EvidenceProf Blog

Upon Request: D.C. Court Of Appeals Notes Request Required For Rule 615 Sequestration

Federal Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

D.C. does not have codified rules of evidence, but it has adopted Rule 615 in its case law. And, as the language of Rule 615 and the recent opinion of the D.C. Court of Appeals in Marshall v. United States, 2011 WL 1044594 (D.C. 2011) (Download Marshall), make clear Rule 615 is not self-executing but instead requires the request of a party.

In Marshall, Bruce E. Marshall was convicted of aggravated assault while armed, mayhem while armed, and related offenses. After he was convicted, Marshall appealed, claiming, inter alia, that two witnesses for the prosecution were present in the courtroom during a pretrial hearing at which a detective testified about the case; he argued that the prosecutor representing the government at the pretrial hearing should have recognized the two men as government witnesses and taken steps to keep them out of the courtroom.

The D.C. Court of Appeals found that Marshall's argument was governed by Federal Rule of Evidence 615. And, according to the court, "[t]he rule on witnesses...is not self-executing. The federal courts have consistently interpreted Rule 615 of the Federal Rules of Evidence to require a party to request the sequestration of witnesses 'in order to claim any protection' from the rule." The court thereafter explained the rationale for this requirement, noting that

Particularly in a busy urban court system like ours, in which trial courtrooms are often filled with people unfamiliar to the presiding judge, the parties are in a far superior position to know whether anyone present in the courtroom is a potential witness in the case and to bring the issue to the judge's attention. Indeed, only through the entry of an order invoking the rule on witnesses can a trial judge exercise his or her discretion to set the specific contours of the rule as necessary to effectuate its purpose in light of the circumstances presented in a particular case. The rule on witnesses thus is in effect only if the trial court, acting on its own or at the request of a party, has affirmatively invoked the rule.

Therefore, because Marshall did not request sequestration, his appeal was without merit.

-CM

 

The Truth Of The Matter: Court Of Appeals Of Ohio Precludes Declarant Impeachment Under Rule 806

Like its federal counterpart, Ohio Rule of Evidence 806(A) provides that

When a hearsay statement, or a statement defined in Evid.R. 801(D)(2), (c), (d), or (e), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence that would be admissible for those purposes if declarant had testified as a witness.

As Rule 806 and the recent opinion of the Court of Appeals of Ohio, Tenth District, in Columbus v. Montgomery, 2011 WL 983080 (Ohio App. 10 Dist. 2011), make clear, however, it only allows for the impeachment of a hearsay declarant, meaning that a party cannot impeach the credibility of a declarant whose statement is not being offered at trial to prove the truth of the matter asserted.

In Montgomery, Cloris Montgomery was convicted of obstructing official business. The business that Montgomery allegedly obstructed was the police department's investigation into alleged acts of child abuse. The police department began investigating those acts based upon statements made by Cradecia Williams, who did not testify at Montgomery's trial. A police officer did, however, testify to Williams' statements.

After she was convicted, Montgomery appealed, claiming, inter alia, that the trial court erred by precluding her from impeaching Williams pursuant to Ohio Rule of Evidence 806(A) through her prior conviction for forgery. The Court of Appeals of Ohio, Tenth District, disagreed, concluding that Williams' statements were not introduced to prove the truth of the matter asserted but instead to explain an officer's conduct while investigating a crime. Therefore, WIlliams was not a hearsay declarant and could not have been impeached under Ohio Rule of Evidence 806(A).

-CM

Article Of Interest: Marc McAllister's The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence

A defendant is on trial. A prospective eyewitness does not want to testify against the defendant for fear of reprisal. But the witness might be willing to testify under one condition: He be allowed to testify while wearing a disguise. Should this witness be able to wear sunglasses, a hat, a wig, and/or some other disguise while on the witness stand, or would such a disguise violate the defendant's rights under the Confrontation Clause? Until 2004, this question was answered pursuant to the Supreme Court's opinion in Maryland v. Craig, 497 U.S. 836 (1990), which set forth a two-part test to govern potential exceptions to the Clause's face-to-face requirement. According to Craig, "a physical, face-to-face confrontation [may be dispensed with] at trial [1] only where denial of such confrontation is necessary to further an important public policy and [2] only where the reliability of the testimony is otherwise assured."

In Crawford v. Washington, 541 U.S. 36 (2004), however, the Supreme Court condemned judicial reliability assessments, concluding that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." So, did Crawford kill Craig? And, if it did, does that mean that courts can no longer allow witnesses to testify in disguise based upon judicial reliability assessments?

According to the recent article, The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence, 58 Drake L. Rev. 481 (2010), by Marc C. McAllister, an Assistant Professor at the Florida Coastal School of Law, the answer is "not necessarily." You see, in Crawford, the court overruled the "adequate indicia of reliability" test from Ohio v. Roberts, 448 U.S. 56 (1980), noting in the process that

The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.

Professor McAllister's proposal is that the prosecution should be able to present the testimony of disguised witnesses if the defendant caused the prospective witness' fear of testifying without one. According to Professor McAllister,

Consistent with recent Confrontation Clause jurisprudence, the defendant should forfeit his confrontation right in...cases...in which the prosecution presents sufficient evidence to establish a legitimate fear of the defendant. Under this proposal, the defendant's right would be forfeited not because of some asserted governmental necessity, but rather because the defendant's intentional misconduct created the claimed fear. This proposal would not require a Craig-based judicial exception, but would instead be premised upon the common law forfeiture-by-wrongdoing doctrine. By abandoning Craig and operating entirely within the Crawford framework, this proposal would be fully consistent with Crawford and its progeny.

And, according to Professor McAllister,

In many cases, my proposal would be advantageous to both prosecution and defense. From the prosecution's view, permitting the witness to testify in disguise is a better alternative than losing the evidence entirely. From the defense perspective, permitting the witness to testify in minimal disguise is a better alternative than a complete forfeiture of the confrontation right via admission of the witness's out-of-court testimonial statements in the absence of any confrontation, as authorized by Giles. Under this proposal, rather than the defendant completely forfeiting his confrontation right, the witness would remain subject to contemporaneous cross-examination, albeit in partial disguise.

I think that Professor McAllister's proposal makes a great deal of sense and highly recommend the article to readers (I also think that the proposal supports the argument in my recent article, Avoiding a Confrontation?, that the Bruton doctrine was not restricted by Crawford because Bruton is not based upon a judicial reliability assessment). I asked Professor McAllister what led him to write the article, and he responded:

I began researching this particular issue back in 2006, and the culmination of that research was an initial article dealing with the use of two-way videoconference testimony in criminal trials.  As I began thinking and writing about that particular issue, I realized that the right of confrontation, as reflected in the Sixth Amendment's Confrontation Clause, is actually a multi-layered and complex issue that requires more careful analysis of each particular, underlying layer of analysis.  When I returned to this issue in 2009, my goal was to write an article that began with a particular legal issue as the springboard to a discussion of the confrontation right's deeper layers, and to show how that particular issue is necessarily impacted by the multiple layers of analysis.  I chose the disguised witness issue as my springboard to these deeper layers.  In my view, we cannot fully understand the confrontation implications of a particular form of testimony until we first settle upon the true meaning of "confrontation" itself.  Thus, my goal in writing the disguised witness article was to uncover each layer of confrontation analysis, then show how the analysis at each layer impacts the layers above.  In the case of the disguised witness, there is the initial layer of whether wearing a disguise in court sacrifices the underlying confrontation values of testimony under oath, observation of demeanor, cross-examination, and physical face-to-face confrontation between the accuser and the accused (i.e., the essence of the Craig test).  However, at a deeper layer, there is the notion of whether the confrontation right is only concerned with ensuring cross-examination, or whether it necessarily requires a literal "face-to-face" meeting between accuser and accused.  Further, if the confrontation right is only concerned with ensuring cross-examination, does that requirement embody the idea of "effective" cross-examination?  If so,  what exactly makes cross-examination "effective?"  In my article, I argued that cross-examination alone is not enough, and that some critical aspect of confrontation is lost when we remove the element of a literal "face-to-face" meeting between accuser and accused.  In this portion of the article, I sought to demonstrate that the Framers' understanding of confrontation was more complex than the understanding of confrontation espoused by such influential writers as Wigmore.  At another level, there is the idea, expressed in Crawford, that confrontation is a procedural rather than a substantive right -- i.e., that the right is more about ensuring the procedure of confrontation, rather than ensuring the reliability of the resulting evidence.  Even if we assume the procedural view is correct, we still must determine the essence of the confrontation right (i.e., what exactly makes the procedure of confrontation "effective"), which I believe requires both an opportunity for cross-examination and a physical, "face-to-face" meeting.  Once these principles of confrontation are established, we can then return to the initial question of whether a witness who testifies in disguise runs afoul of a defendant's right to confront that witness.  Again, I believe the matter is far more complex than it first appears.  Moreover, much like the ongoing debate in Fourth Amendment analysis between the "reasonableness" view and the "warrant requirement" view, I believe we cannot arrive at the "correct" answer to any confrontation issue until we first resolve the very essence of "confrontation" itself.  I believe I was able to capture these principles in my disguised witness article.

He also provided me with the following abstract of the article:

In 2004, the United States Supreme Court established a new Confrontation Clause jurisprudence in Crawford v. Washington, a ruling which foreclosed the use of much previously admissible out-of-court statements and which generated a vast response from courts and commentators.  While much has been written regarding Crawford's effect upon out-of-court testimonial statements, few commentators have addressed Crawford's impact upon in-court testimony.  This article is among the first to address this issue.

This article considers Crawford's impact upon Maryland v. Craig, the case which generally governs in-court testimony confrontation challenges, by specifically examining the constitutionality of testifying in disguise.  Surprisingly, this issue has never been addressed by the Supreme Court.  The few lower court opinions considering this issue have routinely applied the Craig test; that test, however, employs a reliability-based framework reminiscent of the test overruled by Crawford, and this article contends that the Craig test would similarly offend the current Court. 

With Craig's constitutionality in doubt, this article considers what test might replace Craig.  The ultimate resolution of this issue would depend upon the importance a court attaches to the two guarantees underlying the confrontation right: the right to confront adverse witnesses face-to-face, and the right to cross-examine such witnesses.  Over time, judges and historians have equated the right of "confrontation" with the literal right to meet one's accusers "face-to-face," while others have deemed the right synonymous with the opportunity for cross-examination.  In 1988, for example, the Supreme Court described "the irreducible literal meaning of the Clause" as "[the] right to meet [trial witnesses] face to face."  Just two years later, however, the Court retreated from this view and declared that "face-to-face confrontation . . . is not the sine qua non of the confrontation right."  More recently, the Crawford ruling appeared to solidify cross-examination as the Clause's primary guarantee. 

After examining the Confrontation Clause's text, the right's common law roots and underlying purposes, and the Supreme Court's many pronouncements on this issue, this article concludes that the Clause's face-to-face requirement is an indispensable aspect of confrontation.  Following the principles of Crawford, today's Court would thus replace Craig's reliability-based analysis with a more literal confrontation right: one that ensures both cross-examination and face-to-face confrontation. 

With these principles in mind, this article revisits the disguised witness issue.  While I argue that Crawford's interpretative principles would prohibit the wearing of nearly any disguise, I conclude by advocating an exception to this general rule.  Under my proposed exception, the common law's forfeiture-by-wrongdoing doctrine, which the Court recently applied to out-of-court statements, should be extended to courtroom manner-of-testimony issues as well, and should authorize the wearing of limited disguises where the witness' genuine safety concerns arise from the defendant's deliberate acts of intimidation.

-CM

 

What's The Definition Of Prejudice?: Supreme Court Of Mississippi Upholds Verdict Despite Jurors Consulting Dictionary

A defendant is charged with felony child abuse under Mississippi Code Section 97-5-39(2)(a), which states:

Any person who shall intentionally (I) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm shall be guilty of felony child abuse of a child and, upon conviction, shall be sentenced to imprisonment in the custody of the Department of Corrections for life or such lesser term of imprisonment as the court may determine, but not less than ten (10) years....

The defendant is not charged with child neglect, and the jury does not receive any instructions on child neglect. During deliberations, the jury sends a note to the trial judge with the following question: "Is negligence the same thing as abuse?" The trial court responds by sending a handwritten note to the jury that it "must rely on the Court's instructions on the law already given to you. Please continue your deliberations." After receiving the trial court's response, the jury continues deliberating for approximately half an hour and then returns a guilty verdict. After the verdict, a juror allegedly approaches the defendant's boyfriend and tells him that he and another juror had been confused about the definition of "neglect," so they had looked up the definition and had determined that "abuse" and "neglect" meant the same thing.  Based upon this determination, they allegedly determined that the defendant was guilty of child abuse. Is the defendant entitled to a new trial? According to the recent opinion of the Supreme Court of Mississippi in Rutland v. State, 2011 WL 907116 (Miss. 2011), the answer is "no." I disagree.

In Rutland, the facts were as stated above. The Supreme Court of Mississippi noted that the issue was governed by Mississippi 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 assent to or dissent from the verdict or indictment or concerning the 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 for these purposes.

Because the dictionary constituted extraneous prejudicial information, the court concluded that there could be jury impeachment, but only on the issue of whether the jurors consulted the dictionary and not on the issue of what effect that consultation had on their deliberations. Instead, the court held that

When the trial court is presented with an allegation of juror misconduct, the court must determine what communication was made and what it contained....Once this determination is made, the trial court must decide whether it is reasonably possible that the improper communication altered the jury's verdict.

Applying this analysis, the Supreme Court of Mississippi agreed with the trial court

that standard dictionary definitions for the words “neglect” and “abuse” are not the type of improper extraneous information that have been found to invalidate jury verdicts in our case law. There is nothing inherently prejudicial in the definitions or as applied to this case. The dictionary definition of the two words is clearly something within the collective intelligence and common knowledge of any jury.

Really? There was nothing prejudicial in the definitions as applied in Rutland's case? Rutland was charged with an intentional child abuse and not child neglect. We know that the jury thought that abuse could mean the same thing as negligence. Assuming that the jury consulted the dictionary for definitions of abuse and neglect, it seems clear to me that it was reasonably possible that this consultation could have altered the jury's verdict, with the jury possibly finding Rutland guilty based upon behavior that it perceived as negligent rather than intentional.

-CM

Avoiding A Confrontation, Take 4: EDVA Opinion Makes Clear That Redacted Co-Participant Confessions Are Inadmissible At Solo Trials

Last week, I posted my new article, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine. The article argues that courts have erred in finding that nontestimonial hearsay is beyond the scope of the Bruton doctrine in the wake of Crawford v. Washington, 541 U.S. 36 (2004), because Crawford is a test of Constitutional reliability while the Bruton doctrine is a test of Constitutional harmfulness. The converse of this is that even testimonial hearsay is admissible under the Bruton doctrine as long as it is not sufficiently harmful. Crawford held that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Meanwhile, under the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a nontestifying co-defendant's confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence.

Pursuant to Richardson v. Marsh, 481 U.S. 200 (1987), however, co-defendant confessions that are redacted to remove any reference to other defendants are admissible despite the Bruton doctrine because they are not sufficiently harmful. And, as I note in my article, the Richardson rule applies even to testimonial co-defendant confessions. So, if Co-Defendant confesses to Police Officer, "Defendant and I robbed the bank," and Co-Defendant does not testify at his joint jury trial with Defendant, Police Officer could testify that Co-Defendant confessed, "I robbed the bank." Obviously, Co-Defendant's confession is testimonial, and ordinarily we would require confrontation as "the only indicium of reliability sufficient to satisfy constitutional demands...." The Bruton doctrine, however, does not care about reliability, which is why Co-Defendant's redacted confession would be admissible. 

But what if Co-Defendant and Defendant are tried separately? Or what if Co-Defendant dies before the joint trial, meaning that Defendant is tried by himself? Would the admission of Co-Defendant's redacted confession violate Crawford and the Confrontation Clause?  I didn't address such a case in my article, but as the opinion of the United States District Court for the Eastern District of Virginia in United States v. Jordan, 357 F.Supp.2d 889 (E.D.Va. 2005), makes clear, the answer is "yes." Why? Crawford is a test of Constitutional reliability, not a test of Constitutional harmfulness.

In Jordan, the facts were as stated above, with Peter Jordan being charged with murder at a solo trial, and the prosecution trying to admit a redacted statement made by an alleged co-participant, Octavia Brown. According to the prosecution, a confession redacted to comply with Richardson should be admissible to the same extent at a solo trial as it is at a joint trial.  The Eastern District of Virginia disagreed, finding that

In this case, Brown's statement is one that the Confrontation Clause plainly meant to exclude. "The Bruton line of cases deals with situations in which the confession of one defendant is offered at a joint trial where the statement is redacted to omit any explicit reference to the co-defendant and the jury is instructed to consider the statement only against the declarant."...The judicial remedy of redaction was fashioned to fulfill a specific purpose, namely to balance a defendant's Confrontation Clause rights with the judicial interest in trying co-defendants jointly. The Sixth Amendment poses no barrier to the admissibility of a confession against the defendant who made the incriminating statement, when redaction, coupled with a limiting instruction from the court, protects the Confrontation Clause rights of a co-defendant at a joint trial. That is not the case here.

Conversely, the court held that

The Supreme Court has repeatedly stated that statements of non-testifying accomplices, like Brown's, that implicate defendants are presumptively unreliable and their admission violates the Confrontation Clause....In Crawford, the Supreme Court made clear that the only way to assure reliability of such statements is through the crucible of cross-examination...Thus, the redaction remedy adopted in Richardson is inapplicable to Brown's statement, and its admissibility must be analyzed utilizing the Crawford standard that replaced the rule articulated in Ohio v. Roberts....In this Court's view, Brown's statement was testimonial and is inadmissible during the guilt phase of trial.

In other words, Crawford and Bruton address 2 entirely different questions. Crawford addresses the question of whether testimonial hearsay by a nontestifying declarant can be admitted against a defendant, and its answer is that the only way to ensure the reliability of such hearsay is through the crucible of cross-examination.  Meanwhile, the Bruton doctrine addresses the entirely different question of whether a limiting instruction cures the harm/prejudice caused to other defendants by admitting the facially incriminatory confession of a co-defendant at a joint jury trial, and its answer is that the only way to cure the harm/prejudice is to redact the confession to remove references to the other defendants.

And how do we know that Crawford and Bruton address 2 entirely different questions? We know because the Crawford Court told us. After finding that all of its prior Confrontation Clause cases (of a certain variety) were consistent with the test of Constitutional reliability that it was (re)creating, the Crawford Court noted that "Our only precedent on interlocking confessions had addressed the entirely different question whether a limiting instruction cured prejudice to codefendants from admitting a defendant's own confession against him in a joint trial" and cited two Bruton doctrine cases. 

-CM

Not My Recollection: Court Of Appeals Of Ohio Finds Writing Cannot Be Read Out Loud Under Rule 612

Like its federal counterpart, Ohio Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

And, like its federal counterpart, Ohio Rule of Evidence 612 allows an attorney to refresh the recollection of a forgetful witness with a writing. So, let's say that a witness made a statement to the police but then refuses to attest to its accuracy while testifying at trial. Can the prosecution read portions of the statement out loud and ask the witness whether she made the statements recorded in the statement consistent with either Rule 612 or Rule 803(5)? According to the recent opinion of the Court of Appeals of Ohio, Ninth District, in State v. Martin, 2011 WL 899553 (Ohio App. 9 Dist. 2011), such a procedure is improper under Rule 612 and possibly improper (and I would argue definitely improper) under Rule 803(5).

In Martin, the facts were as stated above, with Thomas Martin, Jr. being the defendant charged with domestic violence and Heather Teeter being the alleged victim who refused to vouch for the accuracy of her statement. Instead, Teeter responded to each "question" by the prosecution with an answer similar to "[t]hat's what the statement says." The trial court allowed the prosecution to use the procedure layed out in the introduction, and this action formed the partial basis for Martin's appeal.

The Court of Appeals of Ohio found that this procedure clearly did not constitute proper refreshing of recollection under Ohio Rule of Evidence 612 because "While '[a] party may refresh the recollection of a witness under Evid.R. 612 by showing him or her a prior statement[, ] * * * a party may not read the statement aloud, have the witness read it aloud, or otherwise place it before the jury.'" 

The court then found that even if the reading of the statement was improper under Ohio Rule of Evidence 803(5), any error in doing so was harmless. But the way I see it, reading the statement was clearly improper under Rule 803(5). Rule 803(5) requires that the proponent prove that the recorded recollection reflected the declarant's knowledge accurately. Here, Teeter clearly refused to claim that her recorded statement to police was accurate, meaning that it should have been inadmissible under Rule 803(5).

-CM

Talk About The Life In Massachusetts: Court Precludes Jury Impeachment On Jury Violence, Failure To Report Deadlock

On June 9, 2005, six days after the verdict, a juror sent a letter to the judge suggesting that she and possibly two other jurors had been pressured into convicting the defendant despite having a reasonable doubt concerning the defendant's guilt. According to the juror, other jurors “lean[ed] across the table into our faces and insist[ed] on yelling at us, screaming, swearing, and throwing books and pens just because we [saw] some things differently.” After the other two holdouts changed their minds, the juror claimed that she was subjected to “8 hours of constant interrogation,” with jurors “constantly yelling at me and swearing and pointing finger[s] in my face across the table and telling me that I am crazy.” The letter further alleged that some jurors had made up their minds “from day 1 without listening to anything that was presented,” that some jurors convinced or intimidated others to change their votes outside the jury room, and that the foreperson at one point refused to send the judge a note saying that the jury were deadlocked and instead insisted that they continue deliberating.

Is this grounds for jury impeachment? According to the recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Pytou Heang, 2011 WL 489926 (Mass. 2011), the answer is "no." Instead, "'[t]ension between jurors favoring guilt and those favoring acquittal is part and parcel of the internal decision-making process of jury deliberations." I disagree.

In Pytou Heang, the defendant was convicted of murder in the first degree on theories of deliberate premeditation and felony-murder, armed home invasion, and unlawfully carrying a firearm. After receiving the letter mentioned in the introduction to this post, 

The judge sent a copy of the letter to counsel...along with his own letter declaring that he did not believe any action should be taken because the juror's complaints in the letter did not allege an extraneous influence on the jury, did not "rise to the level of juror misconduct," and related to the jury's "internal decision making process." The defendant filed a motion to reconsider..., which was denied. The defendant subsequently filed a notice of appeal, preserving the issue for appeal. 

In addressing that appeal, the Supreme Judicial Court relied upon Massachusetts common law, which is similar to 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.

Applying this law, the court concluded that

None of the allegations in the letter constituted an extraneous influence on the jury or a claim of racial or ethnic bias. Instead, the letter detailed stresses that sometimes surface in the deliberative process required to get twelve individuals with differing views of the evidence to reach a unanimous verdict. "Tension between jurors favoring guilt and those favoring acquittal is part and parcel of the internal decision-making process of jury deliberations."... That these stresses and tensions may be keenly felt by some jurors does not automatically call into question a verdict....Likewise, the juror's claim that two of the other holdout jurors were "intimidat[ed]" into changing their votes outside the jury room by other jurors is not an extraneous influence.... The judge did not abuse his discretion in failing to make a postverdict inquiry of the juror.

I disagree. A certain amount of tension and verbal sparring is certainly part and parcel of jury deliberations. Throwing pens and books at dissenting jurors is not. And neither is refusing to send the judge a note saying that the jury were deadlocked and instead insisting that the jury continue deliberating. Now, I'm not saying that either of these latter two actions should automatically allow for jury impeachment and a new trial. Indeed, the court's opinion seems to indicate that the jury did eventually report to the judge that they were deadlocked, with the judge telling them to continue with deliberations, which resulted in the final verdict. But it seems to me that this is something that should have bee explored in a postverdicyt inquiry rather than merely dismissed out of hand.

Did the dissenting jurors eventually join the majority solely because they felt that the violence against them would escalate if they did not. Was the jury deadlock reported only after the dissenting jurors softened their position, allowing the judge to tell the jury to keep deliberating. The defendant in Pytou Heang was sentenced to two consecutive life sentences on his two murder convictions, and obviously there were serious problems with the jury deliberations. Maybe those problems did not necessitate a new trial, but I think that they deserved at least a little investigation.

-CM