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Univ. of South Carolina School of Law

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Friday, October 8, 2010

Striking Out: Minnesota Court Permits Jury Impeachment Regarding Whether Jurors Considered Stricken Testimony

Like its federal counterpart, Minnesota 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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. 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.

A witness testifies at trial, and the trial court later strikes that testimony. Defense counsel then moves for a mistrial, and the trial court denies the motion but issues a curative instruction instructing the jury to disregard the stricken testimony. The defendant thereafter moves for a mistrial. Should the State be able to introduce an affidavit by the jury foreperson stating that the jury honored the curative instruction? According to the recent opinion of the Court of Appeals of Minnesota in State v. Paquin, 2010 WL 3853342 (Minn.App. 2010), the answer is "yes," despite Rule 606(b). I disagree. 

In Paquin, Richard Dean Paquin, II was charged with first- and third-degree criminal sexual conduct for acts committed against his girlfriend's brother, K.L., from April 2001 through July 2003. At trial,

The county attorney's victim-witness coordinator, T.D., testified that she took notes during an interview with D.L. T.D. testified that D.L. stated during the interview that “[appellant] told her not to go into his top drawer[,][but] [s]he went into his top drawer, and she found his pornography.” This testimony contradicted D.L.'s statements that she bought the pornography and that there was no place in the apartment she shared with appellant where appellant forbade her to go. On cross-examination, T.D. stated that her notes on this subject were not included in the summary provided to the defense. The district court found “a discovery violation.” In determining a remedy, the district court considered a continuance, but determined that additional investigation was not necessary. The court considered appellant's attorney's request for a mistrial, but stated that while the error was obvious, it was not so prejudicial to warrant a mistrial. The district court concluded that “the prejudice, although concerning, ... c[ould] be cured by a curative instruction or by re-calling [D.L.]” The court instructed the jury: “You are to disregard the testimony of [T.D.] as it relates to any alleged statement by [D.L.] that [appellant] instructed her not to go into [his] top dresser drawer."

After he was convicted, Paquin moved for a new trial, in part, because of the state's failure to disclose T.D.'s notes. The court, however, denied Paquin's motion, finding

that the curative instruction was the appropriate remedy. The court found that the state should have provided the defense with its notes, but chose not to in order to "'save a little something' for possible impeachment at trial. This is a trial by surprise tactic that is discouraged by the open discovery rules." The district court concluded, however, that the “nondisclosure [ ] was not so serious and prejudicial that [appellant's] right to a fair trial was denied.” The court based this conclusion on

an affidavit of [the jury] foreperson....submitted to show ‘whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror[.]’ From the [ ] affidavit, it appears that the jury did not engage in any improper deliberations in violation of court orders. [FN1]

FN1. The state included the affidavit as an exhibit with its submission in opposition to appellant's new-trial motion. The district court accepted the affidavit under Minn. R. Evid. 606(b). Rule 606(b) provides that while a juror may not testify as to any matter occurring during the jury's deliberations, to the effect of anything upon a juror's mind, or emotions influencing a juror in reaching a verdict, a juror may provide an affidavit as to “whether extraneous prejudicial information was improperly brought to the jury's attention.” The affidavit here indicates that the jury did not discuss information that the district court ordered the jury to disregard and that the jury did not base its verdict on information that the district court ordered the jury to disregard. The affidavit falls under the exception to rule 606(b).

 

The Court of Appeals of Minnesota thereafter affirmed this decision. This doesn't make any sense to me. Extraneous prejudicial information is “information that was not admitted into evidence but nevertheless bears on a fact at issue in the case.” See, e.g., Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006). But the evidence in Paquin was admitted into evidence, even though it was later stricken. In such circumstances, courts consistently have deemed the jury's consideration or nonconsideration of such evidence to be internal to the jury deliberation process and thus not a proper topic for jury impeachment. See, e.g., Bradford v. City of Los Angeles, 21 F.3d 1111 (9th Cir. 1994).

If this were not the case, nearly every verdict would be subject to jury impeachment, which would defeat the very purpose of the jury impeachment rule. It is hard to think of a trial where some evidence, question, or testimony was not admitted and later stricken. If jurors could testify or submit affidavits concerning whether they considered the stricken evidence, question, or testimony, jurors would be subjected to continual harassment by the losing party.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2010/10/609a2-state-v-paquinnot-reported-in-nw2d-2010-wl-3853342minnapp2010.html

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