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Univ. of South Carolina School of Law

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Sunday, November 8, 2009

Divine Justice?: Court Refuses To Conduct Voir Dire Of Jurors Besides Foreperson Despite Bible Being Found In Jury Deliberation Room

A defendant is convicted of being a felon in possession of a firearm and ammunition. After the verdict is entered, the judge goes to the jury room with his law clerks to thank the jury. Afterwards, the law clerks inform the judge that they saw a pocket-sized New Testament on a juror notebook on the table. The judge informs the parties of this fact, prompting the defendant to move for a new trial and individual voir dire of each juror to assess any improper influence by a Bible in the jury room. What should the judge do? According to the recent opinion of the United States District Court for the District of Massachusetts in United States v. Rodriguez, 2009 WL 3650857 (D. Mass. 2009), the answer is simply to question the jury foreperson. I fundamentally disagree.

The facts in Rodriguez were as listed above, except that the jury deliberations were not as smooth as the above facts would indicate. On the third day of deliberations, the jury submitted a note to the judge asking how it could “determine if we are a 'hung jury'?" In a written response, the judge instructed the jurors to continue deliberating and told them that the court would issue further instruction if the jury was unable to make progress. Later that same day, the jury submitted a second note to the judge, stating, “We cannot reach a unanimous decision and we don't know that we will. How do we proceed?" The following day, the judge responded by giving the jury an Allen charge, and the jury returned the guilty verdict later that day.

With regard to the Bible issue, the judge questioned the jury foreperson as follows:

THE COURT: Did the issue of the Bible come up at all? 

JUROR: No.

THE COURT: Did you discuss it at all?

JUROR: No.

THE COURT: Did [the juror who had the Bible] mention it at all?

JUROR: No. I mean, her and I had, like, conversations on the side .... but it wasn't pertaining to the case or anything, it was just side conversation before the morning started or whatever. But never came up during deliberations or anything.

THE COURT: Was she reading it during deliberations?

JUROR: No....

The foreperson testified further that she sat next to the juror in question during deliberations and whenever they were in the jury room....The foreperson and the juror had casual conversation about the Bible before the jury formally convened one day:

JUROR: It was-during the trial, it was more like whoever was early in the jury room, we would just have general conversation, and somehow it came up between her and I that my aunt was Christian, you know, this or that....

MR. CABELL: I just want to clarify to make sure I understood. You said the conversations you had in the morning were that your aunt was Christian?

JUROR: Yes, my husband's aunt. My husband's aunt was Christian, is Christian. And she asked me, must have been something I said in passing or whatever, she asked me the next day something about are you Christian or do you read Christian passages? And I said no, my husband's aunt is. I know that she-the last day of deliberations she was going to be late for Bible study, and that was it.

MR. SINNIS: Was that an issue for her?

JUROR: No. She had already called them that morning and said she was not going to make it. She never seemed like it was going to be a problem at all.

The court found that it was allowed to receive this testimony pursuant to Federal Rule of Evidence 606(b), which provides 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 on the jury form.

According to the court, "[m]ost circuits have ruled that when a Bible itself enters a jury room, the jury has been exposed to an external influence;" however, no relief can be afforded unless the moving party can prove prejudice. The problem for the defendant in Rodriguez was that he couldn't, at least based upon the testimony of the foreperson.

That left the question of whether there should be individual voir dire of other jurors. The court found that there should not, despite the First Circuit's opinion in United States v. Lara-Ramirez, 519 F.3d 76 (1st Cir. 2008), in which it had found that a "trial judge's decision to interview only the jury foreperson [was] inadequate" in a case with somewhat similar facts. The court in Rodriguez, however, distinguished Lara-Ramirez, finding that

in that case the foreperson had stated that the Bible was actually used during deliberations to make a point. Here, though, the foreperson provided no evidence that the Bible was discussed at all during deliberations.

According to the court,

Where, as here, there is no evidence of any extraneous influence on deliberations, further inquiry would require hauling jurors back into court for the purposes of investigating the possibility of misconduct that is, at best, wholly speculative. In my discretion, I decline to do so. 

Really? From the notes submitted to the judge, it seems that there was at least one juror who was prepared to vote "not guilty" until almost the end of deliberations. Was it not worth it to the judge to interview any holdouts to see whether it was the Bible or the evidence that changed their minds? Was it not worth it to the judge to interview the juror with the Bible to determine whether he or she could shed some more light on the situation? The result of the trial was a man being convicted and sent to prison. If you were the judge, could you justify not taking a couple of hours to call some jurors back to see what exactly happened during deliberations?

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/11/bible-606b-massus-v-rodriguez----fsupp2d------2009-wl-3650857dmass2009.html

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