EvidenceProf Blog

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

Saturday, October 10, 2009

Modify Before Codify: Court Of Appeals Of Michigan Reveals Michigan's Failure To Codify Jury Impeachment Rule

Back in July, I posted an entry about the Supreme Court of Michigan creating Michigan Rule of Evidence 611(b), which allows judges to tell witnesses and parties what they can and cannot wear in the courtroom. As far as I know, no other state has codified such a rule in its rules of evidence, and, as I noted at the time, I think that the rule implicates religious liberty. But my question in this post is not whether Michigan Rule of Evidence 611(b) is valid. Instead, my question is how Michigan can get around to creating a rule governing the attire of witnesses and parties and can't get around to creating a rule of evidence governing jury impeachment.

In People v. Malone, 2009 WL 2952683 (Mich.App. 2009), a jury convicted Harvey Malone on charges of carrying a concealed weapon and possession of a firearm during the commission of a felony (felony-firearm) but acquitted him of the more serious charge of assault with intent to commit murder. Now, the opinion of the Court of Appeals of Michigan doesn't tell us much about the facts of Malone's case, but it does tell us that

the trial judge visited the jurors in the jury room after the jury was polled and dismissed. At that time, when asked about the seemingly inconsistent verdicts of "not guilty" for assault with intent to murder and "guilty" for felony-firearm, one juror responded that they felt forced to convict on the felony-firearm charge merely because defendant had a gun. Even though only one juror spoke up, the other jurors apparently nodded in agreement. The trial court granted defendant's motion for a new trial based on a miscarriage of justice because it concluded that a correct interpretation of the jury instructions would have resulted in a "not guilty" verdict for defendant on the felony-firearm count.  

The Court of Appeals of Michigan later reversed, stating,

Seeing that the juror's comments related to the jury's deliberative process and the interpretation of the judge's instructions, it is clear that these comments did not relate to any external influences. In fact, this Court has already held that failing to follow the judge's instructions inheres in the verdict and cannot be impeached by juror testimony....Furthermore, "[a]ny conduct, even if misguided, that is inherent in the deliberative process is not subject to challenge or review."

Malone's main argument on appeal was that Michigan does not have a state counterpart to Federal Rule of Evidence 606(b), which deems most attempts at post-verdict jury impeachment inadmissible subject to certain exceptions. The court noted that Malone was right but found that his argument did not matter because "[a]lthough Michigan does not have a codified prohibition on jurors testifying about internal or intrinsic matters, this is not dispositive because Michigan's common-law prohibition on such testimony is just as binding."  

My response: Why doesn't Michigan have a state counterpart? In looking through the Michigan Rules of Evidence, I see that there is a counterpart to almost every Federal Rule of Evidence. So, why is there no Michigan Rule of Evidence 606(b)?

Now, readers may be wondering why this matters. Well, take the case of People v. Brooks, 2008 WL 2855040 (Mich.App. 2008). I reference this case in my forthcoming article Dismissed with Prejudice because it involved the Court of Appeals of Michigan refusing to allow a convicted defendant to present evidence that the verdict in his case was tainted with racial bias. Now, Michigan courts are not alone in reaching this type of conclusion although several courts do allow for the admission of evidence of juror racial bias to impeach a verdict under the exceptions to Federal Rule of Evidence 606(b) and state counterparts.

The key point, though, is that litigants know that the court will apply the codified rule and its exceptions, even if the outcome might be unsatisfactory. In contrast, here is what the Court of Appeals of Michigan stated in Brooks: "In addition, there is extensive federal case law concerning the distinction between internal and external jury influences to which Michigan courts have sometimes looked in considering jury misconduct cases."[fn]

[fn] Unlike Michigan law, federal law codifies this distinction in the court rule. FRE 606(b).

Okay, so wait a second. The best that the Court of Appeals of Michigan can tell litigants is that Michigan courts might consider the federal exceptions to the anti-jury impeachment rule in a given case. This seems woefully inadequate to me and something that Michigan should immediately change by codifying its common law jury impeachment rule.



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Welcome to law as it is practiced in Michigan. The felony-firearm statute carries a mandatory, 2-year, determinate sentence, consecutive to, and served prior to, the sentence for any other offense. Michigan is enamored of this offense, and there are numerous cases where defendants have been convicted of felony-firearm, and acquitted of the underlying felony, gone to prison, and had their convictions affirmed. It's usually on the theory that the jury "thought" (becuase we don't ask juries to explain the inconsistent verdicts) that the defendant had committed some other, unspecified, uncharged, felony that it was never told about. With thinking like that, why be surprised that we don't codify a jury impeachment rule? After all, jury impeachment is far less frequently encountered in the practice of law than a felony-firearm prosecution.

Posted by: Greg Jones | Oct 14, 2009 8:56:08 AM

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