May a party moving for a new trial use testimony about juror deliberations to show juror dishonesty during voir dire?
Upon the return of an unanimous verdict in favor of the defendant in a vehicular accident resulting in personal injury, the plaintiff filed a motion for a new trial, alleging juror misconduct as a basis for a new trial. That motion relied on a juror’s testimony about statements made during the jury’s deliberation by the foreperson that suggested she had withheld information during the jury selection process. Federal Rule of Evidence 606(b) (“FRE 606(b)”) allows the introduction of juror testimony only in very limited circumstances, and this case should determine whether the testimony offered here does or does not fall within one of those exceptions. This case has greater implications for the sanctity of jury deliberations, as well as the balance between the right of civil litigants to a fair trial and the importance of finality in verdicts. This decision should also clarify for lower federal courts the application of FRE 606(b).
Questions as Framed for the Court by the Parties
Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.
On August 4, 2006, Respondent Randy Shauers (Respondent’s) pick-up truck collided with the Petitioner Gregory Warger (Petitioner’s) motorcycle. Petitioner Warger required surgical amputation of his leg following the collision. Warger sued Shauers for negligence in the United States Federal District Court for the District of South Dakota. Shauers denied negligence and argued that Warger was contributorily negligent (barring Warger’s recovery under state law). Preceding the trial, both attorneys conducted voir dire of the jurors before empaneling them. Neither attorney’s voir dire was subject to time constraints. Neither attorney asked whether the jurors knew of a friend or family member that had been involved in a serious car crash. Yet, the respondent’s Shauers’ attorney did ask the foreperson of the jury, a woman named Whipple, whether the petitioner’s severe injury would cloud her judgment. Juror Whipple responded that the injury would not affect her decision.
The jury trial began on September 20, 2010. The jury returned a unanimous defense verdict. After the conclusion of the trial, however, Warger’s counsel filed a motion for a new trial under Federal Rule of Civil Procedure 59 alleging juror misconduct as a basis for a new trial. The counsel’s basis for the motion was an affidavit made by a juror named Titus (who had joined in the defense verdict). Juror Titus within her affidavit stated that Juror Whipple’s daughter had been in a car accident in which she had been at fault. Juror Whipple repeatedly referred to her daughter’s car accident as an argument to support the Shauers' case. Warger’s counsel offered no other affidavits to support his motion for a new trial.
The Federal District Court of South Dakota dismissed Warger's motion for a new trial on all grounds stating that (1) testimony on jury deliberations is barred under Federal Rule of Evidence 606(b) (“FRE 606(b)”) and (2) that the testimony did not fit under any exception within that rule. The Eighth Circuit Court of Appeals unanimously affirmed the lower court’s decision, holding that the jury’s conclusion was reasonable. It also held that courts must adhere to “strict compliance with the rule” to protect jury deliberations.
The Supreme Court will determine the extent to which juror testimony is protected during jury deliberation. Specifically, the Court will decide whether juror testimony demonstrating a juror’s dishonesty during voir dire is admissible under FRE 606(b).
FRE606(b)(1) was enacted in 1975 and amended in 2006 to allow testimony for new trials if the testimony showed that the jury had filled out the jury form incorrectly. FRE606(b)(1) was preceded by a rule at common law.
Warger argues that FRE 606(b) allows the introduction of testimony demonstrating juror dishonesty during voir dire because this information is not being used to challenge the validity of the verdict; rather, it is being used to show juror dishonesty. On the other hand, Shauers argues that under FRE 606(b), a party moving for a new trial based on juror dishonesty during voir dire cannot introduce juror testimony about statements made during deliberation to show dishonesty because when a party moves for a new trial, the party is asserting an error in the verdict.
INQUIRY INTO THE VALIDITY OF A VERDICT FOR PURPOSES OF FRE 606(b)(1)
Warger argues that an inquiry into juror dishonesty during voir dire does not constitute an inquiry into the validity of a verdict for the purposes of FRE 606(b)(1), which forbids such an inquiry. Warger states that FRE 606(b) focuses only on the jury verdict, thus, FRE 606(b) applies only to juror testimony used to challenge a verdict or indictment. Accordingly, Warger argues, a juror can testify about the deliberation process so long as the court is not examining the validity of a verdict. Warger claims that Titus’s affidavit is distinct from the verdict because the affidavit is not testimony used to challenge the validity of the verdict; rather, it establishes Whipple’s dishonesty during voir dire.
Shauers claims that Warger misconstrues FRE 606(b) because the Rule does not distinguish between statements made during deliberations that affected the verdict and those that did not. Shauers argues that FRE 606(b) bars all juror testimony regarding statements made during jury deliberation even if the testimony is not used to examine the jury’s decision-making process in reaching the verdict.
EXTRANEOUS PREJUDICIAL INFORMATION
Warger contends that FRE 606(b) creates an exception for admitting juror testimony that shows that “extraneous prejudicial information” existed. Further, Warger states that extraneous prejudicial information admits juror testimony into evidence if the statements made during deliberation would have disqualified that juror from jury service. Warger argues that statements made during deliberation that show juror dishonesty during voir dire qualify as “extraneous prejudicial information” pursuant to FRE 606(b)(2)(A) because the information about Whipple being unwilling to award damages would have disqualified her from jury service.
Shauers responds that a juror’s personal experiences and biases are not extraneous prejudicial information. Rather, Shauers argues, a juror’s knowledge regarding the facts at issue in the case is extraneous prejudicial information under FRE 606(b). Shauers reasons that in this case, there is no claim that Juror Whipple knew any undisclosed facts about the accident that were inappropriate for the jury to consider. Shauers asserts that the jury had the right to consider their common knowledge, ordinary experiences, and daily observations—which in Whipple's case included the experience of her daughter’s car accident.
COMMON LAW RULE
Warger argues that the common law predecessor to FRE 606(b) did not exclude juror testimony about dishonesty during voir dire. Warger states that the common-law precursor to FRE 606(b) did not examine the configuration or selection of the jury. Instead, Warger argues, the common-law rule only barred jurors from testifying about the jury’s decision-making process. However, Warger states that the common-law rule allowed juror testimony about deliberations when showing juror dishonesty during voir dire. Warger relies on Clark v. United States, which states that the common law rule concerned only issues relating directly to the verdict, making admissible into evidence juror testimony concerning dishonesty during voir dire.
Shauers argues that FRE 606(b)’s common law predecessor supports the exclusion of juror testimony like Titus’s. Shauers claims that Warger’s reliance on Clark is inherently flawed because Clark did not involve an attempt to vacate a verdict. Shauers argues there is a distinction from Clark here because Clark concerned a criminal contempt proceeding. As such, Shauers asserts that Clark only allows the use of juror testimony to show dishonesty during voir dire for purposes of contempt proceedings. Shauers argues that FRE606(b) prohibits from evidence all statements made during jury deliberation. Therefore, Shauers argues that FRE606(b) does not only apply to statements made during deliberation that directly relate to the verdict.
Drafting History and Subsequent Interpretation of FRE 606(b)
Warger states that the drafters of FRE 606(b) did not intend to extend the common law rule to bar the admission of testimony that shows juror dishonesty during voir dire. Warger states that FRE 606(b) was drafted alongside decisions that permitted the introduction of juror testimony to prove dishonesty during voir dire. Warger maintains that the initial draft of FRE 606(b) did not restrict testimony concerning statements made or incidents that occurred during deliberations. Instead, according to Warger, the draft rule concentrated on barring testimony concerning a juror's mental state when reaching a verdict. Warger states that a common law principle is only overlooked when a statute’s language directly addresses the issue. Therefore, Warger concludes that the common law principal cannot be reinterpreted to ban the admission of juror testimony that shows dishonesty during voir dire because the language of FRE606(b) does not directly address the issue.
Shauers argues that the legislative history of FRE 606(b) demonstrates that Congress rejected the notion that it permitted jurors to testify about juror conduct during deliberations. Shauers states that the Senate rejected the earlier draft of the bill because the proposed rule admitting testimony regarding juror dishonesty would inappropriately enhance a party’s power to impeach a verdict. Congress adopted the version of the FRE 606(b) that deliberately prohibited inquiries into jury deliberations. Shauers further argues that no precedent supports Warger’s claim that the common law principal cannot be destroyed because the language of FRE606(b) did not directly state it was repealing the common-law principal. Shauers states that when a statute is explicit and unambiguous, the common law interpretation will not be favored (in fact, the common law rule is superseded by the rule within the statute). Thus, Shauers argues that Warger's interpretive method favoring the common law is mistaken because FRE 606(b) is plain on its face.
In this case, the Supreme Court will examine the scope of protection afforded jurors during the deliberation process. FRE 606(b) bars evidence of juror testimony pertaining to statements made by jurors during jury deliberation. Warger argues that statements from jury deliberation that show juror dishonesty during jury selection should be admissible under FRE 606(b) because the evidence does not attack the verdict directly, but instead demonstrates prejudice that a juror introduces into a trial when he or she lies during jury selection, thereby depriving the defendant of an impartial trial. Shauers argues that juror statements made in deliberation cannot be admitted into evidence under FRE 606(b) because juror statements demonstrating juror dishonesty do attack the verdict when a party is making a motion for a new trial.
PROTECTING JURIES IN ORDER TO ENSURE AN IMPARTIAL TRIAL
Professors of Law submitting a brief in support of Warger contend that FRE 606(b) permits juror testimony to be used as evidence in order to prove juror dishonesty during voir dire. These professors state that the constitutional right to a fair and impartial jury will be destroyed if the Court interprets FRE 606(b) to ban juror testimony as evidence. They argue that only statements expressed during jury deliberation can demonstrate dishonesty during voir dire; thus, failing to admit this testimony into evidence removes any method of recourse for a litigant facing a trial with a biased jury.
The United States, which submitted a brief in support of Shauers, argues that litigants cannot use any means possible to uphold their right to a fair and impartial jury because other methods exist to protect the right to a fair and impartial jury. The United States asserted that these methods include: voir dire examination, oversight of the jury by judge, oversight of jurors by one another with ample opportunity to report possible misconduct to the court before the jurors render a verdict, and post-verdict impeachment of a verdict via non-juror evidence of misconduct. The United States further notes that before the verdict is rendered, jurors can notify the judge of biased statements made during deliberation.
Warger asserts that full and frank discussion in the deliberation room will not be threatened by this use of juror testimony. Warger argues that jurors currently do not expect their deliberations to always remain private because juror testimony regarding deliberations can already be admitted into evidence, except when the testimony threatens the validity of a verdict or indictment. Warger believes that it is implausible that admittance into evidence of juror testimony would have a “chilling effect” because—before the jury reaches its verdict—jury members can notify the judge of statements demonstrating dishonesty during voir dire. Warger also argues that there is no evidence that juror harassment occurs more often in jurisdictions that allow the introduction of jury testimony. Warger states that rules limiting post-verdict contact with jurors counteract such harassment. Furthermore, judges have the authority to enforce restrictions in jurisdictions that have no court rules concerning jury contact post-verdict.
The amicus brief of the United States in support of the respondent argues that admitting juror testimony to show dishonesty during voir dire would discourage full and frank discussion in the jury room. The United States contends that the possibility of testimony being investigated will result in jury members being less candid during deliberations.The amicus brief of the Law Professors in support of Shauers argue that Warger’s reading of FRE 606(b) would result in juror harassment. The Professors further claim that a lawyer’s ethical obligation to represent the client vigorously will compel lawyers to pursue post-trial dishonesty claims.
FINALITY OF THE JUDICIAL PROCESS
Warger argues that the policy interest in protecting the finality of the jury verdict is outweighed by the interest in eradicating any corruption in the trial by jury. Warger states that the Founders did not intend for the interest in protecting a verdict’s finality to trump the constitutional right to a fair trial. Warger states that the empanelment of a dishonest juror threatens an ongoing trial and its verdict, thus the policy interest in finality must yield to the interest of a fair and impartial jury.
Supporters of Shauers argue that the finality of the judicial process will be compromised if FRE 606(b) admits jury testimony to demonstrate dishonesty during voir dire. Law Professors submitting an amicus brief in support of Shauers, state that Warger’s reading of FRE 606(b) would substantially disrupt the purpose of voir dire—discovering juror biases. They warn that Warger’s interpretation of FRE 606(b) would entice lawyers to ask ambiguous questions during voir dire to increase the probability that a juror’s statements made during deliberation would be inconsistent with his responses during voir dire. They foresee that the number of motions and appeals related to voir dire would increase, resulting in a drawn-out empanelment process.
In this case, the Supreme Court will decide whether to continue to afford near absolute protection for jury deliberation. Specifically, the Court will decide if providing evidence of juror dishonesty to support a motion for a new trial merits an exception to the protection afforded jurors under FRE 606(b). Shauers argues that FRE 606(b) protection for jury deliberations is essential, and Warger could have supported his motion for new trial with additional evidence besides Juror Titus’s affidavit. Warger counters that juror dishonesty in voir dire prevented him from learning critical information regarding the members of the jury because his only evidence of the dishonesty surfaced during jury deliberations (potentially where Juror Whipple’s bias first appeared). In previous decisions, the Supreme Court identified the voir dire process as a safeguard to ensure juror competence. Ultimately, the court must decide if finding evidence of potential dishonesty in voir dire outweighs the strong procedural protection afforded to jury deliberations.
Stephen A. Miller:, Preview of the Supreme Court’s October Term in 2014, The Legal Intelligencer, (September 4, 2014).