Tuesday, April 7, 2009
An Analog Rule in a Digital World?: Court of Appeals of Indiana Precludes Jury Impeachment Based Upon Text Message Found in Defendant's Cell Phone
(Cross-posted on PrawfsBlawg)
I noted in my first post here that I planned to do all of my posts this month on the grading and evaluation of students, but I came across an opinion today that I wanted to share with the wider audience of PrawfsBlawg because it deals with an issue that is becoming impossible to ignore: How do we deal with the increasing intersection between adavnced technology and the right to trial by jury? A recent New York Times story identified the Google mistrial, i.e., the increasing use of Blackberrys and iPhones by jurors gathering information about cases and wreaking "havoc on trials around the country, upending deliberations and infuriating judges." Last week, CrimProf Blog did a post about the judge in the trial of Brooke Astor's son prohibiting Blackberry use by jurors. The week before the New York Times article, I had posted an entry on my blog about an appeal in which the Eleventh Circuit refused to allow jurors to impeach their verdict after trial through allegations that "jurors allegedly exchang[ed] e-mail both during trial and during deliberations." At the time I mused that "[t]his was undoubtedly the correct decision under [Federal Rule of Evidence 606(b)], but I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point."
Well, today, I read the recent opinion of the Court of Appeals of Indiana in Hape v. State, 2009 WL 866857 (Ind.App. 2009), and while it deals with a slightly different issue, it prompts me to wonder whether judges are as ill-equipped as Rule 606(b) to address what courts should do when technology has encroached upon the jury deliberation process. The issue: What should be done when a juror comes forward after trial and claims that jurors retrieved incriminating text messages from a cell phone that was admitted into evidence, but without either party or the court knowing that the messages existed. According to the Court of Appeals of Indiana, the answer was "nothing." And according to me, that answer was wrong.
In Hape, Darby L. Hape appealed from his convictions for possession of methamphetamine with the intent to deliver and resisting law enforcement (Hape was also improperly found to be a habitual offender). One of the grounds for Hape's appeal was that he learned from a juror after trial that the jurors were able to turn on one of the cell phones taken from Hape during a search of him incident to a lawful arrest, which was admitted as an exhibit, and recover several text messages, including one from "Brett," which stated:
Hey man do you think you can do something 4 one of what I gave you the other night. I could care less about ours right now but my other dude keeps asking & I don't even have the funds to pay him back I guess I will freakin tell him to get it off the water tower.
Hape claimed that the trial court erred by denying his motion to poll the jury to determine the effect of this unadmitted text message on their verdict, but the Court of Appeals of Indiana found that this denial was improper pursuant to Indiana Rule of Evidence 606(b), which indicates that
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occuring 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, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror's affidavit concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.
Indiana Rule of Evidence 606(b) is mostly similar to Federal Rule of Evidence 606(b), but the key difference that divides them explains the erroneous decision of the Court of Appeals of Indiana. You see, in Tanner v. United States, 483 U.S. 107 (1987), defendants sought to have jurors impeach their verdict through allegations that jurors were drunk, high, and sleepy during trial and deliberations. The Supreme Court found that the lower courts properly precluded such impeachment because there is an external/internal dichotomy in Federal Rule of Evidence 606(b), pursuant to which jurors cannot impeach their verdicts based upon anything internal or intrinsic to the jury deliberation process (such as misunderstood jury instructions or inferring guilt based upon the defendant's choice not to testify) but can impeach their verdicts based upon anything external or extrinsic to the jury deliberation process, whether it be external evidence (extraneous prejudicial information such as a biased newspaper article about the case finding its way to the jury room) or external influence (improper outside influence such as a threat from a family member of a party to a juror).
In explaining the common law precedent leading to the adoption of Federal Rule of Evidence 606(b), the Court noted that
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.
The Court then applied this dichotomy to the allegations at hand and concluded that there could be no jury impeachment in the case before it because, inter alia, "[h]owever 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 foor, or a lack of sleep." In other words, the jurors' alleged conditions were conditions caused by them, not something that was improperly presented to them.
What's clear from Tanner is that, unlike Indiana Rule of Evidence 606(b), Federal Rule of Evidence 606(b), does not contain an exception for post-verdict juror testimony concerning drug or alcohol use by jurors, and I'm betting that Indiana's rule, which was enacted in 1994, was a response to the Court's 1987 opinion in Tanner. Nonetheless, the Court of Appeals of Indiana in Hape adhered to Tanner's internal/external dichotomy, albeit in what I regard as a nonsensical manner. According to the court in Hape, Hape's jury impeachment argument failed because
the text messages are intrinsic to the cellular telephone. The jury discovered the text messages at issue by turning on a cellular telephone that was admitted into evidence without objection....First, the text messages themselves are not extraneous to the cellular telephone. We agree with the State that text messages are intrinsic to the cellular telephones in which they are stored. "Intrinsic," as defined by Black's Law Dictionary, means "[b]elonging to a thing by its very nature; not dependent on external circumstances; inherent; essential." Black's Law Dictionary 842 (8th ed.2004). We conclude that the text messages at issue here are part and parcel of the cellular telephone in which they were stored, just as pages in a book belong to the book by their very nature, and thus they are intrinsic to the telephone.
This ruling mischaracterizes the Tanner internal/external dichotomy. Under that dichotomy, the question is whether the information/influence at issue was intrinsic or extrinsic to the jury deliberation process, not whether it was intrinsic or extrinsic to something that was properly in the jury deliberation room. As the Court of Appeals of Indiana correctly noted, the text message was never authenticated and thus never deemed admissible, and as the United States District Court for the Southern District of New York noted in collecting cases in Benjamin v. Fischer, 248 F.Supp.2d 251, 261 (S.D.N.Y. 2002), "extrinsic information does not transform itself into admissible evidence simply because it is hidden within a properly admitted exhibit introduced into evidence without restrictions." As I noted above, the only quesion for the Court of Appeals of Indiana in Hape should have been whether the text message was something that was improperly presented to the jurors, and based upon Benjamin v. Fischer, that the answer is a clear "yes."
But even using the logic of the Court of Appeals of Indiana, do you agree that an incoming text message is "intrinsic" to a cell phone? Using the same definition as the court, is an incoming text message something that "[b]elong[s] to [it] by its very nature; not dependent on external circumstances; inherent; essential?" Again, the answer seems to me to be a clear "no," and an extension of the court's logic would lead to scary results. For instance, let's say that a friend sent a text message to a juror indicating that a news story just revealed that the defendant failed a polygraph test. According to the Court of Appeals of Indiana, this text message would be intrinsic to the cell phone and could not form the proper predicate for jury impeachment. Such a conclusion would be both nonsensical and troubling.
All of this leads me to believe that the Supreme Court of Indiana might reverse Hape's conviction, but what about cases with intra-jury e-mailing, which is indeed intrinsic under Federal Rule of Evidence 606(b)? Well, one of the arguments in my new article, Dismissed with Prejudice, is that courts should find that the Rule violates the right to present a defense, at least in criminal cases. But what do readers think? Is it, to paraphrase John McClane, an analog rule in a digital world? Or does it still make sense?