EvidenceProf Blog

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

Friday, August 24, 2012

No One But The Bailiff: Is A Bailiff's Comment That The Defendant Fired The Best Criminal Attorney In Town Prejudicial?

Similar to its federal counterpartTexas 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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

So, let's say that jurors are standing in a courthouse hallway when one juror asks, "Why did [the defendant] hire these dummies [(i.e., defense counsel)]?" And let's say that the bailiff responded, "He had the best criminal attorney in the city and he fired him." Does the bailiff's statement provide the proper predicate for jury impeachment under Rule 606(b)? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Seaton v. State, 2012 WL 322677 (Tex.App.-San Antonio 2012), the answer is "no." I disagree.

In Seaton, the facts were as stated above, with the exchange occurring during deliberations in David Seaton's trial for manslaughter and aggravated assault by a public servant. After Seaton was convicted, he appealed, claiming, inter alia, that the bailiff improperly provided the jury with evidence that was not admitted during trial. The Court of Appeals of Texas, San Antonio, however, found that a juror's testimony on this exchange was inadmissible because "[n]eutral statements from the bailiff not directed to the jury's specific deliberations or verdict do not constitute an outside influence."

I agree with the general point made by the court, but I disagree with the court's application of the point in Seaton. Clearly, the bailiff's statement was not "neutral." Instead, it revealed that Seaton had the best criminal attorney in the city and then fired him for the attorney that the juror held in poor regard. Why? Was Cleary a difficult person? Was the best attorney unwilling to suborn perjury? Was the best attorney not willing to put forth certain arguments that he thought were meritless? If I were the juror hearing the bailiff's statement, any one of these or related thoughts might have entered my head.

Would any of these thoughts have caused me to change my verdict from not guilty to guilty? Probably not, but that's why we have the doctrine of harmless error (which the court found applied in the event that the juror's testimony was admissible). It certainly seems clear to me, however, that the bailiff's comment was not neutral, meaning that the juror's testimony should have been admitted under Rule 606(b).



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I think this is evidence aliunde - bailiff comments that should have been admitted under 606(b) for what it was worth.

Posted by: Rick Underwood | Aug 26, 2012 10:33:53 AM

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