Monday, August 10, 2009
Without Prejudice: Colorado Court Of Appeals Find Jurors Were Not Exposed To Extraneous Prejudicial Information In Car Crash Appeal
But what exactly constitutes extraneous prejudicial information? The recent opinion of the Colorado Court of Appeals in Kendrick v. Pippin, provides maybe the best (or at least the most comprehensive) answer to that question that I have seen in a judicial opinion.
In Pippin, Holly Pippin drove her pickup truck into a car driven by Cheryl Kendrick, but the result of Kendrick's subsequent lawsuit against Pippin was a jury verdict deeming Pippin not negligent in causing the accident. Subsequently, Kendrick moved for a new trial based, inter alia, on the affidavit of a consultant she hired who interviewed jurors after the verdict and who averred that
• during deliberations, the jury foreperson, an engineer, performed calculations regarding Ms. Pippin's speed, distance, and reaction time which she shared with the other jurors;
• the foreperson had told the other jurors she was an engineer;
• the foreperson had provided her with the calculations, but the consultant had not written them down and did not remember them;
• the foreperson had concluded that Ms. Pippin did not have enough time to avoid the collision; and
• another juror said that the jurors had found the foreperson's calculations helpful.
The Colorado Court of Appeals first noted that, based upon Colordo precedent, even if it were to "conclude that the consultant's affidavit alleged facts which, if true, would entitle Ms. Kendrick to a new trial, the remedy in that circumstance would be a remand for the purpose of conducting an evidentiary hearing on those allegations." It then rejected Pippin's argument that it could not consider the consultant's affidavit because it was hearsay, again citing Colorado precedent for the proposition "that affidavits by nonjurors attesting to jurors' statements regarding exposure to extraneous prejudicial information have been found sufficient to require a hearing."
The problem for Kendrick, however, was that the court did not find that the jurors were exposed to extraneous prejudicial information. The court began by cataloging the types of information have been deemed extraneous and prejudicial by Colorado appellate courts:
(1) information obtained from outside the jury room which could have encouraged a jury to decide the case on some improper basis, see Harlan, 109 P.3d at 624-33 (passages from a Bible brought into the jury room by one or more jurors); Ravin, 788 P.2d at 819-21 (bailiff's statement that jurors could be required to deliberate for as long as two weeks); (2) information from an outside source defining a charged offense, see Wiser v. People, 732 P.2d 1139, 1141-43 (Colo. 1987) (definition of “burglary” from a dictionary brought into the jury room by a juror); (3) substantive information about evidence from outside sources, see People v. Wells, 97 P.3d 932, 934-35 (Colo. 2004) (information from the Internet on uses of an anti-depressant drug); T.S. v. G.G., 679 P.2d 118, 119-20 (Colo.App. 1984) (information from a textbook regarding DNA testing); (4) substantive information about facts contradicting facts in evidence, see Destination Travel, 799 P.2d at 455-57 (estimates of appropriate salaries of the plaintiff's employees-facts necessary to the computation of damages); and (5) information about the parties or the circumstances giving rise to the case gleaned from outside sources, see Butters v. Wann, 147 Colo. 352, 355-58, 363 P.2d 494, 496-97 (1961) (juror independently investigated drinking habits of and license revocation proceedings involving the deceased); Montrose Valley Funeral Home, Inc. v. Crippin, 835 P.2d 596, 597-98 (Colo.App. 1992) (deposition testimony that had not been admitted into evidence).
The court then found that the case before it did "not involve those types of information. Rather, the allegation here is that a juror used her pre-existing, general knowledge of mathematics (and perhaps physics) to analyze the admitted evidence of relevant locations and distances and the speed of Ms. Pippin's vehicle." Therefore, the court found that the question before it was "whether a juror's pre-existing personal expertise or knowledge of a general nature-that is, not involving historical or otherwise substantive facts in the case-is extraneous information which the juror may not use or communicate to other jurors in the course of deliberations." The court found that was not, using the following impressive string cite as support:
See Hard v. Burlington Northern R.R. Co., 870 F.2d 1454, 1460-62 (9th Cir. 1989) (juror's medical knowledge, which enabled him to interpret x-rays admitted into evidence, was not extraneous information); State v. Aguilar, 818 P.2d 165, 166 (Ariz.Ct. App. 1991) (medical doctor juror's knowledge of alcohol and cocaine intoxication and blackouts, which he shared with the other jurors, was not extraneous information); Wagner v. Doulton, 169 Cal.Rptr. 550, 551-53 (Cal.Ct.App. 1980) (diagram of accident scene by juror who was an engineer was not extraneous information where diagram was based solely on the evidence admitted at trial); State v. DeMers, 762 P.2d 860, 863 (Mont. 1988) (juror's knowledge about the study of bones, which was allegedly used by jurors to speculate about possible angles of bullet deflection and to assess an expert's testimony, was not extraneous information); Meyer v. State, 80 P.3d 447, 457-58 (Nev. 2003) (nurse juror's opinion as to likely cause of bumps on victim's head was not extraneous information); State v. Mann, 39 P.3d 124, 127, 132-35 (N.M. 2002) (engineer juror's calculations regarding statistical likelihood that child impaled himself on a screwdriver (the defendant's theory of defense) were not extraneous information); State v. Heitkemper, 538 N.W.2d 561, 563-64 (Wis.Ct.App. 1995) (pharmacist juror's statements to other jurors about effect of drugs taken by witness were not extraneous information); but see People v. Maragh, 729 N.E.2d 701, 703-06 (N.Y. 2000) (nurse jurors' use of professional expertise in communicating opinion about victim's cause of death to other jurors constituted extraneous prejudicial information).
The court thus denied Pippin's motion, concluding,
Jurors are not automatons. It is neither reasonable nor desirable to expect that they will assess evidence without regard to their own pre-existing knowledge of general application....Therefore, while a juror may not communicate to other jurors personal knowledge of the parties or of historical or otherwise substantive facts pertaining specifically to the case that are not in evidence, a juror may use his or her particular preexisting knowledge of general application in evaluating the evidence. To the extent a party is concerned that specialized knowledge could be employed by jurors to evaluate the evidence, the time for determining whether a juror possesses such knowledge is during voir dire, not after the verdict."