Saturday, December 25, 2010
In Jury, We Trust: Court Of Appeals Of Colorado Allows Juror To Discount Effect Of Prejudicial Article
We trust jurors. We have to. This is the basis for Federal Rule of Evidence 606(b), which 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.
As Justice O'Conner noted in Tanner v. United States, 483 U.S. 107 (1987), "There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it." But what happens when jurors are exposed to extraneous prejudicial information or an improper outside influence? Do we still trust jurors when they say that they verdicts were not tainted by such information or influence? According to the recent opinion of the Court of Appeals of Colorado in People v. Moore, 2010 WL 5013681 (Colo.App. 2010), the answer is "yes." I'm not sure that I agree.
In Moore, Lessell Henry Moore appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree murder, two counts of first degree burglary, first degree assault, sexual assault, menacing, and violation of a protection order. One of the grounds for his appeal was that the husband of one of the jurors read an article to his juror-wife. This article, inter alia, contained information about Moore's extensive criminal history which was inadmissible at trial because it contained propensity character evidence. Indeed, the juror-wife revealed this fact at trial, but the trial judge denied Moore's motion to excuse her after she said that she did not really pay attention to the article and could remain fair and impartial.
The Court of Appeals of Colorado allowed the juror-wife to impeach the jury's verdict based upon this allegation because the article constituted extraneous prejudicial information under Colorado Rule of Evidence 606(b). This left the question of whether the juror's exposure to this information required a new trial, and the court found that it did not because
In response to the court's questions, juror S said that: her husband read the article to her while she was in another room; she did not pay much attention to him; she did not remember anything from the article about defendant; and she could remain fair and impartial....
Defendant's citation of [People v. Moore, 701 P.2d 1249, 1252-53 (Colo.App.1985)] for the proposition that a new trial was required, because the prior conviction information would have warranted reversal if offered directly into evidence, is misplaced. Here, the trial court accepted the juror's statement that although she recalled some information from the article, she did not remember any information concerning defendant.
Really? The original basis for precluding jurors from impeaching their own verdicts was that a person testifying to his own wrongdoing was, by definition, an unreliable witness. If it seems that extraneous prejudicial information or an improper outside influence reached the jury, of course this rule needs to be pushed aside because the concern is that someone besides the jurors tainted the verdict. But if the juror was implicated in the wrongdoing (and I would say that the wife-juror was), shouldn't the old rationale apply, and shouldn't the juror be precluded from testifying that the information/influence had no impact on his or her decision (and this is even assuming that jurors should ever be allowed to testify about the effect of information/influence on decisions)?