EvidenceProf Blog

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

Tuesday, April 26, 2011

Prior Consent: Court Of Appeals Of Arkansas Precludes Jury Impeachment Based On Juror's Preexisting Knowledge

SImilar to its federal counterpart, Arkansas 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 his or any other juror's mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions 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. 

Under Rule 606(b), it is clear that information that a juror discovers outside of the four walls of the courtroom (e.g., through surfing the 'net, visiting the crime scene, or reading the newspaper) after trial commences can constitute extraneous prejudicial information and form a proper predicate for jury impeachment. But what about information that a juror learned prior to trial in the ordinary scope of his life experiences and carries with him into the jury room? As the recent opinion of the Court of Appeals of Arkansas in Milner v. Luttrell, 2011 WL 1491461 (Ark.App. 2011), makes clear, such information is not extraneous prejudicial information and cannot form a proper predicate for jury impeachment.

In Luttrell, Patricia Milner
underwent a gastric-bypass operation in 1977. In the following years, she experienced problems with reflux and consulted Dr. Forest Miller. Dr. Miller referred her to Dr. Luttrell, who determined that Mrs. Milner needed a "revision" of her previous bypass. Surgery was scheduled for May 13, 1999, and Milner signed a pre-operative consent form describing the procedure as a "reversal gastric bypass and incisional hernia repair." According to Milner, she understood the term "reversal" to mean that she would be restored to her natural, pre-bypass condition. When Dr. Luttrell performed the surgery, however, he replaced the existing bypass with another bypass called a Roux-en-Y. Post-operatively, Milner experienced more gastrointestinal problems and had the Roux-en-Y reversed by another doctor.
Milner thereafter sued Dr. Luttrell for negligence in performing the Roux-enY bypass without her consent and in performing it incorrectly. At trial, the jury found Dr. Luttrell not liable. After trial, Milner's attorneys "submitted affidavits to the court stating that they had learned from an unnamed juror that two jurors on the panel worked for a physician and knew the standards for informed consent and making entries in medical records." The trial court found these affidavits inadmissible under Arkansas Rule of Evidence 606(b), and the Court of Appeals of Arkansas later agreed, finding that "[t]he issue of extraneous prejudicial information has arisen most frequently when jurors have visited an accident scene during trial and reported their observations to other jury members." 

But, according to the court, the case before it did

not involve a juror's foray outside the courthouse to gather extrinsic information. Rather, it involve[d] information that the juror learned prior to trial in the ordinary scope of her life experiences and carried with her into the jury room. In that regard, the present case is more akin to Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988). In Watkins, our supreme court held that a juror's remark to the panel about information she supposedly knew about the appellants' attorney did not constitute extraneous prejudicial information as envisioned by Rule 606(b). The court appreciated the appellants' concern about a juror's harboring a hidden bias or prejudice but held that the appellants' proffered evidence "is not included in the exception under Rule 606(b)...."
Moreover, the great weight of authority in other jurisdictions is that a juror's professional or vocational knowledge does not qualify as extraneous prejudicial information when brought into the jury room




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