EvidenceProf Blog

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

Monday, February 25, 2013

The Rule of Evidence That's Never Applied, Take 3: Former Jury Venireman as Witness?

As I noted last week, I have yet to find a single case in which a court has applied Federal Rule of Evidence 606(a), which provides that

A juror may not testify as a witness before the other jurors at the trial.If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

I did, however, post about two cases (here and here) in which courts applied the principles of Rule 606(a) to the proffered testimony of two former jurors. Now, courtesy of Ann Murphy, let's take a look at United States v. Kills Enemy, 3 F.3d 1201 (8th Cir. 1993), in which the prosecution called a former jury venireman at trial.

In Kills Enemy, Gerald Kills Enemy was convicted of possession of cocaine with intent to distribute. After he was convicted, Kills Enemy appealed, claiming, inter alia,

that the district court erred in permitting Amos American Horse to testify. American Horse had been a venireman, but was excused for cause when he stated that Kills Enemy was his friend and former neighbor. The government then contacted American Horse and called him as a witness.

Kills Enemy cited to Rule 606(a) and argued 

that it was error to permit American Horse to testify because he had served on the venire with persons who became the jurors in this case, and he may have become acquainted with them or otherwise made an impression, either favorable or unfavorable, on the jurors.

The Eighth Circuit disagreed, finding that

Rule 606 is not applicable to veniremen, as opposed to jurors, and does not require us to reverse. Nevertheless, we must express our concern about the government's actions in calling American Horse to the stand. Though we have nothing but speculation in this case about the possible effect on jurors in calling a former venireman to testify, we consider this a close case. In a case with a developed record with evidence of real harm, the result might well be different.



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