Monday, August 23, 2010
There Will Be Blood: Ninth Circuit Case Raises Question Of Whether Biblical Passages Constitute Extraneous Prejudicial Information Under Rule 606(b)
Federal 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 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. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
So, let's say that a defendant is on trial for murder and during the sentencing phase of trial a juror studies the Bible, finds Genesis 9:6, which states that "[w]ho so sheddeth man's blood by man shall his blood be shed," and reads that passage to other jurors. After the jury sentences the defendant to death, can a juror impeach the verdict based upon this (mis)conduct? According to the recent opinion of the Ninth Circuit in Crittenden v. Ayres, 2010 WL 3274506 (9th Cir. 2010), the answer is "maybe," but the sentence won't be overturned.
The facts in Ayres were as stated above, with the defendant eventually making his allegation to the Ninth Circuit is a federal habeas petition. The question which it seemed that the court had to address was whether the Biblical passage constituted extraneous prejudicial information, which is generally defined as information not admitted into evidence which bears on a fact at issue. The Ninth Circuit noted that courts had split on this issue, with the Eleventh Circuit finding in McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir.2005), that Biblical passages constitute extraneous prejudicial information but the Fourth Circuit finding in Robinson v. Polk, 438 F.3d 350, 363 (4th Cir.2006), that biblical passages do not bear on facts at issue in a case and so are not "extraneous prejudicial information."
The Ninth Circuit, however, found that it did not need to revolve this split because even if the Biblical passage was extraneous prejudicial information, the juror's mention of it to other jurors was not sufficient to order a new sentencing phase of trial based upon its prior opinion in Fields v. Brown, 431 F.3d 1186 (9th Cir.2005). According to the court,
Our opinion in Fields, in which we also considered a claim of Bible-related juror misconduct, forecloses Crittenden's claim that Clark's mention of Genesis 9:6 prejudiced him. In Fields, the jury's discussion of biblical passages was far more extensive, but we nonetheless concluded, reviewing the matter de novo, that there was no prejudice. The foreperson there "checked the Bible and...made notes 'for' and 'against' imposition of the death penalty which he brought to the deliberations the next day."...His notes were passed around and the religious material "discussed by some jurors."...By contrast, nothing "but the briefest mention of the Bible verse took place" during penalty phase deliberations in [defendant]'s trial. As the district court found after ordering an evidentiary hearing, the only juror who recalled any mention of the biblical passage recalled that there was no discussion of it "except for a possible statement regarding the verse's irrelevance to the case." Moreover, the passage itself was innocuous compared to the contents of the foreperson's note in Fields, which quoted four passages besides Genesis 9:6, including the "eye for eye" maxim and Romans 13:1-5,...which has been understood as cloaking the "State with God's authority...."
I think that these are both pretty interesting questions, but I will only address the first one in this post. My inclination is to believe that Biblical passages are extraneous prejudicial information and that the narrow focus upon Biblical passages not bearing on facts at issue by the Fourth Circuit is misguided. Rather, I would contend that information which could cause jurors not to focus on facts at issue should constitute extraneous prejudicial information. In other words, if jurors followed Genesis 9:6, they would sentence the defendant to death based upon that passage rather than based upon the facts of the case.