjuror evidence\noffered by petitioners, that an additional post-verdict\nevidentiary hearing was unnecessary.\nNotes\n1. In the wake of Tanner, Indiana amended Indiana Rule of\nEvidence 606(b) so that jurors can now testify \xe2\x80\x9cto drug or\n\n13\n\n\x0calcohol use by any juror\xe2\x80\xa6.\xe2\x80\x9d See Colin Miller, Amores Perros:\nIndiana Firefigther Convicted of Running Pitbull-Fighting Operation Seeks\nJury Impeachment Based Upon Unadmitted Photo, EVIDENCEPROF\nBLOG,\nJuly\n8,\n2008,\nhttp://lawprofessors.typepad.com/evidenceprof/2008/07/dogfighting-60.html. Other jurisdictions do not have such an\nexception.\n2. As noted, in its 1915 opinion in McDonald v. Pless, 238 U.S. 264,\nthe United States Supreme Court concluded that it had to\n\xe2\x80\x9cchoose between redressing the injury of the private litigant and\ninflicting the public injury which would result if jurors were\npermitted to testify as to what had happened in the jury room.\xe2\x80\x9d\nLater in its opinion, the Court noted that the anti-jury\nimpeachment rule that it was announcing did not apply in\ncriminal cases. There is no such limitation in Federal Rule of\nEvidence 606(b), and, obviously, the Court applied the Rule to\nTanner, a criminal case. Do you agree with the Court\xe2\x80\x99s conclusion\nin Pless or the current formulation of the Rule? Should the Rule\napply even in death penalty appeals? See Colin Miller, We The Jury:\nSupreme Court Of Pennsylvania Refuses To Hear Allegations Of Extreme\nJuror Racial Prejudice In Death Penalty Appeal, EVIDENCEPROF\nBLOG,\nDecember\n19,\n2008,\nhttp://lawprofessors.typepad.com/evidenceprof/2008/12/606bcom-v-stee.html.\n3. What sources of protection of a defendant\xe2\x80\x99s right to a competent\njury does Justice O\xe2\x80\x99Connor identify? Do you think that these\nprotections are sufficient?\nVI. 606(b): The External/Internal Distinction\nAs Justice O\xe2\x80\x99Connor found in Tanner, there is an external/internal\ndistinction in Rule 606(b). Jurors can impeach their verdicts based\nupon anything external to the jury deliberation process, but they\ncannot impeach their verdicts based upon anything internal to the jury\ndeliberation process. Examples of matters internal to the jury\ndeliberation process include claims that jurors (1) took the\ndefendant\xe2\x80\x99s refusal to testify as evidence of his guilt, (2)\n\n14\n\n\x0cmisunderstood jury instructions, (3) reached a majority or quotient\nverdict, or (4) threatened each other.\nHypothetical 1: Charles Orange is charged with aggravated\nsexual conduct and the lesser-included offense of indecency\nwith a child. The jury finds Orange \xe2\x80\x9cnot guilty\xe2\x80\x9d of aggravated\nsexual misconduct but \xe2\x80\x9cguilty\xe2\x80\x9d of indecency with a child.\nAfter trial, jurors inform defense counsel that there was no\nunanimity. Some jurors wanted to convict Orange of\naggravated sexual conduct while others wanted to acquit him\nentirely. In the end, the jurors split the difference and\ncompromised, convicting Orange of the lesser-included\noffense. Can the jurors impeach the verdict? See Orange v.\nState, No. 06-08-00193-CR, (Tex. App. 6th 2008) 2009 WL\n3851068; Colin Miller, Compromising Position: Court Of Appeals\nOf Texas Notes That Rule 606(b) Precludes Jury Impeachment\nRegarding Compromise Verdict. EVIDENCEPROF BLOG, Nov. 19,\n2009,\nhttp://lawprofessors.typepad.com/\nevidenceprof/2009/11/606b-compromise--charles-eugeneorange-appellant-v-the-state-of-texas-appellee----sw3d-----2009-wl-3851068texapp-t.html.\nHypothetical 2: A jury found David Jackson guilty of\nmurder and sentenced to him death based upon the killing of\nanother inmate during a prison fight. Jackson thereafter\nmoved for a new trial, alleging that the jury erroneously\nbelieved that even if Jackson were sentenced to life without\nparole, it was still possible he could be released before the\nend of his life, despite the district court\'s explicit instruction\nto the contrary. In support of this contention, he proffered an\naffidavit of an investigator who contacted jurors after the\ntrial. The affidavit stated that a number of jurors believed that\nJackson could be released early, as had happened with a\ncooperating witness who testified at trial. Should the affidavit\nbe deemed admissible? See United States v. Jackson, No. 0641680 (5th Cir. 2008) 2008 WL 4901375; Colin Miller, How\nDifferent Is Death?: Fifth Circuit Precludes Jury Impeachment Based\nUpon Misunderstood Jury Instructions In Capital Case.\n\n15\n\n\x0cEVIDENCEPROF\nBLOG,\nNov.\n30,\nhttp://lawprofessors.typepad.com/evidenceprof/\n2008/11/essential-eleme.html.\n\n2009,\n\nA. 606(b)(2)(A): Extraneous Prejudicial Information\nRule 606(b)(2)(A) states that jurors may testify about \xe2\x80\x9cwhether\nextraneous prejudicial information was improperly brought to the\njury\'s attention\xe2\x80\xa6\xe2\x80\x9d \xe2\x80\x9cExtraneous prejudicial information is commonly\nunderstood to mean information the jury receives outside the\ncourtroom.\xe2\x80\x9d United States v. Stewart, 317 F.Supp.2d 426, 431 (S.D.N.Y.\n2004). Put another way, extraneous prejudicial information is\n\xe2\x80\x9cinformation that was not admitted into evidence but nevertheless\nbears on a fact at issue in the case.\xe2\x80\x9d Robinson v. Polk, 438 F.3d 350,\n363 (4th Cir. 2006). Information does not need to appear overtly\nprejudicial to be deemed prejudicial under Rule 606(b)(1). Thus, for\ninstance, in Bauberger v. Haynes, 666 F.Supp.2d 558 (M.D.N.C. 2009),\nthe court reversed a petitioner\xe2\x80\x99s conviction for second degree murder\nand other crimes after receiving testimony regarding a juror reading\nto other jurors the dictionary definition of \xe2\x80\x9cmalice,\xe2\x80\x9d which competed\nwith the legal definition of malice. In other words, if a juror uses any\nrelevant information learned after the start of trial but not admitted at\ntrial, she is using extraneous prejudicial information, and any juror\ncan later impeach that verdict.\nHypothetical 3: During an attempt to foil a kidnap and\nransom attempt, Detective Sirk strikes Henry Bradford with\nhis squad car twice. Bradford thereafter brings a \xc2\xa7 1983 action\nagainst Sirk. At trial, Sirk testifies that he struck Bradford a\nsecond time to prevent him from escaping because Bradford\ngot up after initially being struck. Bradford testifies during\ndirect examination that he never got up after being struck the\nfirst time. During cross-examination, however, when\nquestioned about events leading up to Sirk striking him,\nBradford invokes his Fifth Amendment privilege against selfincrimination. On Sirk\xe2\x80\x99s motion, the judge strikes Bradford\xe2\x80\x99s\ntestimony and instructs the jury to disregard Bradford\xe2\x80\x99s\ntestimony. After the jury finds for Bradford, jurors submit\naffidavits indicating that they considered Bradford\xe2\x80\x99s stricken\n\n16\n\n\x0ctestimony despite the judge\xe2\x80\x99s instruction not to. Are the\naffidavits admissible under Rule 606(b)? See Bradford v. City of\nLos Angeles, 21 F.3d 1111 (9th Cir. 1994).\nHypothetical 4: Toymaker Mattel sues MGA Entertainment,\nclaiming that Carter Bryant, MGA\xe2\x80\x99s creator of Bratz dolls,\ncreated the doll\'s characters and the name Bratz while he was\nunder contract as a Barbie designer at Mattel. The jury found\nin favor of Mattel. MGA subsequently moved for a mistrial.\nMGA\xe2\x80\x99s CEO was Iranian-born Isaac Larian, and it came out\nafter trial that Juror No. 8 said with regard to Persians and/or\nIranians that they \xe2\x80\x9clie,\xe2\x80\x9d \xe2\x80\x9cstole ideas\xe2\x80\x9d and were \xe2\x80\x9cstubborn\xe2\x80\x9d\nand \xe2\x80\x9crude.\xe2\x80\x9d According to several jurors, including Juror No.\n8 herself, these opinions did not originate with Juror No. 8\nbut instead came from her husband when she asked him\nabout the trial. Can the jurors impeach their verdict? See\nBryant v. Mattel, Inc., 2008 WL 3367605 (C.D. Cal 2008); Colin\nMiller, In A Barbie World: Court Denies Motion For Mistrial In\nBratz Lawsuit After Horribly Misguided Rule 606(b) Ruling.\nEVIDENCEPROF\nBLOG,\nAug.\n17,\n2008,\nhttp://lawprofessors.typepad.com/evidenceprof/2008/08/6\n06b-bryant-v-m.html. What if these opinions originated with\nJuror No. 8, and she did not consult her husband? See infra\nVIII.D. What if Juror No. 8 indicated during voir dire that\nethnicity would not influence her decision as a juror in any\nway? See infra VII.B.\nHypothetical 5: A teenage boy from a city slum is charged\nwith murdering his father with a switch-blade knife. The boy\nowned the same type of knife used in the murder and claimed\nthat he lost it through a hole in his pocket before the murder.\nThe prosecutor tried to establish the distinctiveness of the\nknife by having the storekeeper of the store where the boy\npurchased the knife testify that he had never seen another\nknife like it. During deliberations, Juror No. 8 displays to the\nother jurors a knife similar to the knife used in the murder\nwhich he purchased from a pawn shop two blocks from the\nboy\xe2\x80\x99s residence. Does the knife constitute extraneous\n\n17\n\n\x0cprejudicial information? See the movie 12 ANGRY MEN\n(MGM 1957).\nIt could be said that the modern counterpart to the situation in 12\nAngry Men is the \xe2\x80\x9cGoogle mistrial,\xe2\x80\x9d i.e., jurors using internet searches\nto learn information about a case. See John Schwartz, As Jurors Turn to\nWeb, Mistrials Are Popping Up, N.Y. TIMES, March 17, 2009. To\nremedy this problem, some judges have begun instructing jurors \xe2\x80\x9cnot\nto Google the case online.\xe2\x80\x9d See Colin Miller, Avoiding The Google\nMistrial: Story Reveals Measures Oklahoma Judge Has Taken In Light Of\nNew Technologies, EVIDENCEPROF BLOG, Oct. 1, 2009,\nhttp://lawprofessors.typepad.com/evidenceprof/2009/10/jurytechnologyhttpwwwnewson6comglobalstoryasps11226092.html.\nAnother problem is jurors improperly e-mailing each other during\ntrial and deliberations. See Colin Miller, In Birmingham, They Love The\nGovernor: HealthSouth Appeal Prompts Interesting Hearsay And Jury\nImpeachment Rulings, EVIDENCEPROF BLOG, March 8, 2009,\nhttp://lawprofessors.typepad.com/evidenceprof/2009/03/coconspirator.html. Would Rule 606(b) prevent testimony regarding\nsuch e-mails?\nB. 606(b)(2)(B): Improper Outside Influences\nRule 606(b)(2)(B) states that jurors may testify about \xe2\x80\x9cwhether any\noutside influence was improperly brought to bear upon any juror.\xe2\x80\x9d\nAn improper outside influence \xe2\x80\x9cis an outside influence upon the\npartiality of the jury, such as \xe2\x80\x98private communication, contact, or\ntampering...with a juror\xe2\x80\xa6.\xe2\x80\x99\xe2\x80\x9d Robinson v. Polk, 438 F.3d 350, 363 (4th\nCir. 2006). Conversely, jurors cannot testify concerning internal\ninfluences from other jurors, no matter how improper. See, e.g.,\nDickson v. Subia, 2010 WL 1992580 (E.D. Cal. 2010) (precluding jury\nimpeachment concerning allegations that a juror who wanted to vote\n\xe2\x80\x9cnot guilty\xe2\x80\x9d was verbally harassed and physically threatened by other\njurors).\nHypothetical 6: Paul Lewis is charged with first-degree\nsexual offense, robbery with a dangerous weapon, and felony\nbreaking and entering. Among the jurors hearing the case was\nDeputy Eddie Hughes. Deputy Hughes actually knew Lewis\n\n18\n\n\x0cbecause he transported him to Central Prison after his arrest.\nWhile Hughes transported Lewis, Lewis disclosed to him that\nhe had failed a polygraph test. However, despite Hughes\nadmitting these facts during voir dire, Lewis\xe2\x80\x99 attorney did not\nuse a preemptory challenge to remove Hughes. After Lewis\nwas convicted, defense counsel learned that during a break in\nLewis\xe2\x80\x99 trial, Deputy Hughes went to the Sheriff\'s\nDepartment, where a detective said to him, "[I]f we have...a\ndeputy sheriff for a juror, he would do the right thing. You\nknow he flunked a polygraph test, right?\xe2\x80\x9d Can Hughes\nimpeach the verdict? What about if Hughes was unaware of\nthe failed polygraph test before trial? See State v. Lewis, 654\nS.E.2d 808 (N.C.App. 2008); Colin Miller, Do the Right Thing:\nCourt Finds Detective Pressure Constitutes an Improper Outside\nInfluence Under Rule 606(b). EVIDENCEPROF BLOG, Jan. 22,\n2008,\nhttp://lawprofessors.typepad.com/evidenceprof/2008/01/d\no-the-right-th.html.\nHypothetical 7: Joaquin Valenica-Trujillo is charged with\nmoney laundering and several drug crimes. On the fourth day\nof deliberations, the jury finds him guilty of these crimes.\nAfter Valencia-Trujillo is convicted, defense counsel learns\nthat the jury foreman booked a flight to Las Vegas which\ndeparted on the fourth day of deliberations and pressured\nother jurors to find the defendant guilty so that he could\nmake his flight. Can a juror impeach the verdict? See United\nStates v. Valencia-Trujillo, No. 09-15766 (11th Cir. 2010) 2010\nWL 2163105; Colin Miller, Travel Plans: Eleventh Circuit\nPrecludes Jury Impeachment Regarding Foreman with Flight on 4th Day\nof Deliberations Pressuring Jury to Hurry. EVIDENCEPROF BLOG,\nJune\n5,\n2010,\nhttp://lawprofessors.typepad.com/evidenceprof/2010/06/6\n06b-vacation--us-v-valencia-trujilloslip-copy-2010-wl2163105ca11-fla2010.html. What if a juror admitted that he\nchanged his vote from \xe2\x80\x9cnot guilty\xe2\x80\x9d to \xe2\x80\x9cguilty\xe2\x80\x9d solely so that\nhe could make an annual fishing trip? See State v. Miller, 772\n\n19\n\n\x0cN.W.2d 188 (Wis.App. 2009); Colin Miller, I\xe2\x80\x99d Rather be\nFishing: Court Refuses to Allow Jury Impeachment Based Upon Juror\nChanging Vote to Guilty to Make Annual Fishing Trip.\nEVIDENCEPROF BLOG, May 13, 2009, http://lawprofessors.\ntypepad.com/evidenceprof/2009/05/606b--state-vmillerslip-copy-2009-wl-1081745wisapp2009.html.\nC. 606(b)(2)(C): Mistake in Entering the Verdict on the\nVerdict Form\nWhen Rule 606(b) was initially enacted, it only contained the previous\ntwo exceptions. Nonetheless, many courts began creating an\nexception to the Rule for clerical errors in entering the verdict on the\nverdict form. In 2006, the Rule was amended to allow jurors to testify\nabout \xe2\x80\x9cwhether there was a mistake in entering the verdict onto the\nverdict form.\xe2\x80\x9d The accompanying Advisory Committee\xe2\x80\x99s Note\nindicates that\nIn adopting the exception for proof of\nmistakes in entering the verdict on the verdict\nform, the amendment specifically rejects the\nbroader exception, adopted by some courts,\npermitting the use of juror testimony to prove\nthat the jurors were operating under a\nmisunderstanding about the consequences of\nthe result that they agreed upon\xe2\x80\xa6.The\nbroader exception is rejected because an\ninquiry into whether the jury misunderstood\nor misapplied an instruction goes to the\njurors\' mental processes underlying the\nverdict, rather than the verdict\'s accuracy in\ncapturing what the jurors had agreed upon\xe2\x80\xa6.\nInstead, according to the Note, \xe2\x80\x9cthe exception established by the\namendment is limited to cases such as \xe2\x80\x98where the jury foreperson\nwrote down, in response to an interrogatory, a number different from\nthat agreed upon by the jury, or mistakenly stated that the defendant\nwas \xe2\x80\x98guilty\xe2\x80\x99 when the jury had actually agreed that the defendant was\nnot guilty.\xe2\x80\x99\xe2\x80\x9d\n\n20\n\n\x0cHypothetical 8: Emily Kennedy, the administratrix of the\nestate of Helen A. Hopkinson, brings an action against\nStanley Sticker sounding in trespass and wrongful cutting of\ntimber. At the end of trial, the jury purportedly awards the\nplaintiff $5,000 in damages. It is later determined that the jury\nagreed to award the plaintiff $500 in damages, with the\nforeperson erroneously reducing that verdict to the verdict\nform. Can jurors testify about the error? See Kennedy v. Stocker,\n70 A.2d 587 (Vt. 1950).\nHypothetical 9: A plaintiff seeks $50,000 in damages from a\ndefendant, and the defendant counterclaims for $50,000 in\ndamages. The jury\'s verdict form appears to award the\nplaintiff $20,000 in damages and the defendant $30,000 in\ndamages (e.g., $10,000 to the defendant). After the verdict is\nentered, jurors come forward and claim that the $20,000 in\ndamages listed for the plaintiff was the net amount that they\nintended to award it, and the $30,000 allegedly awarded to the\ndefendant was intended to be the amount deducted from the\n$50,000 sought by the plaintiff to reach the total final billing\nof $20,000. Will the juror affidavits be admissible to \xe2\x80\x9ccorrect\xe2\x80\x9d\nthe verdict? Cf. Carolina Homes by Design, Inc. v. Lyons, No.\nCOA09-74 (N.C.App. 2010) 2010 WL 2367110; Colin Miller,\nStandard Deduction: Court Of Appeals Of North Carolina Precludes\nJury Impeachment Regarding Incorrect Damages Being Awarded.\nEVIDENCEPROF\nBLOG,\nJune\n16,\n2010,\nawprofessors.typepad.com/evidenceprof/2010/06/606b-carolina-homes-by-design-inc-v-lyonsslip-copy-2010-wl2367110-tablencapp2010.html.\nVII. Situations Where Rule 606(b) Does Not Apply\nA. Testimony by Nonjurors\nAs the text of Rule 606(b) and Justice O\xe2\x80\x99Connor\xe2\x80\x99s opinion in Tanner\nmake clear, Rule 606(b) only governs testimony by jurors. Therefore,\nif a nonjuror observes jury misconduct, she can impeach the jury\xe2\x80\x99s\nverdict. For example, in Tanner, Justice O\xe2\x80\x99Connor cited to the Fourth\nCircuit\xe2\x80\x99s opinion in United States v. Taliaferro, 558 F.2d 724 (4th Cir.\n\n21\n\n\x0c1977), in which a judge sent a Marshal to accompany jurors to a\nprivate club to deliberate and the Marshal was allowed to impeach\ntheir verdict through testimony regarding their consumption of\nalcoholic beverages during deliberations.\nHypothetical 10: Robert Lamb is convicted of the firstdegree murder of his sister. After Lamb was convicted, he\nbrought a motion for a new trial based upon the following\nfacts: The trial judge, who had a scheduling conflict, left the\njury in another judge\'s charge on its second day of\ndeliberations. Thereafter, the foreman told the bailiff he had a\nnote for the judge. The bailiff saw the note, which asked\nabout the difference between first- and second-degree\nmurder, but he neither took possession of it nor alerted the\nparties or either judge. Instead, taking matters into his own\nhands, the bailiff told the jury the judge was out of the\njurisdiction and to read the jury instructions. Can the bailiff\ntestify concerning these facts? See Lamb v. State, No. 51457\n(Nev. 2011) 2011 WL 743193; Colin Miller, No One But the\nBailiff: Supreme Court of Nevada Finds Bailiff\xe2\x80\x99s Improper Behavior\nInsufficient to Award New Trial. EVIDENCEPROF BLOG, Mar. 18,\n2011,\nawprofessors.typepad.com/evidenceprof/2011/03/606blamb-v-state-p3d-2011-wl-743193nev2011.html.\nB. Juror Testimony Not Offered to Impeach a Verdict\nRule 606(b) only applies when a party seeks to impeach a verdict after\na verdict has been entered. Before a verdict has been entered, Rule\n606(a) governs juror testimony. Even after a verdict has been entered,\nRule 606(b) only governs juror testimony when offered as part of an\ninquiry into the validity of the verdict. Thus, most courts have held\nthat if a juror makes a claim during voir dire (e.g., that race would not\ninfluence his decision) and then contradicts that claim during\ndeliberations (e.g., by making racist comments), another juror may\ntestify concerning the contradiction. Indeed, in State v. Hidanovic, 747\nN.W.2d 463, 474 (N.D. 2008), the Supreme Court of North Dakota\nnoted that \xe2\x80\x9c[c]ourts have universally held that provisions similar to\nN.D.R.Ev. 606(b)\xe2\x80\xa6do not preclude evidence to show that a juror\n\n22\n\n\x0clied on voir dire\xe2\x80\xa6.\xe2\x80\x9d Even though such testimony would be offered as\npart of an inquiry into whether a juror lied during voir dire, it could\nhave the effect of invalidating the verdict because, as the United\nStates Supreme Court held in McDonough Power Equipment, Inc. v.\nGreenwood, 454 U.S. 548, 556 (1984), a party can obtain a new trial by\ndemonstrating that a juror failed to answer honestly a material\nquestion on voir dire and that a correct response would have provided\na basis for a challenge for cause. See, e.g., Merchant v. Forest Family\nPractice Clinic, P.A., No. 2009-CA-01622-SCT (Miss. 2011) 2011 WL\n3505309.\nBut if the court\xe2\x80\x99s conclusion in Hidanovic about courts universally\nreaching this conclusion were once true, it is no longer true. In United\nStates v. Benally, 546 F.3d 1230 (10th Cir. 2008), no juror responded\n\xe2\x80\x9cyes\xe2\x80\x9d when asked on voir dire: \xe2\x80\x9cWould the fact that the defendant is a\nNative American affect your evaluation of the case?\xe2\x80\x9d and \xe2\x80\x9cHave you\never had a negative experience with any individuals of Native\nAmerican descent? And, if so, would that experience affect your\nevaluation of the facts of this case?\xe2\x80\x9d The day after Benally, a Native\nAmerican man, was convicted of assaulting a BIA officer, a juror told\ndefense counsel, among other things, that during deliberations some\njurors discussed the need to \xe2\x80\x9csend a message back to the\nreservation.\xe2\x80\x9d and one juror said that \xe2\x80\xa6.\xe2\x80\x9c[w]hen Indians get alcohol,\nthey all get drunk,\xe2\x80\x9d and that when they get drunk, they get violent\xe2\x80\xa6.\nThe district court allowed Benally to use juror affidavits to this effect\nin support of his motion to vacate the verdict and receive a new trial.\nThe United States Court of Appeals for the Tenth Circuit, however,\nreversed and deemed the affidavits inadmissible because it found that\nBenally was using the affidavits to show that jurors lied during voir\ndire as a vehicle for \xe2\x80\x9cquestion[ing] the validity of the verdict.\xe2\x80\x9d The\ncourt did acknowledge, though, that the affidavits would have been\nadmissible in contempt proceedings against any dishonest jurors.\nNonetheless, most courts still allow jurors to testify regarding jury\ndeliberations to prove that a jury lied during voir dire. But cf. United\nStates v. Snipes, No. 10-15573 (11th Cir. 2011) 2011 WL 3890354\n(ignoring an argument by actor Wesley Snipes that he should be\ngranted leave to interview jurors concerning whether they lied during\n\n23\n\n\x0cvoir dire regarding their acceptance of the presumption of innocence);\nColin Miller, A Taxing Matter, Take 2: 11th Circuit Affirms District\nCourt\'s Ruling Denying Wesley Snipes\' Motion For A New Trial.\nEVIDENCEPROF\nBLOG,\nSep.\n7,\n2011,\nhttp://lawprofessors.typepad.com/evidenceprof/2011/09/\nyesterday-the-eleventh-circuit-decided-united-states-v-snipes-2011wl-3890354-11th-cir-2011-in-the-opinion-the-court.html.\nVIII. Splits in Authority\nA. States without Counterparts to Rule 606(b)\nSome states, like Washington, do not have counterparts to Federal\nRule of Evidence 606(b) and/or allow post-verdict juror testimony\nregarding overt acts during jury deliberations but disallow juror\ntestimony regarding a juror\xe2\x80\x99s mental process in reaching a verdict.\nFor instance, in Washington, a juror can impeach a verdict unless the\ninformation provided \xe2\x80\x9cinheres in the verdict,\xe2\x80\x9d i.e., unless it relates to\n\xe2\x80\x9c[j]uror motives, the effect the evidence had on the jurors, the weight\ngiven to the evidence by particular jurors, and the jurors\xe2\x80\x99 intentions\nand beliefs\xe2\x80\xa6.\xe2\x80\x9d State v. Rooth, 121 P.3d 755, 760-61 (Wash.App. Div. 2\n2005); see also Colin Miller, A Trial That Will Live In Infamy?:\nWashington Case Reveals That The State Has No Version Of Rule 606(b),\nEVIDENCEPROF BLOG (February 18, 2009), http://lawprofessors.\ntypepad.com/evidenceprof/2009/02/a-washington-ju.html.\nB. Minnesota\xe2\x80\x99s Violence Exception to Rule 606(b)\nIn most jurisdictions, jurors cannot impeach their verdicts through\nallegations of actual or threatened violence against them by other\njurors. Under Minnesota Rule of Evidence 606(b), however, jurors\nmay \xe2\x80\xa6.\xe2\x80\x9ctestify as to any threats of violence or violent acts brought\nto bear on jurors, from whatever source, to reach a verdict.\xe2\x80\x9d\xe2\x80\xa6.\nIn Gaines v. Tenney, No. E2008-02323-COA-R3-CV (Tenn.Ct.App.\n2010) 2010 WL 199628, a juror claimed that she changed her vote\nfrom \xe2\x80\x9cnot guilty\xe2\x80\x9d to \xe2\x80\x9cguilty\xe2\x80\x9d because she was subjected to threatened\nand actual violence by other jurors, such as the foreman reaching\nacross a table and throwing paper at her. The Court of Appeals of\nTennessee refused to read a violence exception into Tennessee Rule\n\n24\n\n\x0cof Evidence 606(b). Do you think that the juror should have been\nable to testify? What if the juror\xe2\x80\x99s claim was that the foreman stood\nbetween her and the door and prevented her from telling the judge\nthat she was voting \xe2\x80\x9cnot guilty\xe2\x80\x9d? See Colin Miller, Turkey Of An\nOpinion: Court Precludes Jury Impeachment Despite Foreperson Blocking Door\nTo Prevent Juror From Reporting "Not Guilty" Vote In Thanksgiving Related\nCase,\nEVIDENCEPROF\nBLOG,\nNov.\n26,\n2009,\nhttp://lawprofessors.typepad.com/\nevidenceprof/2009/11/thanksgivingpanella-v-marshallslip-copy2009-wl-2475007edcal2009.html.\nIf you agree with Minnesota\xe2\x80\x99s version of the rule, do you believe that\ncourts should draw the line at violence? According to the Committee\nComment to Minnesota Rule of Evidence 606(b), \xe2\x80\xa6.\xe2\x80\x9cThe trial court\nmust distinguish between testimony about \xe2\x80\x98psychological\xe2\x80\x99\nintimidation, coercion, and persuasion, which would be inadmissible,\nas opposed to express acts or threats of violence.\xe2\x80\x9d\xe2\x80\xa6. Do you see a\ndistinction between a juror threatening another juror\xe2\x80\x99s physical wellbeing unless she changes her vote and a juror threatening another\njuror\xe2\x80\x99s mental or emotional well-being?\nC. Testimony About the Effect on Deliberations of\nExtraneous Prejudicial Information/Improper\nOutside Influences\nAs noted above, jurors can impeach their verdicts based upon\nallegations of extraneous prejudicial information and/or improper\noutside influences. But can they testify about the effect of such\ninformation/influences on their deliberations? The courts are split.\nFor instance, in the Bratz case, the United States District Court for\nthe Central District of California allowed jury impeachment regarding\nthe statements by Juror No. 8 and her husband regarding Persians\nand/or Iranians. See VI.0, Hypothetical 2, supra at 13, The court,\nhowever, affirmed the verdict in favor of Mattel after it received\ntestimony from jurors indicating that Juror No. 8\'s \xe2\x80\x9cremarks were\nmade after agreement had been reached on all subjects upon which\nthe jury ultimately reached a verdict.\xe2\x80\x9d Other courts, however, hold\nthat jurors can only testify concerning information/influences, and it\nis then up to the judge objectively to determine the probable effect\n\n25\n\n\x0cthat they would have on the average juror. See United States v. Lloyd,\n269 F.3d 228, 238 (3rd Cir. 2001). In other words, in these\njurisdictions, jurors could testify that they read an article that the\ndefendant failed a polygraph test, but they could not testify that the\narticle changed their vote from \xe2\x80\x9cnot guilty\xe2\x80\x9d to \xe2\x80\x9cguilty\xe2\x80\x9d or that the\njury was deadlocked before the article was read. Considering the\nlanguage of Rule 606(b), which interpretation do you think is correct?\nD. Allegations of Juror Racial, Religious, or Other Bias\nWhen Jurors Are Not Questioned Regarding Bias on\n\nVoir Dire\n\nAs noted, in Tanner v. United States, the United States Supreme Court\nfound that a defendant\xe2\x80\x99s right to a competent jury is not violated by the\napplication of Rule 606(b) to allegations of jurors sleeping and using\ndrugs and alcohol during trial and deliberations. But does application\nof the Rule to allegations of juror racial, religious, or other bias\nviolate a defendant\xe2\x80\x99s right to an impartial jury or some other\nconstitutional right? First, a few courts have found that the Rule does\nnot apply to such allegations because they constitute extraneous\nprejudicial information. See, e.g., State v. Bowles, 530 N.W.2d 521, 536\n(Minn. 1995). And at least one court has found that such bias\nconstitutes an outside improper influence. See United States v. Taylor,\n2009 WL 311138 (E.D. Tenn. 2009). Most courts, though, hold that\njuror bias is internal to the jury deliberation process and that\nallegations regarding such bias are inadmissible under Rule 606(b). See\nalso Colin Miller, Dismissed with Prejudice?: Eastern District of Tennessee\nIssues Strange Opinion in Appeal Alleging Juror Racial Bias.\nEVIDENCEPROF\nBLOG,\nFeb.\n14,\n2009,\nhttp://lawprofessors.typepad.com/evidenceprof/2009/02/i-amcurrently.html.\nSome courts, though, hold that, despite the language of Rule\n606(b), Constitutional considerations might allow or require courts to\npermit jury impeachment regarding such bias. For instance, in United\nStates v. Villar, 586 F.3d 76 (1st Cir. 2009), hours after a jury convicted\na Hispanic man of bank robbery, a juror e-mailed defense counsel\nthat another juror said during deliberations, \xe2\x80\x9cI guess we\xe2\x80\x99re profiling\nbut they cause all the trouble.\xe2\x80\x9d The district court allowed jury\n\n26\n\n\x0cimpeachment on this subject, and the First Circuit affirmed, agreeing\nwith the \xe2\x80\x9c[m]any courts [which] have recognized that Rule 606(b)\nshould not be applied dogmatically where there is a possibility of\njuror bias during deliberations that would violate a defendant\'s Sixth\nAmendment rights.\xe2\x80\x9d\nOther courts, however, disagree, such as the Tenth Circuit in\nUnited States v. Benally, 546 F.3d 1230 (10th Cir. 2008). See VII.0 supra\nat 17. In addition to finding that Rule 606(b) prevented juror\ntestimony regarding juror racial bias during deliberations to prove\nthat jurors lied during voir dire, the court found that the Sixth\nAmendment right to an impartial jury did not trump Rule 606(b) and\nallow such testimony. Benally filed a petition for writ of certiorari\nregarding (1) whether jurors can generally testify about allegations of\nracial bias during deliberations under the Sixth Amendment, and (2)\nwhether Rule 606(b) allows jurors to testify about allegations of racial\nbias during deliberations when jurors indicated during voir dire that\nrace would not influence their decision as a juror in any way. The\nUnited States Supreme Court denied the petition. Which approach do\nyou prefer?\nIX. Jury Impeachment Pleadings\nSome concise examples of motions connected to evidence sought to\nbe admitted or excluded under Rule 606(b) can be found at:\n\xef\x82\xb7\n\nWilliams v. Hall, 2009 WL 4060880 (D.Or. 2009) (Reply to\nResponse in Opposition to Motion for Order Permitting\nJuror Interviews);\n\n\xef\x82\xb7\n\nPierson v. Ford Motor Co., 2009 WL 2704593 (N.D.Cal. 2009)\n(Plaintiff\'s Opposition to Defendant \'s Third Motion to\nAdjust the Verdict Based on Clerical Error, and, in the\nAlternative, Request for Evidentiary Hearing); and\n\n\xef\x82\xb7\n\nFuller v. Fiber Glass Systems, L.P., 2009 WL 461992 (E.D.Ark.\n2009) (Defendant\xe2\x80\x99s Response to Court\xe2\x80\x99s Query).\n\n27\n\n\x0c'