EvidenceProf Blog

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

Wednesday, May 13, 2009

I'd Rather Be Fishing: Court Refuses To Allow Jury Impeachment Based Upon Juror Changing Vote To Guilty To Make Annual Fishing Trip

In State v. Miller, 2009 WL 1081745 (Wis.App. 2009), James D. Miller appealed from his conviction for first-degree reckless injury while armed with a dangerous weapon and aggravated battery while armed with a dangerous weapon, alleging, inter alia, juror misconduct. His claim: One of the jurors found him guilty so that he could be dismissed in time for his annual fishing trip. Unfortunately for Miller, the Court of Appeals of Wisconsin didn't take the bait.

At the outset of Miller's trial, the court informed the jury that the trial was expected to last two days. When, at the end of the second day, it became clear that the trial would run long, the court asked jurors if they would be able to return the following day. One juror informed the court that he had planned to leave town the following day at 3:00 p.m. for an annual fishing trip. The court advised the juror that the case would likely be sent to the jury by noon, but the case did not go to the jury until 4:12 p.m. the following day, with the jury returning a guilty verdict at approximately 8:30 that night. As part of his appeal, Miller presented an affidavit alleging that the fishing-trip juror later told an investigator that he switched his vote from "innocent" to "guilty" to end jury deliberations so that he could leave for the trip.

The problem for Miller, however, was that Wisconsin Stat. Section 906.06(2) 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 the juror's 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, 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 the 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. 

According to the court, the problem for Miller was that he wanted the fishing-trip juror to impeach the verdict based upon the effect of the fishing trip upon his mind or emotions as influencing him to assent to the verdict. This meant that the proposed testimony fell squarely under Wisconsin Stat. Section 906.06(2), making it inadmissible.

Miller tried to get around this conclusion by claiming that the fishing-trip juror's "impending departure for his annual trip, and no doubt the chiding he could expect from his buddies," was an outside influence improperly brought to bear upon the juror. The court, however, "conclude[d] that the scheduled fishing trip, and any criticism the juror might expect to receive from his fishing buddies for missing the trip, was not, as a matter of law, an "outside influence" within the meaning of WIS. STAT. ยง 906.06(2).

I'm not sure that I agree with this conclusion, but in reviewing this post this morning, I see that the court withdrew its opinion yesterday, so I will have to see what the court now does before reaching any final conclusions.



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