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December 8, 2010
Structural Wound: First Circuit Implies Improper Jury Instructions Can Form Proper Predicate For Jury Impeachment
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.
Based upon this language, I don't understand an important part of the recent opinion of the First Circuit in United States v. Jadlowe, 2010 WL 4910239 (1st Cir. 2010).
In Jadlowe, Marc Jadlowe was charged with various drug-related crimes. Before opening statements, the district judge instructed the jury as follows:
I just have a few special instructions about your conduct as jurors. The first one is the hardest. You are not to discuss the case with each other or anyone else until you retire to the jury room at the end of the case to deliberate on your verdict.
This rule is not as strict as it sounds. When I say you are not to discuss the case, I mean it in this sense. You are not to express an ultimate opinion about the outcome of the case.
Personally, even this rule, the way I state it, I don't think is a terribly good rule. I understand the reason for it. The thought is that because some of us tend to be more opinionated and assertive than others, jurors who are more assertive will tend to influence the opinions of fellow jurors if jurors are talking about the case before they hear all of the evidence. I think this, in fact, underestimates the intelligence of almost all the jurors that I have worked with over the years, but, nonetheless, this is the federal rule. It's been abolished in a number of states, but it is the federal rule. So we have to respect it. Like I say, whether we agree with the wisdom of a rule or not, it is the rule, the rule we follow.
But, again, don't over-interpret what I said. Of course you'll talk about interesting things that happened during the course of the trial, idiosyncracies of the judge and the lawyers, interesting things witnesses say, significant pieces of evidence. Just do not express an opinion about the case, again, until you begin deliberations and each have an opportunity to make your opinions known.
According to the First Circuit, defense counsel correctly but unsuccessfully objected that "it's inappropriate for the jurors to discuss the case in any way, shape, or form until all of the evidence is in, they've heard closing argument, and they'[v]e heard your Honor's charge." This left the question of whether this erroneous instruction required a new trial after Jadlowe was convicted. Jadlowe claimed that the error was structural and automatically required a new trial "because a defendant would never be able to probe the jury's deliberations to prove prejudice. Inquiries into jury deliberations are, in fact, narrowly restricted by Federal Rule of Evidence 606(b), which bars juror testimony "as to any matter or statement occurring during the course of the jury's deliberations."
The First Circuit disagreed, finding that
The relevant inquiry...is not into the nature of the formal deliberations that occurred once the presentation of evidence concluded, but the nature of any juror discussion about the case prior to the formal deliberations. Probing such premature discussions is neither impermissible nor impossible. Indeed, courts routinely examine allegations of juror misconduct involving improper external influences and communications among jurors, and we see no relevant distinction between those contexts and this one. The threshold question would be whether any premature discussion took place. If so, was it among all jurors or just a few? Did discussion occur regularly through the proceedings, or only once-and at what point? What was the content of the discussion?
With due respect to the First Circuit, courts indeed have found that there is a relevant distinction. Courts generally found that jury instructions are neither extraneous prejudicial information nor an improper outside influence, meaning that the way that jurors interpret and/or apply them cannot form the proper basis for jury impeachment (see, e.g., here).
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As I read the excerpts above, the First Circuit is saying:
1) Under the rule, courts routinely question jurors regarding improper external communications and extraneous prejudicial information to determine whether any such communications or information resulted in an unfair trial, rather than automatically granting a new trial merely upon proof from the questioning that such communications occurred or such information was received;
2) When the rule does not apply, that is, when the circumstances to be investigated occurred before jury deliberations began, as is the case of juror instructions relating to their conduct prior to entering into deliberations and their subsequent pre-deliberation conduct, the courts are equally capable of questioning the jurors about such circumstances and determining whether those circumstances resulted in an unfair trial;
3) therefore, the automatic grant of a new trial is not necessary when improper jury instructions (regarding pre-deliberation conduct) are given, but an inquiry can be made as to the prejudicial effect of those instructions, since what is to be investigated is not restricted by Rule 606(b) since all of the events to be explored occurred before jury deliberations began.
In other words, there is no inquiry being made into the mental processes and decision-making that went on during jury deliberations, but only into pre-deliberation conduct, which means the court can question the jurors about that pre-deliberation conduct and the effect of the court's instructions on that conduct.
It is irrelevant, in this reading, whether juror instructions are extraneous prejudicial information or an improper outside influence because those instructions and the subsequent conduct (pre-deliberation) simply are not subject to these 606(b) restrictions.
Thus, the First Circuit did not find that the judge's instructions were either extraneous prejudicial information or an improper outside influence. The appellate court merely found that the analysis to be undertaken in both circumstances was similar and that consequently neither situation requires an automatic new trial, not that the inquiry to be made would be proper under 606(b) because the instructions were fell within the scope of either of these permissible conditions. The inquiry to be made is proper because 606(b) simply doesn't apply.
Posted by: David in Texas | Dec 10, 2010 2:18:30 PM