Friday, September 17, 2010
Gasping At Straws: Fourth Circuit Finds Rule 606(b) Doesn't Cover Party's Observation Of Jury's Reaction To Evidence
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.
It is important to note, though, that the Rule only covers a juror's testimony and/or a juror's affidavit, a point not quite made clear by the recent opinion of the Fourth Circuit in Keeshan v. Eau Claire Cooperative Health Centers, Inc., 2010 WL 3556172 (4th Cir. 2010).
Dr. Susan Keeshan, a physician who is Jewish and of Hispanic descent, sued her former employer, Eau Claire Cooperative Health Centers, Inc. (the Cooperative), alleging under Title VII that she was terminated in retaliation for filing a complaint claiming that her supervisors discriminated against her because she is not black. Keeshan also brought claims under state law for wrongful discharge and nonpayment of wages. The district court granted summary judgment to the Cooperative on the wrongful discharge claim. After a trial the jury found for the Cooperative on the Title VII retaliation and South Carolina Payment of Wages Act claims[,] Keeshan appeal[ed]....
One of the grounds for Keeshan's appeal was that
Over objection from Keeshan's counsel, the jury heard Keeshan testify on cross-examination about her income after leaving the Cooperative. Keeshan said that her yearly income in 2007 was $300,000. Keeshan's counsel argued that her income after 2005 was irrelevant because she was not seeking back pay for any period after that year. The Cooperative's counsel responded that her current income was relevant in that it "show[ed] that she is much better off today than if she had stayed where she was."...Moreover, the Cooperative's counsel maintained that Keeshan's current salary was relevant to her request for punitive damages. The court was persuaded by the last point and ruled that the 2007 salary testimony was admissible if Keeshan sought punitive damages.
In her subsequent motion for a new trial, Keeshan argued "that the jury was unduly prejudiced after learning of her $300,000 salary" and "submitted an affidavit swearing that she heard 'gasps from the jury box” and that she could tell from the astonished looks on jurors' faces that they had already decided against her." The district court denied this motion, and the case eventually reached the Fourth Circuit on Keeshan's ensuing appeal. The Fourth Circuit agreed with Keeshan that
that the district court's admission of her testimony on her post-termination income was based on an erroneous legal premise and was therefore an abuse of discretion. The court found the testimony relevant to Keeshan's request for punitive damages, which she sought under her Title VII retaliation claim. Title VII permits recovery of punitive damages from private employers "if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual."...This standard requires the plaintiff to show that the employer "discriminate[d] in the face of a perceived risk that its actions will violate federal law."...It is axiomatic that the purpose of punitive damages is to punish and deter defendants. "Most often ... eligibility for punitive awards is characterized in terms of a defendant's motive or intent."...That Keeshan's salary nearly doubled after leaving the Cooperative may indicate that Keeshan was better off in another job. But her improved financial status is irrelevant to her contention that the Cooperative terminated her with malice or reckless indifference to her right under Title VII to bring a racial and religious discrimination complaint.
In finding that this evidence was somewhat prejudicial (although the court ultimately found that its admission constituted harmless error), the Fourth Circuit relied upon Keeshan's affidavit, rejecting the Cooperative's argument that it was inadmissible under Federal Rule of Evidence 606(b) by finding that "Keeshan's affidavit is more accurately characterized as Keeshan's impression of the effect of her testimony on the jury, not evidence of a juror statement."
My response is that even if Keeshan's affidavit stated that she heard a juror saying, "I'm not giving her a dime," it still wouldn't have been covered by Rule 606(b). The reason is that the rule only covers juror affidavits, not affidavits by individuals who overhear conversations by members of the jury. Indeed, in the Supreme Court's most significant opinion on Rule 606(b) -- Tanner v. United States, 483 U.S. 107 (1987) -- the Court reaffirmed the Fourth Circuit opinion in United States v. Taliaferro, 558 F.2d 724, 725-726 (4th Cir. 1977), in which the court found that a marshal could properly testify about jury deliberations when he accompanied them to a club where the judge sent jurors to dine and deliberate.