EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, December 30, 2010

It's An Eye Roller: Court Of Appeals Of Alaska Precludes Jury Impeachment Based On Prosecutor's Eye Rolling

Similar to its federal counterpart, Alaska Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement 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. 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.

So, does this Rule prevent the receipt of juror affidavits indicating that the prosecutor rolled his eyes during certain parts of trial? According to the recent opinion of the Court of Appeals of Alaska in Silvera v. State, 2010 WL 5129199 (Alaska App. 2010), the answer is "yes." 

In Silvera, Michael A. Silvera was convicted of second-degree assault after he cut David Moore in the face with a knife during an argument between Moore and Silvera's fiancĂ©e. After he was convicted, 

Silvera filed a motion for a new trial, arguing that five jurors had witnessed eye-rolling and other inappropriate facial expressions by the prosecutor throughout the trial. Silvera argued that this conduct deprived him of a fair trial because it conveyed the prosecutor's personal opinion about his guilt and veracity, and suggested that the prosecutor had personal knowledge of facts not in evidence.

The trial judge, however, denied the motion, promoting Silvera's appeal after he was convicted. In rejecting Silvera's argument that he should have been able to introduce juror affidavits to prove this prosecutorial misconduct, the Court of Appeals of Alaska noted that

It could be argued that the juror affidavits submitted by Silvera were wholly inadmissible. The relevant portion of Evidence Rule 606(b) states that a court is prohibited from receiving the testimony or affidavits of jurors when offered to impeach a verdict, unless the testimony or affidavits relate to "whether extraneous prejudicial information was improperly brought to the jury's attention." This court has stated that, for purposes of Rule 606(b), "extraneous" information means information that reaches the jurors other than through the normal trial process. Thus, when a lawyer engages in improper argument, or when a witness gives a non-responsive answer, or offers objectionable testimony, or makes an otherwise improper statement in open court, these improprieties do not constitute "extraneous" information within the meaning of Rule 606(b).
We are aware of some federal authority suggesting that there may be occasions when information that reaches the jury through the normal trial process may still be deemed "extraneous" for purposes of the federal analog to Evidence Rule 606(b). The parties have not briefed this issue. And, as we are about to explain, we need not resolve this issue-because, even if the affidavit Silvera submitted in superior court was admissible under Evidence Rule 606(b), it fails to establish that Silvera is entitled to relief.

This was because, as the court went on to explain,

The affidavit that Silvera submitted d[id] not connect the prosecutor's challenged conduct to the testimony of any particular witness or to any particular piece of evidence; nor d[id] the affidavit establish with any certainty how pervasive the prosecutor's reactions were, or whether the prosecutor appeared to be intentionally directing these reactions to the members of the jury.



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