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

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Monday, August 25, 2008

The Lone Ranger and Tonto Fistfight in Heaven, Take 2: 10th Circuit Hears Oral Arguments In Rule 606(b) Appeal

Last Wednesday, I used my post from last December about a district court's landmark Rule 606(b) ruling in my Evidence class.  Readers may recall the case, in which a Utah District Court vacated a Native American man's conviction for assaulting a federal officer after receiving evidence that, inter alia,  the jury foreman told the other jurors that he had lived on or near a reservation and that, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent."  At the time, I noted that the case "appear[ed] to be the first case in which a court in the Tenth Circuit has considered post-verdict evidence of juror racial bias in reversing a verdict," and noted that the U.S. Attorney's office was considering whether to appeal the court's decision.

Well, after class, I decided to check up on the case and found out that the U.S. Attorney's office did indeed decide to appeal, and oral arguments were held before a three judge panel of the Tenth Circuit last week.  It will certainly be interesting to see what result the court reaches, and whichever way it decides, it will widen the already sharp circuit split over whether, notwithstanding Rule 606(b), jurors should be able to impeach their verdicts after trial through testimony about, inter alia, racial or religious slurs.

I'm in the last week of finishing my summer article, and as I noted before, I will be taking my stab at the split this fall, with my argument being that courts should apply the doctrine from Chambers v. Mississippi, 410 U.S. 284 (1973), to permit post-trial juror impeachment through testimony about racial or religious slurs, notwithstanding the rules of evidence.  And maybe, based upon the case currently before the Tenth Circuit, the Supreme Court will finally be granting cert on the issue and reaching its own conclusions. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/08/native-american.html

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