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Editor: Colin Miller
Univ. of South Carolina School of Law

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Sunday, July 13, 2008

Double Exposure: 8th Circuit Makes Proper Juror Impeachment Ruling, Improper Photo Collage Ruling In Bank Robbery Appeal

The Eighth Circuit's recent opinion in United States v. McGhee, 2008 WL 2631357 (8th Cir. 2008), contains two interesting evidentiary rulings.  In McGhee, a jury convicted Robert Evans McGhee of armed bank robbery and brandishing a firearm in violation of 18 U.S.C. Section 924(c).  On appeal, McGhee raised several grounds for reversal, including 2 evidentiary issues.

His first claim was that the district court erred in not ordering a hearing when two jurors alleged intimidation by other jurors.  As I have noted on several previous occasions, however, pursuant to Federal Rule of Evidence 606(b), intimidation by other jurors is not a proper predicate for juror impeachment.  Pursuant to Rule 606(b),

     "Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying."

In other words if someone besides another juror, such as a relative of a party, threatened a juror, the threatened juror could testify at a post-verdict hearing because such testimony would address "whether any outside influence was improperly brought to bear upon any juror."  When, however, the threat comes from another juror, there is merely an improper internal influence brought to bear on a juror, precluding juror impeachment. See, e.g., United States v. Lakhani, 480 F.3d 171, 184 (3rd Cir. 2007) ("[E]vidence of discussions among jurors, intimidation or harassment of one juror by another, and other intra-jury influences on the verdict is within the rule, rather than the exception, and is not competent to impeach a verdict.").

In other words, the legal system has decided that harassment of jurors by other jurors during deliberations is acceptable collateral damage to prevent post-trial harassment of jurors.  See Federal Rule of Evidence 606(b) Advisory Committee's Note. ("The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment.").  It's a Solomonic compromise with which I'm still not sure that I agree, but it was clearly correctly applied by the 8th Circuit.

I'm not as sure about the other ruling.  McGhee's second evidentiary objection was that the district court erred in allowing the prosecution during closing argument to a photographic collage.  Specifically, the collage was a photograph taken of the bank robber at the time of the bank robbery, with an image of McGhee in a similar pose superimposed on to the photo next to the bank robber.  The 8th Circuit found that the district court did not err based upon its previous opinion in United States v. Wainwright, 351 F.3d 816, 820 (8th Cir. 2003). 

In Wainwright, the defendant appealed from a jury verdict finding him guilty of interstate transportation of stolen property.  On appeal, the 8th Circuit, inter alia, rejected his argument on appeal that the district court abused its discretion in admitting a summary of his logging activities.  Its basis for the denial was that "[s]ummary exhibits that fairly summarize the evidence are authorized by Federal Rule of Evidence 1006," which states that:

     "The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court."

The 8th Circuit then noted that the prosecution complied with Rule 1006 because one of its witnesses "explained in detail how he developed the summary from the voluminous records of the various victims, mills, wood-receiving facilities, and wood dealers in Arkansas and Louisiana."

In McGhee, the court found that the same analysis applied and thus that the district court did not err, but I don't understand its reasoning.  There was no claim here that the prosecution had presented voluminous photographs and was presenting a "summary" of those photographs.  Instead, it was presenting a "doctored" photograph, with one image superimposed on another.  And the point of the collage was not merely to collect a lot of images on to one collage.  Instead, the point of the collage was clear:  to try to get the jurors to believe that the defendant was the bank robber.  Federal Rule of Evidence 1006 would thus be inapplicable, and the 8th Circuit needed to find another basis for admitting the collage.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/07/606b-juror-inti.html

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