EvidenceProf Blog

Designers Of The Arkansas: Court of Appeals Of Arkansas Finds Improper Bolstering Testimony Violated Rule 608(a)

Like its federal counterpart, Arkansas Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. 

As the language and the recent opinion of the Court of Appeals of Arkansas in Stalter v. Gibson, 2010 Ark. App.801 (Ark.App. 2010), make clear, a witness' credibility can only be bolstered after it has been attacked.

In Gibson, Jay and Charlotte Stalter and Jimmy and Dianne Gibson were

at odds over the effect of a deed conveying 170 acres that contained no reservation of mineral rights. Appellants Jay and Charlotte Stalter, who were the sellers, asked the circuit court to set the deed aside or reform it to reflect their reservation of half of the mineral rights. Appellees Jimmy and Dianne Gibson, the buyers, claimed that the deed accurately memorialized the parties' agreement to convey all mineral rights to the buyers when the buyers paid off the property. Following a bench trial, the circuit court upheld the deed as written.

On appeal, the Stalters claimed that the circuit judge erred by allowing Circuit Judge David Laser (who was not the presiding judge) take the stand to testify that Mrs. Gibson had been his court reporter for eleven years and had a reputation in the community for being truthful, honest, and above reproach. The circuit judge did so over the Stalters' objection that character evidence was prohibited unless Mrs. Gibson's reputation for truthfulness had been attacked.

In agreeing with the Stalter's the Court of Appeals of Arkansas noted that Arkansas Rule of Evidence 608(a) only allows for a witness' credibility to be bolstered after it has been attacked and held that

In the present record, we discern no attack on Mrs. Gibson's character for truthfulness during the bench trial beyond the typical disagreement between litigants over the recollection and meaning of certain events. The mere fact that a witness is contradicted by other evidence does not constitute an attack on the witness's character for truthfulness.

In the end, though, the appellate court found harmless error and affirmed the circuit judge's order.

-CM

Bad Reputation?: Sixth Circuit Finds No Error With District Court's Prevention Of Character Evidence Question

A husband and wife are charged with conspiracy to commit money laundering, six counts of money laundering or aiding and abetting money laundering, and one count of harboring or concealing a fugitive. The husband has his attorney call a character witness to ask him whether he had an opinion as to the husband's reputation for "integrity, honesty and fair dealing" among his friends and associates. The prosecution objects, and the court sustains the prosecution's objection, prompting defense counsel to modify his question and ask whether the husband's reputation for "truth and veracity" was "good." The character witness answers that the husband's reputation for "truth and veracity" was "good." Is such an answer to this second question the functional equivalent of a positive answer to the first question? According to the recent opinion of the Sixth Circuit in United States v. Reid, 2010 WL 4829852 (6th Cir. 2010), the answer is "yes." I disagree.

In Reid, the facts were as stated above, with the Wayne and Donna Reid being the defendants, and evidence adduced at trial establishing

the existence of a large-scale, mostly marijuana, drug trafficking operation centered in rural Clay County, Kentucky. That operation generated millions of dollars in illicit drug proceeds for its distributors, one of whom, Larry Jackson, Jr.,...was a long-time friend of Wayne and Donna Reid. The money laundering conspiracy began in January 2000, after the drug trafficking operation was well established, and continued until the last of the substantive money laundering transactions occurred on November 9, 2005. In all, Reid received an estimated $1.5 million in drug proceeds from Jackson either directly, or at Jackson's direction after he became a fugitive.

After Wayne was convicted, he appealed, claiming that the trial court improperly precluded his character witness from answering the first question listed above. The Sixth Circuit did not even have to address this issue because the government conceded that the question should have been allowed under Federal Rule of Evidence 404(a)(1), which provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused - Evidence In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution....

According to the court, though, the problem for Reid was that he did

not explain in what way his reputation for "integrity, honesty, and fair dealing" would be distinct from his reputation for "truth and veracity."...

Even if Reid had articulated a basis for distinguishing between these traits, we find any error in the exclusion of this testimony to be harmless....[O]ther character witnesses testified (1) that Reid had a "good" reputation for "truth and veracity," and (2) that Reid had a "good" reputation for "integrity, honesty, and fair dealing." (Emphasis added.)

Now, I certainly agree with the court's harmless error ruling in light of the fact that other character witnesses in fact did testify that Reid had a good reputation for integrity, honesty, and fair dealing. But I don't see why the Sixth Circuit thought that Reid needed to explain why his reputation for "integrity, honesty, and fair dealing" would be distinct from his reputation for "truth and veracity." A person's reputation for "truth and veracity" does seem to match up with his reputation for honesty. But it seems to me that testimony that an individual has a good reputation for integerity and fair dealing is different from testimony that he has a good reputation for honesty and veracity.

You could say that a person is "honest," and I could still see that person harboring a fugitive. But I'm not sure that I could say the same about a person with "integrity." And I could see an "honest" person having some role in a money laundering conspiracy, but I wouldn't think the same about a person with a reputation for "fair dealing." 

-CM

Taxing Time: Middle District Of Florida Precludes Jury Impeachment In Wesley Snipes Tax Case

After actor Wesley Snipes was convicted of three counts of misdemeanor offenses involving willful failure to file his income tax returns and sentenced to consecutive terms aggregating three years imprisonment, he, inter alia, moved for permission to interview jurors and for a new trial. Part of the basis for this motion was, inter alia, an e-mail that defense counsel received the evening after the United States Court of Appeals for the Eleventh Circuit rejected Snipes' appeal of his conviction. This e-mail, which came from one of the jurors who heard Snipes' case stated,

I served on the jury in Ocala that found him guilty on 3 counts of failing to file taxes. It was a deal that had to be made because of certain jurors that had already presumed he was guilty before the trail [sic] started and we only found this out in the last few days of deliberation. We thought we were making the right deal because we did not think he would go to jail for not filing taxes. There were 3 on the jury that felt this way and told us he was guilty before they even heard the first piece of evidence going against what the judge had said. If I can be of any help feel free to call me at

In rejecting Snipes' motion, the United States District Court for the Middle District of Florida found in United States v. Snipes, 2010 WL 4674368 (M.D.Fla. 2010), that "further pursuit of the issue is clearly foreclosed by 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.

I disagree. 

In rejecting Snipes' motion, the United States District Court for the Middle District of Florida held that:

Here, a juror has alleged that other jurors expressed, during deliberations, a presumption of guilt formed before trial. If true, maintenance of that state of mind would obviously be contrary to the Court's repeated instructions and should have been disclosed during voir dire, but it does not amount to an extraneous influence. The Eleventh Circuit decision in United States v. Venske, supra, is almost squarely on point in demonstrating that the claim made here is not a species of "outside influence." There, an affidavit was offered that, among other alleged misconduct, one of the jurors "knew from the first day of trial that the [Defendants] were guilty."...The court held that this statement was "excluded by Fed.R.Evid. 606(b) because [it involves] the jury's deliberative process and the mental impressions of [the] juror...", not extrinsic influence....

It follows that the Court cannot consider the emails of the jurors-indeed, they could not be considered even if they were proffered under oath in affidavit form. And, because they cannot be considered, there is no basis for conducting any interviews of any members of the jury about their deliberations or their voir dire responses and no reason to conduct an evidentiary hearing. By the same token, there is no basis for granting a new trial on the ground of juror misconduct.

Here's where I disagree. The Supreme Court of North Dakota in State v. Hidanovic, 747 N.W.2d 463, 474 (N.D. 2008), noted that "[c]ourts have universally held that provisions similar to N.D.R.Ev. 606(b)...do not preclude evidence to show a juror lied during voir dire." Now, I'm not sure whether the court was quite correct that courts categorically had reached this conclusion, and at least one court since Hidanovic has reached the opposite conclusion (see here). That said, I have done extensive research into the subject and found that the court in Hidanovic was basically correct: Almost all courts addressing the issue have held that jurors can testify about statements made during jury deliberations, not to impeach the validity of verdicts, but to prove that jurors lied during voir dire (which can lead to verdicts being overturned).

And here's where the Snipes case differs from cases like the Venske case cited by the United States District Court for the Middle District of Florida. In Snipes, Snipes' argument was that jurors lied during voir dire when they said that they could fairly determine his guilt or innocence. In Venske, the argument was that jurors decided that the defendants were guilty after the first day of trial, not before they were selected. Thus, the argument was not that they lied during voir dire. Thus, I think that Snipes has good frounds for an appeal. We'll see if the Eleventh Circuit agrees.

-CM 

Of Interest: Amendment To Federal Rule Of Evidence 804(b)(3) Becomes Law

Today, the recent amendment to Federal Rule of Evidence 804(b)(3) finally took effect. Previously, Rule 804(b)(3) provided an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

After the amendment, Federal Rule of Evidence 804(b)(3) now provides an exception to the rule against hearsay for 

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

In other words, previously only criminal defendants had to prove sufficient corroborating circumstances to introduce statements exposing declarants to criminal liability (usually confessions by alternate suspects). Now, the same burden also falls on prosecutors if, for instance, they are trying to introduce statements exposing declarants to criminal liability (e.g., statements by people who allegedly helped defendants commit the crime charged).

-CM 

Unspecified Error: Court Of Appeals Of Minnesota Notes Problems With Unspecified Conviction Impeachment

Like its federal counterpart, Minnesota Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect....

And, one of the factors that courts use to determine whether a conviction's probative value outweighs its prejucial effect is to look at how similar the prior conviction is to the crime charged (the greater the similarity, the greater the reason for not permitting use of the crime to impeach). But what if a court tries to reduce the prejudice of a similar prior conviction by ordering the prosecution to refer to the conviction only as a "felony" conviction, without identifying the underlying offense? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in State v. Hutchinson, 2010 WL 4825035 (Minn.App. 2010).

In Hutchinson, Emmett Hutchinson was convicted of possession of a firearm by an ineligible person and fifth-degree controlled-substance possession. After he was convicted, he appealed, claiming, inter alia, that the trial court erred by allowing the prosecution to impeach him with evidence of his two prior felony controlled-substance convictions. Specifically, he claimed that the trial court erred by ordering the prosecution to refer to the priors only as "felony" convictions.

The Court of Appeals of Minnesota agreed, finding that, in State v. Utter, 773 N.W.2d 127 (Minn.App. 2009), 

"[t]he question before [the court] on appeal [was] whether the probative value of admitting evidence of an unspecified prior felony conviction outweighs its prejudicial effect so that the evidence is admissible under rule 609(a)(1)."...This court answered the question in the negative, holding that "the district court abused its discretion in admitting evidence of appellant's unspecified prior conviction."...The court reasoned that "[b]y shielding the jury from the nature of appellant's prior conviction, the district court allowed the jury to speculate that the prior crime had much greater impeachment value than it may actually have had."...Based on this precedent, the district court here abused its discretion by allowing the state to impeach Hutchinson with evidence of two unspecified felony convictions.

Nonetheless, the court still affirmed based upon its finding that this error by the district court was harmless.

-CM

Say Anything?: Jeopardy Question About New Miranda Opinion Gets It Almost Completely Correct

Last night's episode of Jeopardy! featured the category "A Murder Investigation," with The Closer's Kyra Sedgwick reading the clues. The $1000 clue in the category was:

Getting confessions, Brenda's specialty, will be easier now that the Supreme Court has ruled that any response to interrogation means you've waived your rights under this 1966 decision

And the Question/Answer was Miranda v. Arizona, 384 U.S. 436 (1966). But what was the Supreme Court ruling referenced in the clue, and is it really true that any response to interrogation means that a suspect has waived his Miranda rights?

The opinion referenced in the clue is the Supreme Court's recent opinion in Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). In Thompkins, Van Chester Thompkins was arrested in connection with a mall shooting in Michigan, and Detective Helgert presented him with the following form derived from Miranda:

NOTIFICATION OF CONSTITUTIONAL RIGHTS AND STATEMENT

1. You have the right to remain silent.

2. Anything you say can and will be used against you in a court of law.

3. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions.

4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.

5. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” Brief for Petitioner 60 (some capitalization omitted).

At the detective's behest, Thompkins read the fifth warning out loud to ensure that Thompkins could read (English) and then read the other four Miranda warnings out loud and asked Thompkins to sign the form to demonstrate that he understood his rights, "but Thompkins declined to sign the form." It is unclear whether Thompkins later verbally confirmed that he understood the rights listed on the form, but it is clear that officers then began an interrogation of him.

At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney....Thompkins was "[l]argely" silent during the interrogation, which lasted about three hours....He did give a few limited verbal responses, however, such as "yeah," "no," or "I don't know." And on occasion he communicated by nodding his head....Thompkins also said that he "didn't want a peppermint" that was offered to him by the police and that the chair he was "sitting in was hard."...

About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, "Do you believe in God?"...Thompkins made eye contact with Helgert and said "Yes," as his eyes "well[ed] up with tears."...Helgert asked, "Do you pray to God?" Thompkins said "Yes."...Helgert asked, "Do you pray to God to forgive you for shooting that boy down?"...Thompkins answered "Yes" and looked away....Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later....

At trial, Thompkins was convicted after his statements during this interrogation were presented into evidence, and he appealed, claiming, inter alia, that

(1) he “invoke[d] his privilege” to remain silent by not saying anything for a sufficient period of time, so the interrogation should have “cease[d]” before he made his inculpatory statements; and

(2) he did not waive his right to remain silent.

His appeal eventually reached the United States Supreme Court, which rejected his first argument, finding that "an accused who wants to invoke his or her right to remain silent to do so unambiguously." In other words, a suspect must affirmatively and unambiguously invoke his right to remain silent, and merely remaining silent (i.e., mere silence) does not invoke the right to remain silent.

And, in rejecting Thompkins' second argument, the Court concluded that a waiver of the right to remain silent does not have to be explicit; instead, "[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent."

So, Jeopardy! almost got it completely right. Why do I say almost? Well, according to the Court,

If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate "a valid waiver" of Miranda rights....The prosecution must make the additional showing that the accused understood these rights.

-CM

A Bit Presumptuous: Sixth Circuit Finds Undisclosed 15 Year Old Convictions Didn't Violate Brady

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. But is evidence of prior convictions of a "jailhouse snitch" material for Brady purposes if those convictions were more than ten years old? According to the recent opinion of the Sixth Circuit in Brooks v. Tennessee, 2010 WL 4721099 (6th Cir. 2010), the answer is "no."

In Brooks, Donald Gene Brooks was convicted of first-degree felony murder, especially aggravated robbery, theft of property valued over $1,000, and setting fire to personal property. At Brooks' trial,

Michael Wayne Nelson, a convicted felon then serving time in prison, testified that he and Brooks shared a cell in the Montgomery County Jail on June 7, 1996. Nelson stated that Brooks confessed his guilt to Nelson. Brooks provided Nelson with details of the crime....He also told Nelson that the only evidence against Brooks was his companion at the time of the crime, and that he wished that he had killed his companion as well.

Nelson admitted during his direct examination that he had prior convictions for larceny from a person, grand larceny, and escape. He also acknowledged that he was facing breach-of-trust charges at the time of his testimony for failing to return to the Nashville Community Service Center after having been placed on parole.

The prosecution, however, did not disclose to Brooks, inter alia, that Nelson had 15 year-old convictions for perjury and embezzlement. After he was convicted, Brooks filed a petition for federal habeas corpus relief, claiming, inter alia, that the prosecution failed to timely disclose material evidence, including evidence of these prior convictions. In denying this portion of the petition, the Sixth Circuit found that

under Tennessee evidentiary law, Nelson's convictions for perjury and forgery were presumptively inadmissible due to the fact that they were over 15-years old at the time of Brooks's August 1996 trial. See Tenn. R. Evid. 609(b). We therefore conclude that, although this issue is uncomfortably close to the constitutional line, the undisclosed evidence was not material under Brady.

Technically, the Sixth Circuit was correct because Tennessee Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

But why stop the analysis there? Who cares whether the evidence of these convictions was presumptively admissible? Even assuming that Brady only covers admissible evidence, the relevant question that the Sixth Circuit should have asked was: Would evidence of these convictions have been admissible? And I think that at least with regard to the perjury conviction, the answer should have been "yes." Indeed, back in July, I posted an entry about an opinion of the Court of Criminal Appeals of Tennessee which found that a perjury conviction that was more than 10 years old was admissible under Rule 609(b) based upon its high probative value.

-CM

Honorable Discharge: Supreme Court Of Maine Debates When A Jury is Discharged For Jury Impeachment Purposes

Like its federal counterpart, Maine 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 juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning any 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.

As the Supreme Court of Maine noted in its recent opinion in State v. Hurd, 2010 WL 4608732 (Me. 2010), this Rule precludes a juror from impeaching a verdict, except under limited circumstances, once the court has taken the verdict and discharged the jury. So, when exactly is the jury discharged? That was the question that split the court in Hurd. 

In Hurd,

Ryan Hurd, Chad Bernier, and their foreman, Terry "TJ" Richardson, were working together on a construction project....After work..., the three men...had a cookout behind their motel and began drinking beer and hard liquor. When they ran out of liquor, Hurd drove them in his car...to Farmington. There they bought some beer and then went to a bar.

At the bar, all three men appeared intoxicated, though to some observers in the bar, Hurd appeared the most intoxicated. As the men were getting ready to leave the bar, a patron overheard them decide that Hurd would drive. However, no one saw who was actually driving when the car left the parking lot, and one or more bar patrons had told Richardson that he should drive because Hurd was not "good enough to drive."

As the driver was attempting to return to Kingfield, speeding in excess of ninety miles per hour, he lost control of the car in New Vineyard. The car left the road; hit a utility pole on the driver's side near the steering column, breaking the pole off; hit a tree stump; and came to rest on its roof.

Rescuers arriving at the scene found Richardson deceased on the driver's side of the car. Bernier, badly injured, was in the back seat. Hurd was apparently ejected from the vehicle and walked to a nearby house from where the owner called 911, triggering the emergency response.

In the hours and days following the accident, Hurd, and later Bernier, gave several conflicting statements as to who was driving the vehicle at the time of the accident.

Ryan Hurd was charged with one count of manslaughter, one count of OUI (Class C), and another count of OUI (Class D), which was later dismissed. At trial, the court advised the jury that a person may commit aggravated OUI as a principal or as an accomplice and instructed the jury that if it concluded that the State had failed to prove all elements of aggravated OUI, the jury must then consider if the State had proved Hurd's guilt for aggravated OUI as an accomplice (The theory on accomplice liability was that Hurd had been driving his car when the men left the bar and then switched seats with Richardson, aiding Richardson in the commission of the crime of aggravated OUI).

At the end of trial,

As to Count I, manslaughter, the foreperson reported a verdict of "not guilty." The clerk then asked the jury for its verdict with respect to Count II of the indictment, the count of aggravated OUI. The foreperson replied, "not guilty."...In response to a question by the clerk, the jury acknowledged that these were its verdicts. The court then thanked the jurors for their service, expressed regret that at points the trial had been interrupted, and discharged them from any further obligation to serve as jurors for five years. The court later reported on the record that the jurors had appeared confused when they were discharged, but that the court believed at the time that the jurors were reacting, perhaps in fear, to the emotional response in the courtroom.

The jurors left the courtroom and returned to the jury room. Within a minute or two, a judicial marshal reported to the court that the jury needed to speak to the court. The court then entered the jury room and spoke very briefly to the jury. Shortly thereafter, the jury stated in writing that it "understood there to be 3 charges and wish to speak to that as well." Over Hurd's objection, the court wrote a note back to the jury, asking, "What were the 3 charges you voted on?" The jury replied, "1. Manslaughter 2. Aggravated OUI 3. Accomplice liability." The court understood that to mean that the jury had voted on accomplice liability as though it were a separate count.

At the State's suggestion, and over Hurd's objection, the court submitted a special verdict form to the jury, asking it to "return to the jury room for further deliberations" to answer specifically whether the jury found Hurd guilty or not guilty of "aggravated operating under the influence" and whether it found Hurd guilty or not guilty of “aggravated operating under the influence-accomplice liability.” The court told the jury that it would "wait for [its] further deliberations and [its] verdict in written form on Count II."

The jury retired for just under nine minutes. The jury stated on the verdict form, which was read in open court, that it found Hurd not guilty of aggravated operating under the influence, but that it found Hurd guilty of "aggravated operating under the influence-accomplice liability." The jury was again discharged. The court entered a judgment of conviction on the count of aggravated OUI.

Hurd thereafter moved for entry of the jury's original verdict of not guilty on the count of aggravated OUI, claiming that the jury should not have been allowed to impeach its verdict after it was discharged. The Supreme Court of Maine agreed, finding that Maine Rule of Evidence 606(b) precludes jurors from impeaching their verdicts after they have been discharged and that what transpired at trial violated this Rule.

In a dissenting opinion, Justice Jabar disagreed, finding that the jury had not been "discharged" at the time the jury found Hurd guilty. According to Justice Jabar, a  

discharge has not occurred where the jury (1) continues to function as an undispersed unit; (2) is not subject to any outside pressures, communications, or influences; and (3) remains under the control of the court.

And, according to Justice Jabar, "[a]lthough the authority is not uniform, this approach has significant support in other jurisdictions."

-CM