Wednesday, December 22, 2010
Uncompromising: Eastern District Of Tennessee Precludes Jury Impeachment To Prove Compromise Verdict
A defendant is charged with twelve counts. During deliberations, the jury sends a note to the judge which indicates that some jurors would not vote guilty. The note apparently also contains information about the numerical division of the jury. The judge reads aloud to the prosecutor and defense counsel the portion of the note that says that some jurors would not vote guilty. The judge then informs the parties that the note contains information about the numerical division of the jury, but the judge does not reveal this numerical information. The judge thereafter asks the parties for objections to an Allen charge. When the parties don't object, the judge recalls the jury and gives them the Allen charge. Later that day, the jury returns a verdict convicting the defendant on some charges but acquitting him on others. Should defense counsel be able to see the entire note and/or interview jurors to determine whether there was a compromise verdict? According to the recent opinion of the United States District Court for the Eastern District of Tennessee in United States v. Kennedy, 2010 WL 5057210 (M.D. Tenn. 2010), the answer is "no" on both counts.
In Kennedy, the facts were as stated above. In finding that defense counsel could not interview jurors to determine whether there was a compromise verdict, the court held that "juror testimony is not admissible to show a compromise verdict." Indeed, the Advisory Committee's Note to Federal Rule of Evidence 606(b) clearly indicates that jurors can't impeach their verdicts through allegations of a compromise verdict.
Moreover, in finding that the judge acted properly in connection with the Allen charge, the Middle District of Tennessee held that
Other Circuits have upheld the process the Court utilized in this action. In [United States v. Henry, 325 F.3d 93, 106 (2nd Cir. 2003), the district court received a similar note from the jury and elected not to reveal the exact numerical division to the attorneys, but gave an Allen charge....The Second Circuit rejected the defendant's argument for review of the entire note, but the Circuit ruled that the trial court should have informed counsel that it was not revealing to disclose vote split. Id. The Second Circuit relied on United States v. Robinson, 560 F.2d 507, 511-12 (2d Cir.1977), where the district court received two jury notes and revealed the general nature of the first note, but did not disclose the vote split cited in the note. Upon receipt of a second note, the district court sealed that note without informing counsel of any of its contents. There, the concurring and dissenting judges agreed that not revealing the vote split among jurors was proper. Id. at 524. (Oakes, J., dissenting) ("The trial court here should have revealed to counsel the substance of the juror's note, without disclosing the individual juror's name or the jury vote."). The Fifth Circuit is in accord. United States v. Warren, 594 F.2d 1046, 1049 (5th Cir.1979) (district court did not err in failing to disclose the vote of the jury).