EvidenceProf Blog

A Body Treatise: Court Of Appeals Of Minnesota Finds Learned Treatise Exception Didn't Apply To Amnesty International Report

Like its federal counterpart, Minnesota Rule of Evidence 803(18) provides an exception to the rule against hearsay for "statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice" to the extent that those statements are "called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination." The Rule goes on to provide, however, that "[i]f admitted, the statements may be read into evidence but may not be received as exhibits." The problem for the appellant in In re Welfare of G.S.G., 2009 WL 3736134 (Minn.App. 2009), was that he could not meet the requirements of this hearsay exception.

In G.S.G., G.S.G. appealed from an order certifying him for adult prosecution on first-degree murder charges. 

The charges against...G.S.G. arose out of an incident in which [G.S.G.] stabbed and beat his neighbor to death. In a statement to police, [G.S.G.] reported that early one evening, the victim had touched [his] penis and tried to pull down [his] pants. Several hours later, [G.S.G.], who was 15 years old at the time, went to the victim's house and waited until the victim was alone. [G.S.G.] entered the victim's home, stabbed him repeatedly, and then choked him. [G.S.G.] was charged with first-degree premeditated murder, and the state moved to certify [G.S.G.] for adult prosecution....

[G.S.G.]'s mother is Native American, and his father is Latino. His mother is a member of the Standing Rock Sioux Tribe, and [G.S.G.] has lived in Minnesota and on the Standing Rock Indian Reservation in South Dakota. [G.S.G.]'s father had difficulty finding work on the reservation, so he frequently returned to Minneapolis to work....[G.S.G.] sometimes accompanied his father to Minneapolis.   

When [G.S.G] lived on the reservation, his mother and half-sisters used alcohol and drugs to excess and often physically abused [G.S.G.]. [G.S.G.] began regularly using alcohol and marijuana when he was between eight and ten years old. [G.S.G.], who was subjected to racial taunting by peers, was involved in numerous fights. [G.S.G.] estimated that he was in about 30 fights on the reservation and admitted using weapons, including rocks, bricks, and glass bottles....While visiting his grandmother sometime between the fall of 2006 and the spring of 2007, [G.S.G.] was sexually assaulted by his uncle, who penetrated [G.S.G.] anally.

At trial, G.S.G. "intended to call a witness to testify about [G.S.G.]'s family history, including the prevalence of rape, and how intergenerational trauma affected [G.S.G.] and tied into []his case." The problem for G.S.G. was that this witness "was ill at the time of trial." G.S.G. thus "sought to introduce a 103-page report by Amnesty International, titled Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, which included excerpts about the Standing Rock Reservation."  

According to the district court judge, G.S.G's problem in this regard was that the report did not qualify for admission under Minnesota Rule of Evidence 803(18). The judge found that

[E]ven if [[G.S.G]'s intended witness] were testifying, going back to the exact same rule that [[G.S.G.]'s counsel] started reading from, the Rule of Evidence 803, Subd. 18, the article would never have been admissible even if [the witness] testified because that rule ends by stating, "statements can be read into evidence that may not be received as exhibits," and those statements were from inside of a larger publication that the expert relied on.

And so I would not have been able to accept that article into evidence, as a whole anyway, under that Rule of Evidence. And I couldn't find any other Rule of Evidence that applied to the admissibility of publications, only to foundation. And, I agree, I can take judicial notice that that's a learned treatise, but it doesn't make it admissible, itself.

Upon G.S.G.'s subsequent appeal, the Court of Appeals of Minnesota agreed with the district court judge, finding that G.S.G.

cites no authority showing that the district court erred in its analysis of rule 803(18) and does not cite any other rule of evidence that applies to the Amnesty International publication. Therefore, we conclude that [G.S.G.] has not met his burden of demonstrating that the district court clearly abused its discretion in refusing to admit the publication, and we affirm the district court's evidentiary rulings.

-CM

Facebook Status -- Exonerated: Suspect's Facebook Update Corroborates Alibi In Brooklyn Robbery

I have written several posts on this blog (here, here, here, here, and here) about cases dealing with the admissibility of evidence from MySpace pages. A case out of New York, however, gives me my first opportunity to address the admissibility of evidence from a Facebook page. And indeed, it appears to be the first case in which a Facebook update has been used as alibi evidence.

On October 18th, 19 year-old Rodney Bradford learned that police were looking for him in connection with a robbery committed in Brooklyn at 11:50 a.m. the day before. Bradford claimed that he was in Harlem, visiting his father at the time, a claim supported by Mr. Bradford’s father, Rodney Bradford Sr., and his stepmother, Ernestine Bradford. As it turns out, Bradford had even stronger evidence corroborating his alibi.

According to Bradford, he was updating his Facebook page from a computer in his father's apartment in Harlem at the time of the robbery. Bradford's claim led the district attorney to subpoena Facebook for documentation that Bradford had updated his Facebook page from his father's apartment at the relevant time. The subpoena was successful as it uncovered that Bradford posted the message, "ON THE PHONE WITH THIS FAT CHICK......WHERER MY IHOP," at 11:49 a.m. on October 17th from his father's computer. 

According to defense attorney Robert Reuland, "It all corroborated our alibis....The Facebook thing was really the icing on the cake. I think, ultimately, it's what prompted the DA to dismiss." For their part, Facebook officials said they were "pleased" they were "able to serve as a constructive part of the judicial process." Meanwhile, according to attorney John Browning, "This is the first case that I’m aware of in which a Facebook update has been used as alibi evidence....We are going to see more of that because of how prevalent social networking has become."  

That's not to say, though, that the use of this type of evidence is new. As an article on the case noted,

With more people living their lives online and out loud, social media sites like Facebook, MySpace and Twitter, and online Web communications including photos and videos, are providing evidence in legal battles ranging from murder trials to employment lawsuits.

Up to now, social networking transactions have mostly been used as prosecutorial evidence, Mr. Browning said. He cited a burglar in September in Martinsburg, Pa., where the alleged burglar checked his Facebook page — and left it open. The police followed the digital trail to Jonathan G. Parker, 19, of Fort Loudoun, Pa., who was arrested.

That's also not to say that this type of evidence is uncontroversial. Joseph Pollini, who teaches in the Department of Law, Police Science and Criminal Justice Administration at John Jay College of Criminal Justice, said prosecutors should not have been so quick to drop the charges.

"With a username and password, anyone can input data in a Facebook page," he said. "Some of the brightest people on the Internet are teenagers," he said. "They know the Internet better than a lot of people. Why? Because they use it all the time. "So they could develop an alibi," he said. "They watch television, the movies, there is a multitude of reasons why someone of that age would have the knowledge to do a crime like that."

That said, Reuland challenged this argument, contending,

“This implies a level of criminal genius that you would not expect from a young boy like this; he is not Dr. Evil,"...adding that the Facebook entry was just “the icing on the cake,” since his client had the other alibis.

It will certainly be interesting to see how these types of social networking evidentiary issues play out of the next couple of years.

(Hat tip to my colleague Shahram Dana for the link)

-CM

Settling For This: Eastern District Of Pennsylvania Finds Settlement Evidence Inadmissible In Criminal Case Under Rule 403, Not Rule 408

If you want a primer on recently amended Federal Rule of Evidence 408, you should read the recent opinion of the United States District Court for the Eastern District of Pennsylvania in United States v. Davis, 2009 WL 3646459 (E.D. Pa. 2009). In Davis, Lee Davis, Jr. was charged with five counts of wire fraud and one count of mail fraud, relating to a scheme to defraud. One of the entities which Davis allegedly defrauded was Regency Oaks. Before trial, Davis brought a 

motion in limine for exclusion of a settlement agreement between [himself] and...Regency Oaks. The document, entitled "Payment Agreement," addresse[d] workers' compensation insurance claims made against Regency Oaks in the absence of insurance coverage, which had been promised by [Davis] but was not actually secured. As part of the settlement, [Davis] agreed to compensate Regency Oaks for attorneys' fees, medical bills, and other statutory penalties in connection with claims for injuries allegedly suffered by employees of Regency Oaks and its clients. In the prefatory clauses laid out at the beginning of the agreement, [Davis] ma[de] several admissions regarding his liability in the matter.

The Eastern District of Pennsylvania thus had to decide whether to exclude this settlement evidence under Federal Rule of Evidence 408.

The court noted that before 2006, there was a circuit split over whether Federal Rule of Evidence 408, which deems evidence connected to settlement negotiations inadmissible for certain purposes, applied in criminal cases. That split, though, was resolved with the 2006 amendment to Rule 408, which added the following italicized language to the Rule:

(a) Prohibited uses.-Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish-or accepting or offering or promising to accept-a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.-This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.  

According to the Eastern District of Pennsylvania, two things convinced it that this amendment made it clear that Rule 408 applies in criminal cases. First, the Advisory Committee Note to the amended Rule indicated that "statements made during compromise negotiations of other disputed claims are not admissible in subsequent criminal litigation, when offered to prove liability for, invalidity of, or amount of those claims." Second, even several courts which had previously found Rule 408 inapplicable in criminal cases before the 2006 amendment have now changed their tunes, with some noting that the creation of the partial exemption in subsection (2) in criminal cases "would be nonsensical unless the rule pertains to both civil and criminal cases."

And, according to the court, the problem for the prosecution was that the subject settlement evidence in Davis was evidence of settlement negotiations between private parties, meaning that the partial exception in subsection (2) was inapplicable. The prosecution, however, argued that it was offering this settlement evidence to prove permissible purposes under Rule 408: 

(1) to show lack of mistake, in that defendant frequently attempted to blame others for his failure to purchase insurance or bonds with premiums paid by victims, and (2) to show that defendant's motive for defrauding subsequent clients was, in part, to obtain money to repay Regency Oaks under the agreement.

The court agreed that these were permissible purposes but still found that the evidence was inadmissible under Federal Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. According to the court,

on the present state of the record, the probative value of the Regency Oaks agreement is substantially outweighed by the danger of unfair prejudice. This ruling is based on the risk that a jury will view the agreement as a confession of liability and guilt, regardless of the purpose for which the evidence is received. As the Fifth Circuit observed in United States v. Hays, "the potential impact of evidence regarding a settlement agreement with regard to a determination of liability is profound. It does not tax the imagination to envision the juror who retires to deliberate with the notion that if the defendant[] had done nothing wrong, [he] would not have paid the money back."...Measured against the government's need for the challenged evidence-particularly in light of the other evidence of the scheme to defraud-this potential prejudicial effect weighs heavily....Even a carefully crafted limiting instruction might not eliminate the prejudicial effect of the agreement. Thus, the defendant's Motion in Limine is granted as to the Regency Oaks settlement agreement, and the government is precluded from presenting evidence of the agreement at trial.

-CM

Symposium Announcement: Blaine Sloan Lecture on International Law

Pace International Law Review is proud to host this year's Symposium entitled "Comparative Constitutional Law: National Security Across the Globe" in conjunction with the Blaine Sloan Lecture on International Law: "After Gitmo: Obama Grapples with Preventive Detention." Scott Horton of Harper's Magazine is the keynote speaker.   

The symposium will be held on November 13, 2009.  It is a day long discussion on the legal issues faced by various nations which must balance constitutional and civil rights with national security needs. The symposium will be comprised of a series of panel discussions and short lectures throughout the day. 

For additional information & registration, please visit http://www.pace.edu/page.cfm?doc_id=24238.

(Not) Dismissed With Prejudice: First Circuit Finds Judges Have Discretion To Allow Jury Impeachment Based Upon Allegations Of Juror Racial Bias

Last year, in United States v. Benally, 546 F.3d 1230 (10th Cir. 2008), the Tenth Circuit found that Federal Rule of Evidence 606(b) precluded a juror from impeaching the jury's verdict based upon allegations that the verdict was tainted by racial bias against Native Americans. I wrote about Benally in several posts on this blog (here, here, here, here, here, and here), wrote an article inspired by the case, and submitted an amicus brief in support of Benally's petition for writ of certiorari to the Supreme Court (which the Supreme Court will soon hear). My argument is that application of Rule 606(b) to exclude jurors from impeaching their verdicts based upon allegations of juror racial, religious, or other bias violates the right to present a defense recognized in cases such as Chambers v. Mississippi, 410 U.S. 284 (1973), which found that courts cannot apply rules of evidence "mechanistically to defeat the ends of justice." As I note in the article and in the brief, the right to present a defense fits well with cases such as Benally because in McDonald v. Pless, 238 U.S. 264 (1915), the case laying the groundwork for Rule 606(b), the Supreme Court found that jury impeachment is not generally warranted but "recognize[d] that it would not be safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice.'" My argument is that juror racism is one of those instances. According to its opinion yesterday in United States v. Villar, 2009 WL 3738787 (1st Cir. 2009), the First Circuit agrees.

In Villar, after a jury trial, Richard Villar, a Hispanic man, was convicted of bank robbery. Hours later, defense counsel received an e-mal from one of the jurors disclosing that during deliberations another juror said, “I guess we're profiling but they cause all the trouble." Defense counsel subsequently filed a motion for a court inquiry into the validity of the verdict, but the district judge denied the motion, finding that he had no discretion to allow jury impeachment pursuant to Federal Rule of Evidence 606(b), which states 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 onto the verdict form.

Upon Villar's appeal, the First Circuit affirmed, finding it persuasive that "most courts have concluded that juror testimony about race-related statements made by deliberating jurors does not fall within either the 'extraneous prejudicial information' or the 'outside influence' exceptions of Rule 606(b), but does fall squarely within Rule 606(b)'s prohibition of post-verdict juror testimony."  

This was not, though, the end of the court's inquiry. Instead, the Court cited Pless for the proposition that "it would not be safe to lay down any inflexible [anti-jury impeachment] rule because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice.'" The court then found that the alleged racist comment by the juror in the case before it was one of those instances.

As I did in my article and brief, the court contrasted a case involving alleged juror racism with the Supreme Court's opinion in Tanner v. United States, 483 U.S. 107 (1987), in which the Supreme Court found that the application of Rule 606(b) to allegations of jurors getting drunk, getting high, and sleeping during trial did not violate the Sixth Amendment right to a competent jury. The First Circuit found that allegations of juror racial bias are fundamentally different because they implicate the stronger Sixth Amendment right to an impartial jury and sided with those courts which "have recognized that Rule 606(b) should not be applied dogmatically where there is a possibility of juror bias during deliberations that would violate a defendant's Sixth Amendment rights."

In my opinion, the First Circuit's opinion was compelling, and it was clearly a direct rebuke to the Tenth Circuit's opinion in Benally. The First Circuit noted that in Tanner, the Supreme Court precluded jury impeachment because, inter alia, it found that “several aspects of the trial process” can protect the Sixth Amendment right to a competent jury such as "voir dire, observations of the jury by counsel and the court during trial, opportunities for jurors to report inappropriate juror behavior prior to rendering a verdict, and the admissibility of non-juror testimony as to wrongdoing." The First Circuit then noted that the Tenth Circuit in Benally found that these same aspects protected the Sixth Amendment right to an impartial jury.

The First Circuit rejected this argument, concluding that

While the issue is difficult and close, we believe that the rule against juror impeachment cannot be applied so inflexibly as to bar juror testimony in those rare and grave cases where claims of racial or ethnic bias during jury deliberations implicate a defendant's right to due process and an impartial jury. In our view, the four protections relied on by the Tanner Court do not provide adequate safeguards in the context of racially and ethnically biased comments made during deliberations. While individual pre-trial voir dire of the jurors can help to disclose prejudice, it has shortcomings because some jurors may be reluctant to admit racial bias.[FN5]

[FN5]....As the trial judge in this case pointed out based on his many years of dealing with jury trials, many defense attorneys have sound tactical reasons for not proposing specific voir dire questions regarding racial or ethnic bias because it might be viewed as insulting to jurors or as raising an issue defense counsel does not want to highlight. As the government pointed out, voir dire using questions about race or ethnicity may not work to a defendant's benefit where one of the robbers was described as Hispanic.

In addition, visual observations of the jury by counsel and the court during trial are unlikely to identify jurors harboring racial or ethnic bias. Likewise, non-jurors are more likely to report inappropriate conduct-such as alcohol or drug use-among jurors than racial statements uttered during deliberations to which they are not privy.

The First Circuit thus "conclude[d] that the district court here did have the discretion to inquire into the validity of the verdict by hearing juror testimony to determine whether ethnically biased statements were made during jury deliberations and, if so, whether there is a substantial probability that any such comments made a difference in the outcome of the trial." Becayse "[t]he experienced trial judge in this case suggested that he might have conducted such an inquiry if he had possessed the discretion to do so," the First Circuit remanded for proceedings consistent with its opinion. It is my strong hope that the United States Supreme Court soon reaches a similar conclusion.

-CM

The Character Of The Matter: Texas Opinion Reveals Limits On Character Evidence Criminal Defendants Can Present

Like their federal counterparts, Texas Rules of Evidence 404(a)(1)-(2) create a Pandora's box with regard to propensity character evidence and place it firmly in the hands of the criminal defendant. If the defendant does not want the prosecution to present propensity character evidence against him, he merely needs to refrain from presenting any such evidence on his own behalf. Conversely, once the defendant presents propensity character evidence on his own behalf, he opens the door (box) for the prosecution to respond it kind. As the recent opinion of the Court of Criminal Appeals of Texas in Ex parte Miller, 2009 WL 3446468 (Tex.Crim.App. 2009), makes clear, however, there are limits on the types of character evidence that a criminal defendant can present at trial.

In Miller, Carl Miller was charged with murder for the stabbing death of Terry Burleson, a bail bondsman and member of a motorcycle club called "The Humping People." At trial, the evidence was undisputed that Miller killed Burleson, and the only issue was whether he did so in self-defense. The jury rejected that defense and convicted Miller of murder.

Miller thereafter filed an application for writ of habeas corpus, claiming, inter alia, that "his trial attorney was constitutionally deficient because he did not discover and offer evidence of Terry Burleson's prior conviction for misdemeanor assault." The Court of Criminal Appeals of Texas, however, rejected this argument, finding that even if Miller's attorney discovered the assault conviction, he could not have introduced it at trial.

The court did note that, pursuant to Texas Rule of Evidence 404(a)(2),

In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same.

But the problem for Miller, according to the court was that Texas Rule of Evidence 405(a) provides that

In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

In other words, Miller only could have presented reputation and/or opinion testimony regarding Burleson's alleged propensity for violence, not evidence of specific instances of violence by him, such as the assault leading to his conviction. The court did note that a defendant also

may offer reputation or opinion testimony or evidence of specific prior acts of violence by the victim to show the "reasonableness of defendant's claim of apprehension of danger" from the victim. This is called "communicated character" because the defendant is aware of the victim's violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or not. This theory does not invoke Rule 404(a)(2)  because Rule 404 bars character evidence only when offered to prove conduct in conformity, i.e., that the victim acted in conformity with his violent character. Here, the defendant is not trying to prove that the victim actually is violent; rather, he is proving his own self-defensive state of mind and the reasonableness of that state of mind.

The problem for Miller in this regard, though was that Miller "did not know Burleson; he was unaware of his character for violence. Thus, applicant's counsel did not, and could not, offer 'communicated character' evidence." Therefore, because the court also found that the conviction could not have been offered to prove a permissible purpose under Texas Rule of Evidence 404(b) and likely could not have been offered for impeachment purposes, it concluded that Miller's trial attorney was not constitutionally deficient.

-CM

We've Got Insurance: Court Awards New Trial After Husband Tells Wife-Juror About Insurance Information Excluded At Trial

A coal buyer sues the defendants, alleging that they had fraudulently induced it to make advance payments totaling $3.2 million to a coal seller for coal that was never received. At trial trial, and outside the presence of the jury, defense counsel seeks the court's permission to cross-examine a witness about an email exchange that referenced the plaintiff's insurance claim for the missing coal. The court denies permission, finding that the e-mail exchange is irrelevant and unduly prejudicial to the plaintiff. The problem is that a juror's husband is in court during this exchange and later tells his juror-wife about the plaintiff's insurance policy and the debate surrounding the exhibit. The juror-wife subsequently tells the other jurors "I can tell you this now so you won't feel so guilty, that it's possible that [the plaintiff] had an insurance policy." The jury thereafter returns a verdict for the defendants. If the plaintiff learns about the husband's comments after the verdict is entered, can it have the wife impeach the jury's verdict and obtain a new trial? According to a recent opinion by the United States District Court for the Western District of Virginia, the answer is "yes."

The facts in XCoal Energy & Resources LP v. Smith, 2009 WL 3482219 (W.D.Va. 2009), were as listed above, and the court found that the wife could testify pursuant to Federal Rule of Evidence 606(b), which states 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 onto the verdict form.

According to the court, the wife, Katherine Broadwater could testify consistent with this Rule because the Rule allows jurors to testify "as to content of the unauthorized communication, when they learned of the extraneous information, and how the information was introduced to the jury." This left the question of whether the extraneous information was sufficiently prejudicial to warrant a new trial.

According to the court, it was. The court noted that

Broadwater told jurors that her husband learned about the insurance policy after the court had excused the jury from the courtroom. Broadwater made a direct communication to the jury of information that the jury was clearly not supposed to hear. Further, Broadwater's out of-court statements prejudiced the plaintiff because the court could not offer limiting instructions to lessen any possible harm.

Broadwater's disclosure was a second-hand statement containing incomplete knowledge. This statement prejudiced the plaintiff because it supplied jurors with only a portion of the facts. If the issue of the plaintiff's insurance had arisen during trial, the court would have presented the entire picture to jurors by instructing the jury that the plaintiff's insurance claim was unsuccessful. Here, the content of Broadwater's disclosure created the exact scenario the plaintiff sought to avoid. Jurors learned about the insurance policy, but they had no idea that the plaintiff's insurance claim had been unsuccessful.  

Moreover, the court found that

The content of Broadwater's statement also harmed the plaintiff because of the subject matter involved-a party's insurance coverage. Typically in tort litigation, a defendant is harmed by knowledge or speculation about insurance coverage, since the jury may think that the insurance company, and not the individual defendant, will pay any damages awarded. To prevent juries from considering this prejudicial information, courts generally prohibit the admission of evidence merely used to inform the jury that the defendant has insurance coverage. For example, Virginia's Supreme Court has strictly enforced its rule that intentional comments about a defendant's insurance coverage, “made to inform the jury that a defendant is insured against the accident constitutes reversible error.”

In this case, it is the plaintiff, not the defendant, who carried insurance. But the principal reason for curtailing the intentional comments about insurance is the same as in other tort cases-insurance is irrelevant to the question of liability and the jury's consideration of insurance could improperly influence the jury's ultimate conclusion. Here, the jury learned that the plaintiff had insurance and, even worse, several jurors incorrectly thought that the insurance company had reimbursed the plaintiff's for the damages suffered. It is reasonable to assume that the disclosure about plaintiff's insurance coverage improperly colored the jury's deliberations and may have led some jurors to think the plaintiff did not need to collect monetary damages.

Finally, the court noted that

Broadwater's statement and the jury's discussion about insurance were brief, and it is argued that this rebuts the assertion that the extraneous information prejudiced the plaintiff. But the prejudicial effect of the disclosure was magnified because this is a close case. The jury was presented with starkly conflicting evidence concerning the alleged fraud. Accordingly, the improper information concerning insurance, no matter how brief, may very well have tipped the balance, at least for some of the jurors.

The court thus ordered a new trial, and, based upon the above facts, that seems to be the only correct conclusion that it could have reached.

-CM 

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