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Univ. of South Carolina School of Law

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Friday, July 19, 2013

George Zimmerman, Juror B37 & Federal Rule of Evidence 606(b)

Similar to Federal Rule of Evidence 606(b)Section 90.607(2)(b) of the Florida Statutes states that

Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.

According to the Advisory Committee's Note to Federal Rule of Evidence 606(b)

The values sought to be promoted by excluding the evidence include freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. 

Here's my question today: In the 24/7 news cycle, including Anderson Cooper's interview with Juror B37 from the George Zimmerman trial and the 4 other jurors distancing themselves from Juror B37, is the anti-jury impeachment rule no longer necessary or more necessary than ever?

After Juror B37 discussed what happened during deliberations and her view of the case at length with Anderson Cooper, four other jurors released a six-sentence statement, which said, inter alia, that

"The opinions of Juror B37, expressed on the Anderson Cooper show were her own, and not in any way representative of the jurors listed below...." 

The statement, however, did not specify what parts of the other juror's comments they disagreed with.

So, let's look at the three rationales supporting Federal Rule of Evidence 606(b):

Freedon of Deliberation

Rule 606(b) is based, in part, on the concern that jurors will not be able to deliberate openly and honestly if they know that what they say can be aired like dirty laundry in open court. Is there, however, such a thing as freedom of deliberation when a juror like Juror B37 can appear on national TV in front of a large audience that only become larger as the interview is retweeted and Youtubed? And while it turns out that Juror B37 did not have a book deal, would anyone be surprised if she did?

Finality of Verdicts

As the Supreme Court noted in Tanner v. United States, 483 U.S. 107 (1987), "[a]llegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process." I would imagine that in the days before people lived their lives online, these allegations typically arose months or even years after the verdict has been rendered. Now, I would think that it is more commonplace for these allegations to come in the days, hours, or even minutes after the verdict. It is much quicker and easier for a juror to send an e-mail to the attorneys, the judge, or the media soon after a verdict than it was to send a traditional letter years ago. 

Protection of Jurors

In their statement, the 4 other jurors made a request for privacy. Nowadays, attorneys have more information about jurors both before and after trial and more access to them. While the losing party could always harass jurors, now they can cyber-harass them. 

Conclusion

I don't know. The Court noted in Tanner that

There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it.

We now have access to how the judicial sausage is made than ever before, and common law concept that juror deliberations were a black box that was never exposed to the public is no longer a reality. But which way should this lead us? 

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/07/similar-to-federal-rule-of-evidence-606bsection-906072bof-the-florida-statutes-states-that-upon-an-inquiry-into-th.html

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Comments

I agree with you and believe we've hit a perfect storm that requires a change. On one hand, the lack of restrictions on media coverage of trials (specifically, live TV feeds) create an appetite for celebrity status by potential jurors. On the other hand, we continue to blindly insist that delving into these attention-seeking jurors' minds, to ensure justice was reached, is improper.

I'd like to see a flat ban on live courtroom coverage, perhaps allowing a delayed feed of weeks or months. But if we can't have that, we should at least have powers of inquiry to ensure juror misconduct isn't distorting our trial outcomes.

Posted by: N | Jul 19, 2013 11:54:28 PM

Law Professor,

Do the laws of Double Jeopardy absolutely protect GZ? Or is there any hope that if, upon proper investigation and further review, a mistrial could be declared, and he could be tried again?

The cloud of suspicion continues to grow over this verdict. We can only have faith in the jury system if we are assured it operates with the scales of justice in balance. The Constitution assures the defendant many rights throughout the adjudication process. Sadly, the victim often gets lost, or worse. For those of us who believe we bore witness to a gross miscarriage of justice, these questions deserve answers. If no impropriety occurred, then this jury should have nothing to hide (JMO).

I look forward to your response.

Posted by: KimariE | Jul 21, 2013 2:41:23 PM

KimariE: The state of Florida cannot reprosecute George Zimmerman for murder. Even if a mistrial could retroactively be declared, even if it were found that Zimmerman engaged in jury tampering, double jeopardy would preclude his prosecution by the same sovereign (Florida). See, e.g., David S. Rudstein, Double Jeopardy and the Fraudulently-Obtained Acquittal, 60 MO. L. REV. 607, 620-31 (1995).

That said, the federal government could possibly bring federal criminal charges against George Zimmerman under the "dual sovereignty" doctrine, which I discussed here:

http://lawprofessors.typepad.com/evidenceprof/2010/10/last-weeks-episode-of-the-good-wifewas-pretty-interesting-at-the-start-of-the-episodealicia-and-willsecure-a-not-guilty-ver.html

Here's another blog talking about the doctrine and its possible applicability to Zimmerman:

http://www.volokh.com/2013/07/18/possible-federal-prosecution-of-george-zimmerman-and-the-dual-sovereignty-exception-to-the-double-jeopardy-clause/

That said, it would be pretty difficult to prove that Zimmerman violated a federal statute.

Posted by: Colin Miller | Jul 21, 2013 6:56:21 PM


If you are concerned with finality and jury protection, the Zimmerman case provides justification for 606. I do not believe that there is any evidence of fraud. Indeed, the verdict seemed inevitable if the jurors were to follow the law.

Recently another juror was interviewed, and the reporter put words in her mouth and imposed pressure for her to repudiate her verdict. In the end, the juror stood by the verdict.

Posted by: Rick Underwood | Jul 29, 2013 6:42:04 AM

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