EvidenceProf Blog

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

Sunday, October 23, 2011

How To Be Elusive: Colorado Court Of Appeals Finds Trial Court Erred In Granting New Trial Based On Jury Misconduct

Similar to its federal counterpartColorado 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 assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

So, let's say that a defendant is convicted of vehicular eluding. And let's say that several jurors had looked at or heard a dictionary definition of "elude" during deliberations. Can the defendant present juror affidavits concerning what happened, and will those affidavits be sufficient to award the defendant a new trial? Those were the questions addressed by the Colorado Court of Appeals, Division II, in its recent opinion in People v. Holt, 2011 WL 4837640 (Colo.App. 2011).

In Holt, the facts were as stated above, with the vehicular eluding statute in Colorado stating that

Any operator of a motor vehicle who the officer has reasonable grounds to believe has violated a state law or municipal ordinance, who has received a visual or audible signal such as a red light or a siren from a police officer driving a marked vehicle showing the same to be an official police, sheriff, or Colorado state patrol car directing the operator to bring the operator's vehicle to a stop, and who willfully increases his or her speed or extinguishes his or her lights in an attempt to elude such police officer, or willfully attempts in any other manner to elude the police officer, or does elude such police officer commits a class 2 misdemeanor traffic offense.

The trial court granted the defendant's motion for a new trial, but the Court of Appeals of Colorado later reversed. The Colorado Court of Appeals noted that "the trial court found that a member of the jury brought a dictionary definition of 'elud'” or 'eluding' into the jury room and shared it with several jurors." And, according to the court, "[a] juror's looking up of a dictionary definition of a crime of which the defendant has been charged is improper and affidavits concerning that fact are admissible under CRE 606(b)." 

But according to the court, the problem for the defendant was that

The affidavits d[id] not...disclose what definition the jurors considered, or whether the definition was inconsistent with the language of the vehicular eluding statute. Defendant bears the burden of proving that the extraneous information posed a reasonable possibility of prejudice to him...By failing to provide the content of the definition, defendant failed to meet his burden of proving prejudice. The trial court, therefore, erred by concluding that the definition presented to the jury was prejudicial and ordering a new trial based on that conclusion.

Indeed, the court noted that

At the hearing on the motion for a new trial, the prosecution presented two dictionary definitions of "elude" to the trial court, which indicate that eluding involves "skill" or "trickery." If the jury had viewed those definitions, it may have added those concepts as additional elements to be proven, increasing the prosecution's burden. See Wiser, 732 P.2d at 1143 (holding that the defendant was not prejudiced by the jury's exposure to the dictionary definition of "burglary" because the definition referenced theft, which was not an element the prosecution was required to prove).



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