Saturday, March 7, 2009
The recent opinion of the New York Supreme Court, Appellate Division, 4th Judicial Department, in People v. Scerbo, 872 N.Y.S.2d 763 (N.Y.A.D. 4th Dept. 2009), reveals that New York courts allow for significantly more jury impeachment than do most courts across the country.
In Scerbo, Albert Scerbo, a former music teacher at the Onondaga Indian Nation School was arrested in December 2006 on allegations that he had sexual contact with two girls, ages 7 and 8. As the police investigation continued, additional girls ranging in age from 7 to 14-years-old made allegations that Scerbo touched them improperly through their clothing as they sat on his lap in the back of a darkened room while he showed movies or videos to the class. Thereafter, in August 2007, Scerbo was convicted of first-degree sexual abuse and endangering the welfare of a child. Judge William Walsh, however, later set aside these convictions based upon juror misconduct, and the 4th Department recently affirmed that decision (with a few modifications).
According to the 4th Department,
the court properly instructed the jurors that they should use their common sense, knowledge, and experience in evaluating the evidence but that, if a juror possessed special expertise related to a material issue in the case, the juror could not rely on that special expertise "to inject into your deliberations either a fact that is not in evidence or inferable from the evidence, or an opinion that could not be drawn from the evidence by a person without that special expertise." Despite that instruction, the evidence...established that two jurors, both of whom were educators, informed the other jurors that teachers are trained or informed never to touch students. That information is not within the common understanding of the average juror, and the issue whether it was appropriate for defendant to allow his female students to sit on his lap during class was a material issue in the case. Indeed, the record establishes that at least one juror was swayed by the opinions of the two jurors in voting to convict defendant. As the court concluded in granting defendant's motion, once a juror was "convinced that defendant knowingly violated some professional ethic by allowing students to sit on his lap, [the juror] was then able to make the next logical step of concluding that he did so only for the purpose of committing the crimes under consideration." Reversal was required under the circumstances of this case because the "jurors [were] exposed to prejudicial, extra-record facts."
This ruling was absolutely correct under New York precedent, but it would have been incorrect in most courtrooms across the country. Most states have a version of Federal Rule of Evidence 606(b), which states in relevant part that:
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.
Under this Rule, statements by jurors themselves are considered an internal or intra-jury influence rather than an improper outside influence and thus cannot serve as the proper predicate for jury impeachment. But as the 4th Department correctly noted, New York precedent (there are no New York Rules of Evidence) does not recognize this distinction between internal and external influenes. Instead, under New York precedent,
It is well settled that "a jury verdict may not be impeached by proof of the tenor of [the jury's] deliberations, but it may be upon a showing of improper influence...." Improper influence includes jury conduct that tends to place the jury in possession of evidence not introduced at trial....In determining whether a jury has been subjected to improper influence, the court must examine the facts "to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered...." "Overall, a reversible error can materialize from (1) jurors conducting personal specialized assessments not within the common ken of juror experience and knowledge (2) concerning a material issue in the case, and (3) communicating that expert opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence."
So, which rule do readers prefer?
(Hat tip to my colleague Tim O'Neill)