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Univ. of South Carolina School of Law

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Sunday, January 30, 2011

Sleep Experts: Ninth Circuit Allows Expert Testimony Under Rule 703 Based Upon Alleged Juror Misconduct

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.

Meanwhile, Federal Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

So, let's say that a juror allegedly engages in misconduct during trial/deliberations. Obviously, jurors cannot testify about this misconduct after a verdict is entered in an attempt to impeach the verdict. But can these jurors tell an expert about this misconduct, with the expert then testifying that it is his opinion that the verdict was improperly reached? According to the recent opinion of the Ninth Circuit in Anderson v. Terhune, 2011 WL 148912 (9th Cir. 2011), the answer is "yes." I'm not sure that I agree.

In Terhune, Arthur Anderson was convicted in California state court of murdering two of his friends and attempting to murder a third person. After he was convicted, Anderson appealed, claiming, inter alia, that (1) that one juror's repeated sleep at trial violated his Sixth and Fourteenth Amendment rights; and (2) that trial counsel rendered ineffective assistance by conducting an inadequate investigation of that juror's sleep behavior.

After being unsuccessful at the state level, Anderson unsuccessfully sought habeas corpus relief in federal district court. Anderson then appealed to the Ninth Circuit, which noted that Anderson's juror affidavits and juror testimony about the juror's sleeping were inadmissible under Federal Rule of Evidence 606(b). The Court did, however, find that Anderson presented admissible evidence in the form of an 

expert report, which conclude[d] that it [wa]s "quite likely" that the juror ha[d] a sleeping disorder, that it [wa]s "probable that [the juror] was in fact asleep for brief periods of a few minutes at a time throughout the trial," and that the juror "would not be able to reliably estimate how much, if any, testimony he missed...." 

According to the court, "The expert report [wa]s based in part on the inadmissible juror evidence, but its conclusions are still admissible. See Fed.R.Evid. 703." Ultimately, however, the Ninth Circuit denied Anderson habeas relief because it presumed that the state trial court correctly presumed that sleep was not a “significant problem” for the juror in question during trial.

Now, frankly, I think that jurors should be able to testify about certain types of jury misconduct, such as jurors sleeping during trial/deliberations. But if courts apply Federal Rule of Evidence 606(b) to, inter alia, protect jurors from harassment by the losing party and preserve the finality of verdicts, I don't see how testimony such as the expert's testimony in Terhune should be admitted. Because, if it is, losing parties can harass jurors in an attempt to learn about juror misconduct so that they can have an expert testify pursuant to  Federal Rule of Evidence 703 that in his opinion the verdict was improperly reached.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/01/606b-sleeping-anderson-v-terhuneslip-copy-2011-wl-148912ca9-cal2011.html

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