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Univ. of South Carolina School of Law

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Friday, October 15, 2010

The Accident Experiment: Court Refuses To Grant New Trial Despite Juror Performing Accident Scene "Experiment" In Car Crash Case

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 that there is a civil action and a trial based upon a car accident at a certain intersection. And let's say that a juror goes to the scene of the car accident and conducts an "experiment" related to the accident. The jury, however, does not discuss the experiment during deliberations. After the verdict is granted, if this experiment is exposed, should a new trial be granted? According to the recent opinion of the United States District Court for the Eastern District of Texas in Swanson v. Roehl Transport, Inc., 2010 WL 3702589 (E.D. Tex. 2010), the answer is "no." I disagree. 

Swanson arose

out of a collision between Plaintiff Arthur Swanson, Jr. ("Plaintiff" or "Swanson") and Defendant Paul Connell ("Defendant" or "Connell") at the intersection of Highway 59 and Highway 49 in Jefferson, Texas. A jury trial was held in this case on June 16 and 17, 2010. The jury reached a verdict finding Defendants liable and awarding Plaintiff $96,449.89 in damages. The Court subsequently reduced Plaintiff's recovery to $49,189.00 per the jury's apportionment of Plaintiff's responsibility in the amount of 49%.

Unfortunately, that's all we get in the way of facts from the opinion, but we are also told that, after the verdict was entered, Swanson moved for a new trial based upon the written statement and testimony of one juror, Ms. Guthrie, that another juror "practiced a test run toward an intersection" during the trial and concluded that she could easily stop her car going 40 m.p.h. without interfering with the intersection. (Based upon this statement and testimony, I think that we can assume that Swanson claimed that he was only driving 40 m.p.h. and yet could not avoid the subject collision).

In addressing this argument, the United States District Court for the Eastern District of Texas noted the dichotomy in Federal Rule of Evidence 606(b): While jurors can testify about the fact of extraneous prejudicial information, they cannot testify about the effect of such information on deliberations. Instead,

Because the Court cannot investigate the subjective effects of any allegedly prejudicial extraneous influences on the jury, the question of whether prejudice resulted from the juror's experiment must be resolved by the Court drawing reasonable inferences as to the probable effect of the juror's misconduct. "Though a judge lacks even the insight of a psychiatrist, he must reach a judgment concerning the subjective effects of objective facts without benefit of couch-interview introspections."

The court then attempted to draw such reasonable inferences, concluding that based upon

Ms. Guthrie testimony that the jury did not discuss [the] "experiment" at all during the deliberations and that no other jurors relayed their driving experiences, the Court finds that even if the juror's description of her driving "experiment" was improper and introduced extraneous information into the jury deliberations, it did not influence the jury's decision making process and, thus, did not create a reasonable probably of prejudice. Accordingly, the Court denies Plaintiff's request for a new trial based on juror misconduct on these grounds.

I think that these were unreasonable inferences. First, regardless of whether the juror mentioned the experiment to other jurors, he conducted the experiment himself, and this obviously prejudiced him in deciding that the Plaintiff was partially responsible. Second, from the above analysis, it is clear that the juror did indeed mention his experiment to the other jurors; the jury simply didn't discuss the experiment during deliberations. Frankly, I don't see how this fact makes the experiment less prejudicial. At least if the experiment were discussed, the jurors could have seen the likely flaws with the experiment. For example, was there precipitation on the ground at the time of the accident but not the experiment or vice versa? What was Swanson's car and what was the juror's car? Did the cars have the same braking systems?

These are exactly the types of possible differences that make such jury experiments improper, and the fact that the jury didn't discuss the experiment during deliberations makes it likely that at least some jurors took the experiment as strong evidence of the Plaintiff's fault. Therefore, I think that the court easily should have granted Swanson's motion for a new trial.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/10/606b-experiment-roehl-transport-incswanson-v-roehl-transport-incslip-copy-2010-wl-3702589edtex2010.html

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