Evidence:

Jury Impeachment

Colin Miller

CALI eLangdell® Press 2012

Notices
This work by Colin Miller is licensed and published
by CALI eLangdell Press under a Creative
Commons Attribution-NonCommercial-ShareAlike 3.0 Unported
License. CALI and CALI eLangdell Press reserve under copyright all
rights not expressly granted by this Creative Commons license. CALI
and CALI eLangdell Press do not assert copyright in US
Government works or other public domain material included herein.
Permissions beyond the scope of this license may be available
through feedback@cali.org.
In brief, the terms of that license are that you may copy, distribute,
and display this work, or make derivative works, so long as
 you give CALI eLangdell Press and the author credit;
 you do not use this work for commercial purposes; and
 you distribute any works derived from this one under the
same licensing terms as this.
Suggested attribution format for original work:
Colin Miller, Evidence: Jury Impeachment, Published by CALI
eLangdell Press. Available under a Creative Commons BY-NC-SA
3.0 License.
CALI® and eLangdell® are United States federally registered
trademarks owned by the Center for Computer-Assisted Legal
Instruction. The cover art design is a copyrighted work of CALI, all
rights reserved. The CALI graphical logo is a trademark and may not
be used without permission.
Should you create derivative works based on the text of this book or
other Creative Commons materials therein, you may not use this
book’s cover art and the aforementioned logos, or any derivative
thereof, to imply endorsement or otherwise without written
permission from CALI.

ii

This material does not contain nor is intended to be legal advice.
Users seeking legal advice should consult with a licensed attorney in
their jurisdiction. The editors have endeavored to provide complete
and accurate information in this book. However, CALI does not
warrant that the information provided is complete and accurate.
CALI disclaims all liability to any person for any loss caused by errors
or omissions in this collection of information.

iii

About the Author
Professor Miller teaches Evidence, Criminal Procedure, Criminal
Law, and Civil Procedure. He is the creator and Blog Editor of
EvidenceProf Blog, a member of the Law Professor Blogs Network.
He is the Editor of Illinois Criminal Procedure and drafted a 100
page report comparing the Federal Rules of Evidence to Illinois
evidentiary principles, which was used in the creation of the first
Illinois Rules of Evidence.
Professor Miller received his B.A. degree with distinction from the
University of Virginia and his J.D. (Order of the Coif) from the
William & Mary Law School.

About CALI eLangdell Press
The Center for Computer-Assisted Legal Instruction (CALI®) is: a
nonprofit organization with over 200 member US law schools, an
innovative force pushing legal education toward change for the
better. There are benefits to CALI membership for your school, firm,
or organization. eLangdell® is our electronic press with a mission to
publish more open books for legal education.
How do we define "open?"
 Compatibility with devices like smartphones, tablets, and ereaders; as well as print.
 The right for educators to remix the materials through more
lenient copyright policies.
 The ability for educators and students to adopt the materials
for free.
Find available and upcoming eLangdell titles at elangdell.cali.org.
Show support for CALI by following us on Facebook and Twitter,
and by telling your friends and colleagues where you received your
free book.

Table of Contents
Notices ........................................................................................ ii
About the Author ........................................................................iv
About CALI eLangdell Press ......................................................v
Table of Contents .......................................................................vi
Preface ...................................................................................... vii
Jury Impeachment Chapter ......................................................... 1
I. The Rule.................................................................................... 1
II. Historical Origins ....................................................................3
III. The Drafting of Federal Rule of Evidence 606(b) .................4
IV. Public Policy Underlying Federal Rule of Evidence 606(b) ..5
V. Supreme Court Precedent ........................................................5
Notes ........................................................................................................ 13

VI. 606(b): The External/Internal Distinction .......................... 14
A. 606(b)(2)(A): Extraneous Prejudicial Information ...................... 16
B. 606(b)(2)(B): Improper Outside Influences .................................. 18
C. 606(b)(2)(C): Mistake in Entering the Verdict on the Verdict
Form......................................................................................................... 20

VII. Situations Where Rule 606(b) Does Not Apply .................. 21
A. Testimony by Nonjurors ................................................................. 21
B. Juror Testimony Not Offered to Impeach a Verdict .................. 22

VIII. Splits in Authority .............................................................. 24
A. States without Counterparts to Rule 606(b) ................................. 24
B. Minnesota’s Violence Exception to Rule 606(b) ......................... 24
C. Testimony About the Effect on Deliberations of Extraneous
Prejudicial Information/Improper Outside Influences ................... 25
D. Allegations of Juror Racial, Religious, or Other Bias When
Jurors Are Not Questioned Regarding Bias on Voir Dire ............... 26

IX. Jury Impeachment Pleadings ............................................... 27

vi

Preface
The anti-jury impeachment rule, contained in Federal Rule of
Evidence 606(b) and state counterparts, is a rule preventing the
admission of jury testimony or statements in connection with an
inquiry into the validity of the verdict, subject to certain exceptions.
Through a series of cases and hypotheticals drawn from actual cases,
this chapter gives readers a roadmap for how to address any jury
impeachment issue in practice.

Jury Impeachment Chapter
I. The Rule
Federal Rules of Evidence. Rule 606.
Juror’s Competency as a Witness….
(b) During an Inquiry into the Validity of
a Verdict or Indictment.

Prohibited Testimony or Other
Evidence. During an inquiry into the validity
(1)

of a verdict or indictment, a juror may not
testify about any statement made or incident
that occurred during the jury’s deliberations;
the effect of anything on that juror’s or
another juror’s vote; or any juror’s mental
processes concerning the verdict or
indictment. The court may not receive a
juror’s affidavit or evidence of a juror’s
statement on these matters.
(2) Exceptions. A juror may testify about
whether:
(A) extraneous prejudicial information was
improperly brought to the jury’s attention;
(B) an outside influence was improperly
brought to bear on any juror; or
(C) a mistake was made in entering the
verdict on the verdict form.
FED. R. EVID. 606(b).
In 2009, the Committee on Rules of Practice and Procedure of the
Judicial Conference of the United States Courts decided to “restyle”
the Federal Rules of Evidence. The goal in this project was to make
the Rules more user friendly rather than to enact substantive changes.
Below is a side by side comparison of the current Rule 606(b) and the
“restyled” Rule 606(b). Because the changes were intended to be
stylistic only, everything discussed in this chapter should continue to

1

be good law after the “restyled” Rules take effect on December 1,
2011.
Previous Rules Language

Restyled Rules Language

(b) Inquiry into validity of (b)During an Inquiry into the
verdict or indictment. Upon
Validity of a Verdict or
an inquiry into the validity of a
Indictment.
verdict or indictment, a juror
(1)Prohibited Testimony or
may not testify as to any matter
Other Evidence. During
or statement occurring during
an inquiry into the validity
the course of the jury’s
of a verdict or indictment, a
deliberations or to the effect of
juror may not testify about
anything upon that or any other
any statement made or
juror’s mind or emotions as
incident that occurred
influencing the juror to assent
during
the
jury’s
to or dissent from the verdict or
deliberations; the effect of
indictment or concerning the
anything on that juror’s or
juror’s mental processes in
another juror’s vote; or any
connection therewith. But a
juror’s mental processes
juror may testify about (1)
concerning the verdict or
whether extraneous prejudicial
indictment. The court may
information was improperly
not receive a juror’s
brought to the jury’s attention,
affidavit or evidence of a
(2) whether any outside
juror’s statement on these
influence
was
improperly
matters.
brought to bear upon any juror,
or (3) whether there was a
(2) Exceptions. A juror may
mistake in entering the verdict
testify about whether:
onto the verdict form. A juror’s
(A) extraneous prejudicial
affidavit or evidence of any
information
was
statement by the juror may not
improperly brought to
be received on a matter about
the jury’s attention;
which the juror would be
precluded from testifying.
(B) an outside influence
was
improperly
brought to bear on any

2

juror; or
(C) a mistake was made in
entering the verdict on
the verdict form.

II. Historical Origins
Excerpt from Colin Miller, Dismissed with Prejudice: Why Application of
the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other
Bias Violates the Right to Present a Defense, 61 BAYLOR L. REV. 872
(2009)
Prior to 1785, English courts “sometimes received” post-trial
juror testimony and affidavits concerning juror misconduct,
“though always with great caution.” In that year, English
Chief Justice Lord Mansfield decided Vaise v. Delaval, I.T.R.
11, where he was confronted with post-trial affidavits by
jurors indicating that “the jury being divided in their opinion,
had tossed up,” i.e., resolved the case by “flipping a coin or
some other method of chance determination.” Mansfield
deemed the affidavits inadmissible by applying the thenpopular Latin maxim, nemo turpitudinem suam allegans audietur (a
“witness shall not be heard to allege his own turpitude”).
According to Mansfield, jurors were not competent to
impeach their own verdicts, and thus themselves, because “a
person testifying to his own wrongdoing was, by definition,
an unreliable witness.” Vaise thus became the basis for
“Mansfield's Rule,” “a blanket ban on jurors testifying against
their own verdict,” although, according to Mansfield, posttrial testimony concerning jury misconduct could be
admissible if it came from another source, “such as from
some person having seen the [deliberations] through a
window, or by some such other means.”
***

3

Based upon “the prestige of the great Chief Justice,
[Mansfield's Rule] soon prevailed in England, and its
authority came to receive in this country an adherence almost
unquestioned” until the latter half of the nineteenth century.
The first major U.S. opinion challenging Mansfield’s Rule was Wright
v. Illinois & Mississippi Telegraph Co., 20 Iowa 195 (Iowa 1866), an 1866
opinion in which the Supreme Court of Iowa found that a trial court
erred by refusing to consider four juror affidavits alleging an illegal
quotient verdict, i.e., that their “verdict was determined by each juror
marking down such sum as he thought fit, and dividing the aggregate
by twelve and taking the quotient as their verdict.” In the years after
Wright created the “Iowa Rule,” as it became known, state courts
created new formulations of and variations on Mansfield’s Rule. In
1915, however, in McDonald v. Pless, 238 U.S. 264 (1915), the United
States Supreme Court’s last significant opinion on jury impeachment
before the drafting of the Federal Rules of Evidence, the Court
deemed juror testimony regarding an alleged quotient verdict
inadmissible. The Court noted that it had to “choose between
redressing the injury of the private litigant and inflicting the public
injury which would result if jurors were permitted to testify as to
what had happened in the jury room” and deemed the failure to
redress the former injury “the lesser of two evils.”
III. The Drafting of Federal Rule of Evidence 606(b)
In 1969, the Advisory Committee's first draft of what would become
Federal Rule of Evidence 606(b) merely precluded jurors from
impeaching verdicts through testimony “concerning the effect of
anything upon his or any other juror's mind or emotions as
influencing him to assent to or dissent from the verdict or indictment
or concerning his mental processes in connection therewith.” Citing
to the Iowa Rule, the Committee indicated that its proposed Rule
permitted “impeachment concerning the existence of conditions or
occurrences, ‘without regard to whether the happening [wa]s within
or without the jury room.’” In 1971, however, the proposed Rule was
hastily rewritten so that it also precluded jury impeachment regarding

4

“any matter or statement occurring during the course of the jury's
deliberations....”
The House rejected this new draft while the Senate endorsed it.
Eventually, the Senate and House Committees resolved the dispute in
the Senate’s favor. The Senate version did allow jurors to impeach
their verdicts through testimony concerning “whether extraneous
prejudicial information was improperly brought to the jury's attention
and on the question whether any outside influence was improperly
brought to bear on any jurors.” Most states have counterparts to
Federal Rule of Evidence 606(b) that generally preclude jury
impeachment, subject to the above two exceptions.
IV. Public Policy Underlying Federal Rule of Evidence 606(b)
The Advisory Committee's Note to Federal Rule of Evidence 606(b)
recognized three main values that are promoted by a rule that
generally precluded jury impeachment:


safeguarding the stability and finality of verdicts;



preventing the harassment of former jurors by losing parties
as well as the possible exploitation of disgruntled or
otherwise badly motivated ex-jurors; and



protecting the freedom of discussion and deliberation.

V. Supreme Court Precedent
Excerpt from Tanner v. United States, 483 U.S. 107 (1987)
JUSTICE O'CONNOR delivered the opinion of the Court.
Petitioners William Conover and Anthony Tanner were
convicted of conspiring to defraud the United States…and of
committing mail fraud….The United States Court of Appeals
for
the
Eleventh
Circuit
affirmed
the
convictions….Petitioners argue that the District Court erred
in refusing to admit juror testimony at a post-verdict hearing
on juror intoxication during the trial; and that the conspiracy
count of the indictment failed to charge a crime against the
United States. We affirm in part and remand.

5

….
I.
.…The day before petitioners were scheduled to be
sentenced, Tanner filed a motion, in which Conover
subsequently joined, seeking continuance of the sentencing
date, permission to interview jurors, an evidentiary hearing,
and a new trial. According to an affidavit accompanying the
motion, Tanner's attorney had received an unsolicited
telephone call from one of the trial jurors, Vera Asbul….
Juror Asbul informed Tanner's attorney that several of the
jurors consumed alcohol during the lunch breaks at various
times throughout the trial, causing them to sleep through the
afternoons….The District Court continued the sentencing
date, ordered the parties to file memoranda, and heard
argument on the motion to interview jurors. The District
Court concluded that juror testimony on intoxication was
inadmissible under Federal Rule of Evidence 606(b) to
impeach the jury's verdict. The District Court invited
petitioners to call any nonjuror witnesses, such as courtroom
personnel, in support of the motion for new trial. Tanner's
counsel took the stand and testified that he had observed one
of the jurors “in a sort of giggly mood” at one point during
the trial but did not bring this to anyone's attention at the
time….
Earlier in the hearing the judge referred to a conversation
between defense counsel and the judge during the trial on the
possibility that jurors were sometimes falling asleep. During
that extended exchange the judge twice advised counsel to
immediately inform the court if they observed jurors being
inattentive, and suggested measures the judge would take if
he were so informed….
….
As the judge observed during the hearing, despite the above
admonitions counsel did not bring the matter to the court
again….

6

Following the hearing, the District Court filed an order
stating that, “[o]n the basis of the admissible evidence offered
I specifically find that the motions for leave to interview
jurors or for an evidentiary hearing at which jurors would be
witnesses is not required or appropriate.”
The District Court also denied the motion for new trial….
While the appeal of this case was pending before the
Eleventh Circuit, petitioners filed another new trial motion
based on additional evidence of jury misconduct. In another
affidavit, Tanner's attorney stated that he received an
unsolicited visit at his residence from a second juror, Daniel
Hardy….Despite the fact that the District Court had denied
petitioners' motion for leave to interview jurors, two days
after Hardy's visit Tanner's attorney arranged for Hardy to be
interviewed by two private investigators….The interview was
transcribed, sworn to by the juror, and attached to the new
trial motion. In the interview Hardy stated that he “felt
like...the jury was on one big party.”…Hardy indicated that
seven of the jurors drank alcohol during the noon recess.
Four jurors, including Hardy, consumed between them “a
pitcher to three pitchers” of beer during various
recesses….Of the three other jurors who were alleged to have
consumed alcohol, Hardy stated that on several occasions he
observed two jurors having one or two mixed drinks during
the lunch recess, and one other juror, who was also the
foreperson, having a liter of wine on each of three
occasions….Juror Hardy also stated that he and three other
jurors smoked marijuana quite regularly during the
trial….Moreover, Hardy stated that during the trial he
observed one juror ingest cocaine five times and another
juror ingest cocaine two or three times….One juror sold a
quarter pound of marijuana to another juror during the trial,
and took marijuana, cocaine, and drug paraphernalia into the
courthouse….Hardy noted that some of the jurors were
falling asleep during the trial, and that one of the jurors
described himself to Hardy as “flying.”…Hardy stated that

7

before he visited Tanner's attorney at his residence, no one
had contacted him concerning the jury's conduct, and Hardy
had not been offered anything in return for his
statement….Hardy said that he came forward “to clear my
conscience” and “[b]ecause I felt ... that the people on the
jury didn't have no business being on the jury. I felt...that Mr.
Tanner should have a better opportunity to get somebody
that would review the facts right.”….
The District Court…denied petitioners' motion for a new
trial.
The Court of Appeals for the Eleventh Circuit
affirmed….We granted certiorari…to consider whether the
District Court was required to hold an evidentiary hearing,
including juror testimony, on juror alcohol and drug use
during the trial….
II.
…Petitioners assert that, contrary to the holdings of the
District Court and the Court of Appeals, juror testimony on
ingestion of drugs or alcohol during the trial is not barred by
Federal Rule of Evidence 606(b). Moreover, petitioners argue
that whether or not authorized by Rule 606(b), an evidentiary
hearing including juror testimony on drug and alcohol use is
compelled by their Sixth Amendment right to trial by a
competent jury.
By the beginning of this century, if not earlier, the nearuniversal and firmly established common-law rule in the
United States flatly prohibited the admission of juror
testimony to impeach a jury verdict….
Exceptions to the common-law rule were recognized only in
situations in which an “extraneous influence,” Mattox v. United
States, 146 U.S 140, 146 U.S. 149 (1892), was alleged to have
affected the jury. In Mattox, this Court held admissible the
testimony of jurors describing how they heard and read
prejudicial information not admitted into evidence. The

8

Court allowed juror testimony on influence by outsiders in
Parker v. Gladden, 385 U.S. 363, 386 U.S. 365, (1966) (bailiff's
comments on defendant), and Remmer v. United States, 347
U.S. 227, 347 U.S. 228-230, (bribe offered to juror). See also
Smith v. Phillips, 455 U.S. 209, (1982) (juror in criminal trial
had submitted an application for employment at the District
Attorney's office). In situations that did not fall into this
exception for external influence, however, the Court adhered
to the common-law rule against admitting juror testimony to
impeach a verdict. McDonald v. Pless, 238 U.S. 264, (1915)….
Lower courts used this external/internal distinction to
identify those instances in which juror testimony impeaching
a verdict would be admissible. The distinction was not based
on whether the juror was literally inside or outside the jury
room when the alleged irregularity took place; rather, the
distinction was based on the nature of the allegation. Clearly a
rigid distinction based only on whether the event took place
inside or outside the jury room would have been quite
unhelpful. For example, under a distinction based on
location, a juror could not testify concerning a newspaper
read inside the jury room. Instead, of course, this has been
considered an external influence about which juror testimony
is admissible….Similarly, under a rigid locational distinction
jurors could be regularly required to testify after the verdict as
to whether they heard and comprehended the judge's
instructions, since the charge to the jury takes place outside
the jury room. Courts wisely have treated allegations of a
juror's inability to hear or comprehend at trial as an internal
matter….
Most significant for the present case, however, is the fact that
lower federal courts treated allegations of the physical or
mental incompetence of a juror as “internal” rather than
“external” matters….
There is little doubt that postverdict investigation into juror
misconduct would in some instances lead to the invalidation
of verdicts reached after irresponsible or improper juror

9

behavior. It is not at all clear, however, that the jury system
could survive such efforts to perfect it. Allegations of juror
misconduct, incompetency, or inattentiveness, raised for the
first time days, weeks, or months after the verdict, seriously
disrupt the finality of the process....Moreover, full and frank
discussion in the jury room, jurors' willingness to return an
unpopular verdict, and the community's trust in a system that
relies on the decisions of laypeople would all be undermined
by a barrage of postverdict scrutiny of juror conduct….
….[P]etitioners argue that substance abuse constitutes an
improper “outside influence” about which jurors may testify
under Rule 606(b). In our view, the language of the Rule
cannot easily be stretched to cover this circumstance.
However severe their effect and improper their use, drugs or
alcohol voluntarily ingested by a juror seems no more an
“outside influence” than a virus, poorly prepared food, or a
lack of sleep.
In any case, whatever ambiguity might linger in the language
of Rule 606(b) as applied to juror intoxication is resolved by
the legislative history of the Rule….
The House Judiciary Committee described the effect of the
version of Rule 606(b) transmitted by the Court as follows:
“As proposed by the Court, Rule 606(b)
limited testimony by a juror in the course of
an inquiry into the validity of a verdict or
indictment. He could testify as to the
influence
of
extraneous
prejudicial
information brought to the jury's attention
(e.g. a radio newscast or a newspaper account)
or an outside influence which improperly had
been brought to bear upon a juror (e.g. a threat
to the safety of a member of his family), but
he could not testify as to other irregularities
which occurred in the jury room. Under this
formulation a quotient verdict could not be
attacked through the testimony of juror, nor

10

could a juror testify to the drunken condition of a
fellow juror which so disabled him that he could not
participate in the jury's deliberations.” (emphasis
supplied).
….The House Judiciary Committee, persuaded that the better
practice was to allow juror testimony on any “objective juror
misconduct,” amended the Rule so as to comport with the
more expansive versions proposed by the Advisory
Committee in earlier drafts, and the House passed this
amended version.
….[T]he Senate decided to reject the broader House version
and adopt the narrower version approved by the Court. The
Senate Report explained:
“[The House version's] extension of the
ability to impeach a verdict is felt to be
unwarranted and ill-advised.
“The rule passed by the House…would have
the effect of opening verdicts up to challenge
on the basis of what happened during the
jury's internal deliberations, for example,
where a juror alleged that the jury refused to
follow the trial judge's instructions or that
some of the jurors did not take part in
deliberations.
….
“As it stands then, the rule would permit the
harassment of former jurors by losing parties
as well as the possible exploitation of
disgruntled or otherwise badly-motivated exjurors.
“Public policy requires a finality to litigation.
And common fairness requires that absolute
privacy be preserved for jurors to engage in
the full and free debate necessary to the
attainment of just verdicts. Jurors will not be
able to function effectively if their

11

deliberations are to be scrutinized in post-trial
litigation. In the interest of protecting the jury
system and the citizens who make it work,
rule 606 should not permit any inquiry into
the internal deliberations of the jurors.”
The Conference Committee Report reaffirms Congress'
understanding of the differences between the House and
Senate versions of Rule 606(b):
“[T]he House bill allows a juror to testify
about objective matters occurring during the
jury's deliberation, such as the misconduct of
another juror or the reaching of a quotient
verdict. The Senate bill does not permit juror
testimony about any matter or statement
occurring during the course of the jury's
deliberations.”
…The Conference Committee adopted, and
Congress enacted, the Senate version of Rule
606(b).”
Thus, the legislative history demonstrates with uncommon
clarity that Congress specifically understood, considered, and
rejected a version of Rule 606(b) that would have allowed
jurors to testify on juror conduct during deliberations,
including juror intoxication. This legislative history provides
strong support for the most reasonable reading of the
language of Rule 606(b) -- that juror intoxication is not an
“outside influence” about which jurors may testify to
impeach their verdict.
….
Petitioners also argue that the refusal to hold an additional
evidentiary hearing at which jurors would testify as to their
conduct “violates the sixth amendment's guarantee to a fair
trial before an impartial and competent jury.” (emphasis in
original).

12

This Court has recognized that a defendant has a right to “a
tribunal both impartial and mentally competent to afford a
hearing.”….
….Petitioners' Sixth Amendment interests in an unimpaired
jury, on the other hand, are protected by several aspects of
the trial process. The suitability of an individual for the
responsibility of jury service, of course, is examined during
voir dire. Moreover, during the trial the jury is observable by
the court, by counsel, and by court personnel. See United States
v. Provenzano, 620 F.2d 985, 996-997 (CA3 1980) (marshal
discovered sequestered juror smoking marijuana during early
morning hours). Moreover, jurors are observable by each
other, and may report inappropriate juror behavior to the
court before they render a verdict. See Lee v. United States, 454
A.2d 770 (DC App.1982), cert. denied sub nom. McIlwain v.
United States, 464 U.S. 972, (1983) (on second day of
deliberations, jurors sent judge a note suggesting that
foreperson was incapacitated). Finally, after the trial a party
may seek to impeach the verdict by nonjuror evidence of
misconduct. See United States v. Taliaferro, 558 F.2d 724, 725726 (CA4 1977) (court considered records of club where
jurors dined, and testimony of marshal who accompanied
jurors, to determine whether jurors were intoxicated during
deliberations). Indeed, in this case the District Court held an
evidentiary hearing giving petitioners ample opportunity to
produce nonjuror evidence supporting their allegations.
In light of these other sources of protection of petitioners'
right to a competent jury, we conclude that the District Court
did not err in deciding, based on the inadmissibility of juror
testimony and the clear insufficiency of the nonjuror evidence
offered by petitioners, that an additional post-verdict
evidentiary hearing was unnecessary.
Notes
1. In the wake of Tanner, Indiana amended Indiana Rule of
Evidence 606(b) so that jurors can now testify “to drug or

13

alcohol use by any juror….” See Colin Miller, Amores Perros:
Indiana Firefigther Convicted of Running Pitbull-Fighting Operation Seeks
Jury Impeachment Based Upon Unadmitted Photo, EVIDENCEPROF
BLOG,
July
8,
2008,
http://lawprofessors.typepad.com/evidenceprof/2008/07/dogfighting-60.html. Other jurisdictions do not have such an
exception.
2. As noted, in its 1915 opinion in McDonald v. Pless, 238 U.S. 264,
the United States Supreme Court concluded that it had to
“choose between redressing the injury of the private litigant and
inflicting the public injury which would result if jurors were
permitted to testify as to what had happened in the jury room.”
Later in its opinion, the Court noted that the anti-jury
impeachment rule that it was announcing did not apply in
criminal cases. There is no such limitation in Federal Rule of
Evidence 606(b), and, obviously, the Court applied the Rule to
Tanner, a criminal case. Do you agree with the Court’s conclusion
in Pless or the current formulation of the Rule? Should the Rule
apply even in death penalty appeals? See Colin Miller, We The Jury:
Supreme Court Of Pennsylvania Refuses To Hear Allegations Of Extreme
Juror Racial Prejudice In Death Penalty Appeal, EVIDENCEPROF
BLOG,
December
19,
2008,
http://lawprofessors.typepad.com/evidenceprof/2008/12/606bcom-v-stee.html.
3. What sources of protection of a defendant’s right to a competent
jury does Justice O’Connor identify? Do you think that these
protections are sufficient?
VI. 606(b): The External/Internal Distinction
As Justice O’Connor found in Tanner, there is an external/internal
distinction in Rule 606(b). Jurors can impeach their verdicts based
upon anything external to the jury deliberation process, but they
cannot impeach their verdicts based upon anything internal to the jury
deliberation process. Examples of matters internal to the jury
deliberation process include claims that jurors (1) took the
defendant’s refusal to testify as evidence of his guilt, (2)

14

misunderstood jury instructions, (3) reached a majority or quotient
verdict, or (4) threatened each other.
Hypothetical 1: Charles Orange is charged with aggravated
sexual conduct and the lesser-included offense of indecency
with a child. The jury finds Orange “not guilty” of aggravated
sexual misconduct but “guilty” of indecency with a child.
After trial, jurors inform defense counsel that there was no
unanimity. Some jurors wanted to convict Orange of
aggravated sexual conduct while others wanted to acquit him
entirely. In the end, the jurors split the difference and
compromised, convicting Orange of the lesser-included
offense. Can the jurors impeach the verdict? See Orange v.
State, No. 06-08-00193-CR, (Tex. App. 6th 2008) 2009 WL
3851068; Colin Miller, Compromising Position: Court Of Appeals
Of Texas Notes That Rule 606(b) Precludes Jury Impeachment
Regarding Compromise Verdict. EVIDENCEPROF BLOG, Nov. 19,
2009,
http://lawprofessors.typepad.com/
evidenceprof/2009/11/606b-compromise--charles-eugeneorange-appellant-v-the-state-of-texas-appellee----sw3d-----2009-wl-3851068texapp-t.html.
Hypothetical 2: A jury found David Jackson guilty of
murder and sentenced to him death based upon the killing of
another inmate during a prison fight. Jackson thereafter
moved for a new trial, alleging that the jury erroneously
believed that even if Jackson were sentenced to life without
parole, it was still possible he could be released before the
end of his life, despite the district court's explicit instruction
to the contrary. In support of this contention, he proffered an
affidavit of an investigator who contacted jurors after the
trial. The affidavit stated that a number of jurors believed that
Jackson could be released early, as had happened with a
cooperating witness who testified at trial. Should the affidavit
be deemed admissible? See United States v. Jackson, No. 0641680 (5th Cir. 2008) 2008 WL 4901375; Colin Miller, How
Different Is Death?: Fifth Circuit Precludes Jury Impeachment Based
Upon Misunderstood Jury Instructions In Capital Case.

15

EVIDENCEPROF
BLOG,
Nov.
30,
http://lawprofessors.typepad.com/evidenceprof/
2008/11/essential-eleme.html.

2009,

A. 606(b)(2)(A): Extraneous Prejudicial Information
Rule 606(b)(2)(A) states that jurors may testify about “whether
extraneous prejudicial information was improperly brought to the
jury's attention…” “Extraneous prejudicial information is commonly
understood to mean information the jury receives outside the
courtroom.” United States v. Stewart, 317 F.Supp.2d 426, 431 (S.D.N.Y.
2004). Put another way, extraneous prejudicial information is
“information that was not admitted into evidence but nevertheless
bears on a fact at issue in the case.” Robinson v. Polk, 438 F.3d 350,
363 (4th Cir. 2006). Information does not need to appear overtly
prejudicial to be deemed prejudicial under Rule 606(b)(1). Thus, for
instance, in Bauberger v. Haynes, 666 F.Supp.2d 558 (M.D.N.C. 2009),
the court reversed a petitioner’s conviction for second degree murder
and other crimes after receiving testimony regarding a juror reading
to other jurors the dictionary definition of “malice,” which competed
with the legal definition of malice. In other words, if a juror uses any
relevant information learned after the start of trial but not admitted at
trial, she is using extraneous prejudicial information, and any juror
can later impeach that verdict.
Hypothetical 3: During an attempt to foil a kidnap and
ransom attempt, Detective Sirk strikes Henry Bradford with
his squad car twice. Bradford thereafter brings a § 1983 action
against Sirk. At trial, Sirk testifies that he struck Bradford a
second time to prevent him from escaping because Bradford
got up after initially being struck. Bradford testifies during
direct examination that he never got up after being struck the
first time. During cross-examination, however, when
questioned about events leading up to Sirk striking him,
Bradford invokes his Fifth Amendment privilege against selfincrimination. On Sirk’s motion, the judge strikes Bradford’s
testimony and instructs the jury to disregard Bradford’s
testimony. After the jury finds for Bradford, jurors submit
affidavits indicating that they considered Bradford’s stricken

16

testimony despite the judge’s instruction not to. Are the
affidavits admissible under Rule 606(b)? See Bradford v. City of
Los Angeles, 21 F.3d 1111 (9th Cir. 1994).
Hypothetical 4: Toymaker Mattel sues MGA Entertainment,
claiming that Carter Bryant, MGA’s creator of Bratz dolls,
created the doll's characters and the name Bratz while he was
under contract as a Barbie designer at Mattel. The jury found
in favor of Mattel. MGA subsequently moved for a mistrial.
MGA’s CEO was Iranian-born Isaac Larian, and it came out
after trial that Juror No. 8 said with regard to Persians and/or
Iranians that they “lie,” “stole ideas” and were “stubborn”
and “rude.” According to several jurors, including Juror No.
8 herself, these opinions did not originate with Juror No. 8
but instead came from her husband when she asked him
about the trial. Can the jurors impeach their verdict? See
Bryant v. Mattel, Inc., 2008 WL 3367605 (C.D. Cal 2008); Colin
Miller, In A Barbie World: Court Denies Motion For Mistrial In
Bratz Lawsuit After Horribly Misguided Rule 606(b) Ruling.
EVIDENCEPROF
BLOG,
Aug.
17,
2008,
http://lawprofessors.typepad.com/evidenceprof/2008/08/6
06b-bryant-v-m.html. What if these opinions originated with
Juror No. 8, and she did not consult her husband? See infra
VIII.D. What if Juror No. 8 indicated during voir dire that
ethnicity would not influence her decision as a juror in any
way? See infra VII.B.
Hypothetical 5: A teenage boy from a city slum is charged
with murdering his father with a switch-blade knife. The boy
owned the same type of knife used in the murder and claimed
that he lost it through a hole in his pocket before the murder.
The prosecutor tried to establish the distinctiveness of the
knife by having the storekeeper of the store where the boy
purchased the knife testify that he had never seen another
knife like it. During deliberations, Juror No. 8 displays to the
other jurors a knife similar to the knife used in the murder
which he purchased from a pawn shop two blocks from the
boy’s residence. Does the knife constitute extraneous

17

prejudicial information? See the movie 12 ANGRY MEN
(MGM 1957).
It could be said that the modern counterpart to the situation in 12
Angry Men is the “Google mistrial,” i.e., jurors using internet searches
to learn information about a case. See John Schwartz, As Jurors Turn to
Web, Mistrials Are Popping Up, N.Y. TIMES, March 17, 2009. To
remedy this problem, some judges have begun instructing jurors “not
to Google the case online.” See Colin Miller, Avoiding The Google
Mistrial: Story Reveals Measures Oklahoma Judge Has Taken In Light Of
New Technologies, EVIDENCEPROF BLOG, Oct. 1, 2009,
http://lawprofessors.typepad.com/evidenceprof/2009/10/jurytechnologyhttpwwwnewson6comglobalstoryasps11226092.html.
Another problem is jurors improperly e-mailing each other during
trial and deliberations. See Colin Miller, In Birmingham, They Love The
Governor: HealthSouth Appeal Prompts Interesting Hearsay And Jury
Impeachment Rulings, EVIDENCEPROF BLOG, March 8, 2009,
http://lawprofessors.typepad.com/evidenceprof/2009/03/coconspirator.html. Would Rule 606(b) prevent testimony regarding
such e-mails?
B. 606(b)(2)(B): Improper Outside Influences
Rule 606(b)(2)(B) states that jurors may testify about “whether any
outside influence was improperly brought to bear upon any juror.”
An improper outside influence “is an outside influence upon the
partiality of the jury, such as ‘private communication, contact, or
tampering...with a juror….’” Robinson v. Polk, 438 F.3d 350, 363 (4th
Cir. 2006). Conversely, jurors cannot testify concerning internal
influences from other jurors, no matter how improper. See, e.g.,
Dickson v. Subia, 2010 WL 1992580 (E.D. Cal. 2010) (precluding jury
impeachment concerning allegations that a juror who wanted to vote
“not guilty” was verbally harassed and physically threatened by other
jurors).
Hypothetical 6: Paul Lewis is charged with first-degree
sexual offense, robbery with a dangerous weapon, and felony
breaking and entering. Among the jurors hearing the case was
Deputy Eddie Hughes. Deputy Hughes actually knew Lewis

18

because he transported him to Central Prison after his arrest.
While Hughes transported Lewis, Lewis disclosed to him that
he had failed a polygraph test. However, despite Hughes
admitting these facts during voir dire, Lewis’ attorney did not
use a preemptory challenge to remove Hughes. After Lewis
was convicted, defense counsel learned that during a break in
Lewis’ trial, Deputy Hughes went to the Sheriff's
Department, where a detective said to him, "[I]f we have...a
deputy sheriff for a juror, he would do the right thing. You
know he flunked a polygraph test, right?” Can Hughes
impeach the verdict? What about if Hughes was unaware of
the failed polygraph test before trial? See State v. Lewis, 654
S.E.2d 808 (N.C.App. 2008); Colin Miller, Do the Right Thing:
Court Finds Detective Pressure Constitutes an Improper Outside
Influence Under Rule 606(b). EVIDENCEPROF BLOG, Jan. 22,
2008,
http://lawprofessors.typepad.com/evidenceprof/2008/01/d
o-the-right-th.html.
Hypothetical 7: Joaquin Valenica-Trujillo is charged with
money laundering and several drug crimes. On the fourth day
of deliberations, the jury finds him guilty of these crimes.
After Valencia-Trujillo is convicted, defense counsel learns
that the jury foreman booked a flight to Las Vegas which
departed on the fourth day of deliberations and pressured
other jurors to find the defendant guilty so that he could
make his flight. Can a juror impeach the verdict? See United
States v. Valencia-Trujillo, No. 09-15766 (11th Cir. 2010) 2010
WL 2163105; Colin Miller, Travel Plans: Eleventh Circuit
Precludes Jury Impeachment Regarding Foreman with Flight on 4th Day
of Deliberations Pressuring Jury to Hurry. EVIDENCEPROF BLOG,
June
5,
2010,
http://lawprofessors.typepad.com/evidenceprof/2010/06/6
06b-vacation--us-v-valencia-trujilloslip-copy-2010-wl2163105ca11-fla2010.html. What if a juror admitted that he
changed his vote from “not guilty” to “guilty” solely so that
he could make an annual fishing trip? See State v. Miller, 772

19

N.W.2d 188 (Wis.App. 2009); Colin Miller, I’d Rather be
Fishing: Court Refuses to Allow Jury Impeachment Based Upon Juror
Changing Vote to Guilty to Make Annual Fishing Trip.
EVIDENCEPROF BLOG, May 13, 2009, http://lawprofessors.
typepad.com/evidenceprof/2009/05/606b--state-vmillerslip-copy-2009-wl-1081745wisapp2009.html.
C. 606(b)(2)(C): Mistake in Entering the Verdict on the
Verdict Form
When Rule 606(b) was initially enacted, it only contained the previous
two exceptions. Nonetheless, many courts began creating an
exception to the Rule for clerical errors in entering the verdict on the
verdict form. In 2006, the Rule was amended to allow jurors to testify
about “whether there was a mistake in entering the verdict onto the
verdict form.” The accompanying Advisory Committee’s Note
indicates that
In adopting the exception for proof of
mistakes in entering the verdict on the verdict
form, the amendment specifically rejects the
broader exception, adopted by some courts,
permitting the use of juror testimony to prove
that the jurors were operating under a
misunderstanding about the consequences of
the result that they agreed upon….The
broader exception is rejected because an
inquiry into whether the jury misunderstood
or misapplied an instruction goes to the
jurors' mental processes underlying the
verdict, rather than the verdict's accuracy in
capturing what the jurors had agreed upon….
Instead, according to the Note, “the exception established by the
amendment is limited to cases such as ‘where the jury foreperson
wrote down, in response to an interrogatory, a number different from
that agreed upon by the jury, or mistakenly stated that the defendant
was ‘guilty’ when the jury had actually agreed that the defendant was
not guilty.’”

20

Hypothetical 8: Emily Kennedy, the administratrix of the
estate of Helen A. Hopkinson, brings an action against
Stanley Sticker sounding in trespass and wrongful cutting of
timber. At the end of trial, the jury purportedly awards the
plaintiff $5,000 in damages. It is later determined that the jury
agreed to award the plaintiff $500 in damages, with the
foreperson erroneously reducing that verdict to the verdict
form. Can jurors testify about the error? See Kennedy v. Stocker,
70 A.2d 587 (Vt. 1950).
Hypothetical 9: A plaintiff seeks $50,000 in damages from a
defendant, and the defendant counterclaims for $50,000 in
damages. The jury's verdict form appears to award the
plaintiff $20,000 in damages and the defendant $30,000 in
damages (e.g., $10,000 to the defendant). After the verdict is
entered, jurors come forward and claim that the $20,000 in
damages listed for the plaintiff was the net amount that they
intended to award it, and the $30,000 allegedly awarded to the
defendant was intended to be the amount deducted from the
$50,000 sought by the plaintiff to reach the total final billing
of $20,000. Will the juror affidavits be admissible to “correct”
the verdict? Cf. Carolina Homes by Design, Inc. v. Lyons, No.
COA09-74 (N.C.App. 2010) 2010 WL 2367110; Colin Miller,
Standard Deduction: Court Of Appeals Of North Carolina Precludes
Jury Impeachment Regarding Incorrect Damages Being Awarded.
EVIDENCEPROF
BLOG,
June
16,
2010,
awprofessors.typepad.com/evidenceprof/2010/06/606b-carolina-homes-by-design-inc-v-lyonsslip-copy-2010-wl2367110-tablencapp2010.html.
VII. Situations Where Rule 606(b) Does Not Apply
A. Testimony by Nonjurors
As the text of Rule 606(b) and Justice O’Connor’s opinion in Tanner
make clear, Rule 606(b) only governs testimony by jurors. Therefore,
if a nonjuror observes jury misconduct, she can impeach the jury’s
verdict. For example, in Tanner, Justice O’Connor cited to the Fourth
Circuit’s opinion in United States v. Taliaferro, 558 F.2d 724 (4th Cir.

21

1977), in which a judge sent a Marshal to accompany jurors to a
private club to deliberate and the Marshal was allowed to impeach
their verdict through testimony regarding their consumption of
alcoholic beverages during deliberations.
Hypothetical 10: Robert Lamb is convicted of the firstdegree murder of his sister. After Lamb was convicted, he
brought a motion for a new trial based upon the following
facts: The trial judge, who had a scheduling conflict, left the
jury in another judge's charge on its second day of
deliberations. Thereafter, the foreman told the bailiff he had a
note for the judge. The bailiff saw the note, which asked
about the difference between first- and second-degree
murder, but he neither took possession of it nor alerted the
parties or either judge. Instead, taking matters into his own
hands, the bailiff told the jury the judge was out of the
jurisdiction and to read the jury instructions. Can the bailiff
testify concerning these facts? See Lamb v. State, No. 51457
(Nev. 2011) 2011 WL 743193; Colin Miller, No One But the
Bailiff: Supreme Court of Nevada Finds Bailiff’s Improper Behavior
Insufficient to Award New Trial. EVIDENCEPROF BLOG, Mar. 18,
2011,
awprofessors.typepad.com/evidenceprof/2011/03/606blamb-v-state-p3d-2011-wl-743193nev2011.html.
B. Juror Testimony Not Offered to Impeach a Verdict
Rule 606(b) only applies when a party seeks to impeach a verdict after
a verdict has been entered. Before a verdict has been entered, Rule
606(a) governs juror testimony. Even after a verdict has been entered,
Rule 606(b) only governs juror testimony when offered as part of an
inquiry into the validity of the verdict. Thus, most courts have held
that if a juror makes a claim during voir dire (e.g., that race would not
influence his decision) and then contradicts that claim during
deliberations (e.g., by making racist comments), another juror may
testify concerning the contradiction. Indeed, in State v. Hidanovic, 747
N.W.2d 463, 474 (N.D. 2008), the Supreme Court of North Dakota
noted that “[c]ourts have universally held that provisions similar to
N.D.R.Ev. 606(b)…do not preclude evidence to show that a juror

22

lied on voir dire….” Even though such testimony would be offered as
part of an inquiry into whether a juror lied during voir dire, it could
have the effect of invalidating the verdict because, as the United
States Supreme Court held in McDonough Power Equipment, Inc. v.
Greenwood, 454 U.S. 548, 556 (1984), a party can obtain a new trial by
demonstrating that a juror failed to answer honestly a material
question on voir dire and that a correct response would have provided
a basis for a challenge for cause. See, e.g., Merchant v. Forest Family
Practice Clinic, P.A., No. 2009-CA-01622-SCT (Miss. 2011) 2011 WL
3505309.
But if the court’s conclusion in Hidanovic about courts universally
reaching this conclusion were once true, it is no longer true. In United
States v. Benally, 546 F.3d 1230 (10th Cir. 2008), no juror responded
“yes” when asked on voir dire: “Would the fact that the defendant is a
Native American affect your evaluation of the case?” and “Have you
ever had a negative experience with any individuals of Native
American descent? And, if so, would that experience affect your
evaluation of the facts of this case?” The day after Benally, a Native
American man, was convicted of assaulting a BIA officer, a juror told
defense counsel, among other things, that during deliberations some
jurors discussed the need to “send a message back to the
reservation.” and one juror said that ….“[w]hen Indians get alcohol,
they all get drunk,” and that when they get drunk, they get violent….
The district court allowed Benally to use juror affidavits to this effect
in support of his motion to vacate the verdict and receive a new trial.
The United States Court of Appeals for the Tenth Circuit, however,
reversed and deemed the affidavits inadmissible because it found that
Benally was using the affidavits to show that jurors lied during voir
dire as a vehicle for “question[ing] the validity of the verdict.” The
court did acknowledge, though, that the affidavits would have been
admissible in contempt proceedings against any dishonest jurors.
Nonetheless, most courts still allow jurors to testify regarding jury
deliberations to prove that a jury lied during voir dire. But cf. United
States v. Snipes, No. 10-15573 (11th Cir. 2011) 2011 WL 3890354
(ignoring an argument by actor Wesley Snipes that he should be
granted leave to interview jurors concerning whether they lied during

23

voir dire regarding their acceptance of the presumption of innocence);
Colin Miller, A Taxing Matter, Take 2: 11th Circuit Affirms District
Court's Ruling Denying Wesley Snipes' Motion For A New Trial.
EVIDENCEPROF
BLOG,
Sep.
7,
2011,
http://lawprofessors.typepad.com/evidenceprof/2011/09/
yesterday-the-eleventh-circuit-decided-united-states-v-snipes-2011wl-3890354-11th-cir-2011-in-the-opinion-the-court.html.
VIII. Splits in Authority
A. States without Counterparts to Rule 606(b)
Some states, like Washington, do not have counterparts to Federal
Rule of Evidence 606(b) and/or allow post-verdict juror testimony
regarding overt acts during jury deliberations but disallow juror
testimony regarding a juror’s mental process in reaching a verdict.
For instance, in Washington, a juror can impeach a verdict unless the
information provided “inheres in the verdict,” i.e., unless it relates to
“[j]uror motives, the effect the evidence had on the jurors, the weight
given to the evidence by particular jurors, and the jurors’ intentions
and beliefs….” State v. Rooth, 121 P.3d 755, 760-61 (Wash.App. Div. 2
2005); see also Colin Miller, A Trial That Will Live In Infamy?:
Washington Case Reveals That The State Has No Version Of Rule 606(b),
EVIDENCEPROF BLOG (February 18, 2009), http://lawprofessors.
typepad.com/evidenceprof/2009/02/a-washington-ju.html.
B. Minnesota’s Violence Exception to Rule 606(b)
In most jurisdictions, jurors cannot impeach their verdicts through
allegations of actual or threatened violence against them by other
jurors. Under Minnesota Rule of Evidence 606(b), however, jurors
may ….“testify as to any threats of violence or violent acts brought
to bear on jurors, from whatever source, to reach a verdict.”….
In Gaines v. Tenney, No. E2008-02323-COA-R3-CV (Tenn.Ct.App.
2010) 2010 WL 199628, a juror claimed that she changed her vote
from “not guilty” to “guilty” because she was subjected to threatened
and actual violence by other jurors, such as the foreman reaching
across a table and throwing paper at her. The Court of Appeals of
Tennessee refused to read a violence exception into Tennessee Rule

24

of Evidence 606(b). Do you think that the juror should have been
able to testify? What if the juror’s claim was that the foreman stood
between her and the door and prevented her from telling the judge
that she was voting “not guilty”? See Colin Miller, Turkey Of An
Opinion: Court Precludes Jury Impeachment Despite Foreperson Blocking Door
To Prevent Juror From Reporting "Not Guilty" Vote In Thanksgiving Related
Case,
EVIDENCEPROF
BLOG,
Nov.
26,
2009,
http://lawprofessors.typepad.com/
evidenceprof/2009/11/thanksgivingpanella-v-marshallslip-copy2009-wl-2475007edcal2009.html.
If you agree with Minnesota’s version of the rule, do you believe that
courts should draw the line at violence? According to the Committee
Comment to Minnesota Rule of Evidence 606(b), ….“The trial court
must distinguish between testimony about ‘psychological’
intimidation, coercion, and persuasion, which would be inadmissible,
as opposed to express acts or threats of violence.”…. Do you see a
distinction between a juror threatening another juror’s physical wellbeing unless she changes her vote and a juror threatening another
juror’s mental or emotional well-being?
C. Testimony About the Effect on Deliberations of
Extraneous Prejudicial Information/Improper
Outside Influences
As noted above, jurors can impeach their verdicts based upon
allegations of extraneous prejudicial information and/or improper
outside influences. But can they testify about the effect of such
information/influences on their deliberations? The courts are split.
For instance, in the Bratz case, the United States District Court for
the Central District of California allowed jury impeachment regarding
the statements by Juror No. 8 and her husband regarding Persians
and/or Iranians. See VI.0, Hypothetical 2, supra at 13, The court,
however, affirmed the verdict in favor of Mattel after it received
testimony from jurors indicating that Juror No. 8's “remarks were
made after agreement had been reached on all subjects upon which
the jury ultimately reached a verdict.” Other courts, however, hold
that jurors can only testify concerning information/influences, and it
is then up to the judge objectively to determine the probable effect

25

that they would have on the average juror. See United States v. Lloyd,
269 F.3d 228, 238 (3rd Cir. 2001). In other words, in these
jurisdictions, jurors could testify that they read an article that the
defendant failed a polygraph test, but they could not testify that the
article changed their vote from “not guilty” to “guilty” or that the
jury was deadlocked before the article was read. Considering the
language of Rule 606(b), which interpretation do you think is correct?
D. Allegations of Juror Racial, Religious, or Other Bias
When Jurors Are Not Questioned Regarding Bias on

Voir Dire

As noted, in Tanner v. United States, the United States Supreme Court
found that a defendant’s right to a competent jury is not violated by the
application of Rule 606(b) to allegations of jurors sleeping and using
drugs and alcohol during trial and deliberations. But does application
of the Rule to allegations of juror racial, religious, or other bias
violate a defendant’s right to an impartial jury or some other
constitutional right? First, a few courts have found that the Rule does
not apply to such allegations because they constitute extraneous
prejudicial information. See, e.g., State v. Bowles, 530 N.W.2d 521, 536
(Minn. 1995). And at least one court has found that such bias
constitutes an outside improper influence. See United States v. Taylor,
2009 WL 311138 (E.D. Tenn. 2009). Most courts, though, hold that
juror bias is internal to the jury deliberation process and that
allegations regarding such bias are inadmissible under Rule 606(b). See
also Colin Miller, Dismissed with Prejudice?: Eastern District of Tennessee
Issues Strange Opinion in Appeal Alleging Juror Racial Bias.
EVIDENCEPROF
BLOG,
Feb.
14,
2009,
http://lawprofessors.typepad.com/evidenceprof/2009/02/i-amcurrently.html.
Some courts, though, hold that, despite the language of Rule
606(b), Constitutional considerations might allow or require courts to
permit jury impeachment regarding such bias. For instance, in United
States v. Villar, 586 F.3d 76 (1st Cir. 2009), hours after a jury convicted
a Hispanic man of bank robbery, a juror e-mailed defense counsel
that another juror said during deliberations, “I guess we’re profiling
but they cause all the trouble.” The district court allowed jury

26

impeachment on this subject, and the First Circuit affirmed, agreeing
with the “[m]any courts [which] have recognized that Rule 606(b)
should not be applied dogmatically where there is a possibility of
juror bias during deliberations that would violate a defendant's Sixth
Amendment rights.”
Other courts, however, disagree, such as the Tenth Circuit in
United States v. Benally, 546 F.3d 1230 (10th Cir. 2008). See VII.0 supra
at 17. In addition to finding that Rule 606(b) prevented juror
testimony regarding juror racial bias during deliberations to prove
that jurors lied during voir dire, the court found that the Sixth
Amendment right to an impartial jury did not trump Rule 606(b) and
allow such testimony. Benally filed a petition for writ of certiorari
regarding (1) whether jurors can generally testify about allegations of
racial bias during deliberations under the Sixth Amendment, and (2)
whether Rule 606(b) allows jurors to testify about allegations of racial
bias during deliberations when jurors indicated during voir dire that
race would not influence their decision as a juror in any way. The
United States Supreme Court denied the petition. Which approach do
you prefer?
IX. Jury Impeachment Pleadings
Some concise examples of motions connected to evidence sought to
be admitted or excluded under Rule 606(b) can be found at:


Williams v. Hall, 2009 WL 4060880 (D.Or. 2009) (Reply to
Response in Opposition to Motion for Order Permitting
Juror Interviews);



Pierson v. Ford Motor Co., 2009 WL 2704593 (N.D.Cal. 2009)
(Plaintiff's Opposition to Defendant 's Third Motion to
Adjust the Verdict Based on Clerical Error, and, in the
Alternative, Request for Evidentiary Hearing); and



Fuller v. Fiber Glass Systems, L.P., 2009 WL 461992 (E.D.Ark.
2009) (Defendant’s Response to Court’s Query).

27