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Univ. of South Carolina School of Law

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Saturday, February 13, 2010

Versions Of Violence: Court Of Appeals Of Tennessee Refuses To Read Violence Exception Into Rule 606(b)

Tennessee 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 course of the jury's deliberations or to the effect of anything upon any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

I have written previously about how Minnesota added an exception to its version of Rule 606(b) which permits jury impeachment "as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict." In Gaines v. Tenney, 2010 WL 199628 (Tenn.Ct.App. 2010), a trial court had read a similar violence exception into Tennessee Rule of Evidence 606(b), but the Court of Appeals of Tennessee reversed.

In Tenney

a negligence action arising from an automobile accident, the original trial resulted in a jury verdict in the amount of $10,000 for the plaintiff. The plaintiff then moved for a new trial, alleging juror misconduct. After reviewing a juror's deposition testimony, the trial court ordered a new trial. A second jury trial and verdict resulted in a $30,000 judgment for the plaintiff. Following the second judgment, the defendants timely appealed the trial court's order for a new trial.

The trial court ordered the new trial based upon the allegations of juror Janet Markley, who alleged that

One of the other jurors became quite verbally hostile, in that, he was concerned about the time frame that we would be deliberating or discussing or talking all evening, and possibly have to come back another day to deliberate. And he was cussing and swearing at me, and at one point reached across-or leaned across the table at me and then threw paper at me.

When Markley was questioned about how the other juror's (mis)conduct affected her, the following exchange took place:

A. I was alarmed, shocked, and as the timing continued-I mean, he was the most verbal, but the others-there were several others that were obviously quite angry at me, again, because of the time factor, and I wanted to discuss and deliberate. And I was somewhat fearful.

Q. Did the threats or the actions of the juror that you described affect whether you agreed or disagreed with the final verdict in the case?

A. Yes.

Q. How so?

A. I guess at that point I was feeling so overwhelmed, and not knowing what to do or who to discuss it with, and seeing that it was becoming more hostile, that I just decided to give in and go along with what one or two people wanted.

Q. Did you fear for your safety if you failed to acquiesce?

A. Yes.

Q. After the verdict was rendered, did you have any fear that you would be subjected to violence if you had not acquiesced to the verdict?

A. Yes.

Q. Will you tell us about that?

A. Again, just that this man was so hostile, the next day as I was out driving around in Sevierville, I kept looking in my rear-view mirror kind of looking around thinking, you know, that he was going to be there or come up and-I don't know what he was going to do, but I just-I was afraid I was going to run into him and something would happen not good.

The trial court found that it could consider these allegations despite Tennessee Rule of Evidence 606(b) because

The attack upon Ms. Markley subverted the jury's role to deliberate and fully evaluate the evidence and the chilling effect that the juror's actions likely had on the other members of the jury panel cannot be ignored. It is very likely that the other jurors were intimidated or placed in fear after the violent encounter. This unquestionably resulted in there being no free exchange of ideas or evaluation of the evidence.

But the Court of Appeals of Tennessee disagreed and reversed, finding that

The trial court was understandably concerned to find that one juror had been intimidated by another and had perceived a threat of violence. Responding to this concern, the trial court concluded that intra-jury intimidation had “resulted in there being no free exchange of ideas or evaluation of the evidence.” However, Rule 606(b) was actually designed to preserve the free exchange of ideas during deliberations....Rule 606(b) strikes a balance between public policies of “protect[ing] the litigants from verdicts tainted by extraneous prejudicial information or outside influence” and simultaneously “insur[ing] that jurors will not be guarded in their deliberations for fear of later scrutiny by others.”...An extension of the exceptions allowed under Rule 606(b) is beyond the scope of this Court's review, and moreover, would open the sanctity of the jury deliberation process to unwarranted post-trial investigation.  

So, what do readers think? If courts were to add violence exceptions to anti-jury impeachment rules, would it increase or decrease the free exchange of ideas?

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/02/606bgaines-v-tenneyslip-copy-2010-wl-199628tennctapp2010.html

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