Thursday, November 19, 2009
Compromising Position: Court Of Appeals Of Texas Notes That Rule 606(b) Precludes Jury Impeachment Regarding Compromise Verdict
Texas Rule of Evidence 606(b) provides 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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
As the recent opinion of the Court of Appeals of Texas, Texarkana, in Orange v. State, 2009 WL 3851068 (Tex.App.-Texarkana 2009), makes clear, like its federal counterpart, Texas Rule of Evidence 606(b) does not permit jury impeachment on the issue of whether the jury reached a compromise verdict.
In Orange, Charles Eugene Orange was convicted by a jury of indecency with a child by contact. Orange, however, was acquitted by the jury on the charge of aggravated sexual assault. After trial, Orange learned how the jurors reached these results. Apparently, "the verdict was reached by compromise; that is, because the jury could not agree on a unanimous verdict, they agreed to find Orange guilty of indecency with a child (the lesser offense) and then recommend community supervise." Orange presented the affidavits of two jurors to this effect on appeal, but the Court of Appeals found that it was precluded from considering them under Texas Rule of Evidence 606(b). According to the court,
This rule plainly forbade the trial court from considering the juror affidavits to the extent they discussed matters occurring in deliberations. See State v. Krueger, 179 S.W.3d 663, 665-66 (Tex.App.-Beaumont 2005, no pet.) (trial court granted motion for new trial based on informal discussions between court, attorneys, and jurors following trial; court of appeals reversed because jurors' statements not competent evidence under Rule 606(b)); Davis v. State, 119 S.W.3d 359, 365-66 (Tex.App.-Waco 2003, pet. ref'd) (testimony of jury's consideration of parole application not permitted under Rule 606(b) at hearing on motion for new trial); Hines v. State, 3 S.W.3d 618, 621 (Tex.App.-Texarkana 1999, pet. ref'd) (stating under Rule 606(b), jurors not competent to testify “that they decided the verdict by lot, that they decided the case based on another juror's incorrect statement of the law, or that they discussed the defendant's failure to testify and used that failure as a basis for convicting him”). The affidavits from the jurors could not be considered to attack any matter within the jury's deliberations.
Indeed, the Advisory Committee's Note to Federal Rule of Evidence 606(b) (the model for Texas Rule of Evidence 606(b)) makes this point clearer. According to that Note, Federal Rule of Evidence 606(b) is based upon federal precedent in which "testimony or affidavits of jurors ha[d] been held incompetent to show a compromise verdict...."