EvidenceProf Blog

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

Sunday, November 30, 2008

How Different Is Death?: Fifth Circuit Precludes Jury Impeachment Based Upon Misunderstood Jury Instructions In Capital Case

Probably the rule of evidence that most interests me is Federal Rule of Evidence 606(b), the anti-jury impeachment rule, which states 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."

Now, there are certainly several good reasons to have such a rule, with the main 3 being:  (1) it secures the finality of verdicts, (2) it allows jurors to deliberate without the fear that their deliberations will be put under the microscope after trial, and (3) it protects jurors from harassment by losing parties after trial.  And while I am somewhat uncomfortable with the Solomonic compromise that has been drawn with this rule, I find it pretty hard to argue with that compromise, despite it meaning that some "unjust" verdicts remain on the books.

But, when the proposed jury impeachment relates to racial, religious, or other bias by jurors, I think that the anti-jury impeachment rule must give way, and I will have my article on the issue completed early next year.  A second situation where I think that application of Rule 606(b) doesn't make sense is when the proposed juror misconduct occurred during a trial which resulted in the defendant being sentenced to capital punishment.

This was the circumstance addressed by the recent opinion of the Fifth Circuit in United States v. Jackson, 2008 WL 4901375 (5th Cir. 2008).  In Jackson, a jury found David Jackson guilty of murder and sentenced to him death based upon the killing of another inmate during a prison fight.

Jackson thereafter moved for a new trial, alleging, inter alia, that the jury erroneously believed that even if Jackson were sentenced to life without parole, it was still possible he could be released before the end of his life, despite the district court's explicit instruction to the contrary."  In support of this contention, he proffered an affidavit of an investigator who contacted jurors after the trial. The affidavit stated that a number of  jurors believed that Jackson could be released early, as had happened with a cooperating witness who testified at trial.

The Fifth Circuit denied Jackson's motion, finding that the jurors could not impeach their verdict through evidence of a misunderstood jury instruction.  Instead, it found that

     In United States v. Jones, 132 F.3d 232, 245-46 (5th Cir.1998), a death penalty case like Jackson's, we unambiguously stated that "[r]ule 606(b) has consistently been used to bar testimony when the jury misunderstood instructions" and that "'outside influence' refers to a factor originating outside of normal courtroom proceedings which influences jury deliberations, such as a statement made by a bailiff to the jury or a threat against a juror."

The question that this raised for me was:  Isn't death different, as the Supreme Court has recognized in other contexts?  Aren't there good reasons to believe that we shut put aside the anti-jury impeachment rule when there is evidence that jurors might merely have sentenced the defendant to life imprisonment but for a misunderstood jury instruction?

Well, it turns out that the Fifth Circuit addressed this issue in Jones but with a seemingly disastrous results.  In Jones, the Fifth Circuit was faced with a similar factual context and rejected the defendant's Eighth Amendment challenge to the court's application of Rule 606(b).  According to the court,

     "Noting that the Eighth Amendment requires a 'greater degree of reliability when the death sentence is imposed,' we are convinced that Rule 606(b) does not harm but helps guarantee the reliability of jury determinations in death penalty cases....Jury deliberations entail delicate negotiations where majority jurors try to sway dissenting jurors in order to reach certain verdicts or sentences. An individual juror no longer exposed to the dynamic offered by jury deliberations often may question his vote once the jury has been dismissed. Such self-doubt would be expected once extrinsic influences bear down on the former jurors, especially in decisions of life and death. When polled, each juror affirmatively indicated that he had voted for the death penalty. We will not allow a juror to change his mind after the jury has rendered a verdict. In this situation, the outcome could just as easily have turned out the other way with the jurors not supporting the death sentence convincing the death-prone jurors to impose life without the possibility of release. If the jury truly feared that the district court would impose some lesser sentence in the absence of a unanimous recommendation, then the jury had the option of imposing life without the possibility of release. Furthermore, the jury never sought a clarifying instruction to remedy the alleged confusion. Consequently, the affidavits do not convince us that the instructions given by the district court could lead a reasonable jury to believe that the failure to reach a unanimous decision would result in the imposition of a lesser sentence."

Really?  I could understand applying Rule 606(b) if a juror came forward and said that he actually was unsure whether the defendant was guilty beyond a reasonable doubt or said that he imposed the death penalty because he thought that holding out would be futile.  In those situations, there would be no way to corroborate the juror's claim.  But the situation seems different when a juror comes forward and claims that jurors misunderstood jury instructions.  Now, sure, in this latter situation, this claimed confusion could merely be pretext for second-guessing, but it seems like this possible pretext could be probed by seeing whether other jurors corroborated the claim.  As I said above, there might be enough reason to apply Rule 606(b) when misunderstood jury instructions allegedly led jurors to, say, impose a 4 year term of incarceration instead of a 2 year term of incarceration.  But again, isn't death different?  When a person's life is at stake, don't the protections of the Rule have to give way?

Besides, the "greater degree of reliability" analysis under the Eighth Amendment is all about making sure that the death sentence is not mandatory and that jurors instead look at the "relevant facets of the character and record of the individual offender or the circumstances of the particular offense."  Shouldn't the same apply to jury deliberations?  Otherwise, aren't we dealing with the mechanistic application of a rule of evidence in a manner that would violate the Compulsory Process Clause/right to present a defense?



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