EvidenceProf Blog

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

Sunday, September 13, 2009

The Sleeping Juror: Eastern District Of California Denies Habeas Relief To Petitioner Despite Non-Juror Evidence Of Sleeping Juror

In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court held that post-trial juror testimony that, during trial, jurors were falling asleep, drinking alcohol, and using and selling drugs was inadmissible under Federal Rule of Evidence 606(b), which provides in relevant part 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.

According to the Court, this was the case because none of the alleged juror misconduct constituted extraneous prejudicial information or an improper outside influence. The court did note, however, that the Rule only precluded post-trial impeachment of verdict by jurors, not post-trial impeachment of verdicts by non-jurors. And in the recent opinion of the United States District Court for the Eastern District of California in Anderson v. Terhune, 2009 WL 2462398 (E.D. Cal. 2009), the petitioner had non-juror evidence that a juror fell asleep during portions of his trial. And yet, the court somehow found that this evidence was insufficient to award the petitioner relief.
In Terhune, Arthur Anderson was convicted of two counts of first degree murder and one count of attempted murder. After he was convicted and unsuccessfully appealed in the California state court system, Anderson brought a petition for writ of habes corpus with the United States District Court for the Eastern District of California, alleging, inter alia, that he received constitutionally ineffective assistance of counsel when his trial counsel failed “to adequately investigate and present evidence that Juror Bruce Moon fell asleep for minutes at a time, several times each day throughout the trial, and thereby missed cumulatively significant portions of trial testimony, and that Mr. Moon suffered from an undiagnosed disorder that caused him to slip into a sleep state when in sedentary situations” in connection with petitioner's motion for a new trial.

In response, the Eastern District of California noted that the issue was governed by California Evidence Code Section 1150(a), California's counterpart to Federal Rule of Evidence 606(b), which rendered any juror testimony regarding the sleeping juror inadmissible. But the court noted that

Petitioner has also presented non-juror evidence of Mr. Moon's sleeping, including declarations from petitioner's mother, petitioner's two sisters, and two friends of petitioner's family, all of whom averred that they observed Mr. Moon appear to fall asleep during portions of the trial. In addition, petitioner has presented an expert declaration from David Claman, M.D. concerning whether Mr. Moon suffered from a sleep disorder and the probable impact of such a disorder "on his ability to perceive trial testimony."...Dr. Claman's declaration is based substantially, though not entirely, on juror affidavits, testimony and interviews....It is also based on the nonjuror declarations filed by petitioner in this action.

The court found that this evidence was not covered by California Evidence Code Section 1150(a), but it found that this evidence was insufficient to award Anderson relief because "the United States Supreme Court held in Tanner that evidence that 'some jurors were 'falling asleep all the time during trial'' did not establish juror incompetence sufficient to justify further post-verdict inquiry."

The problem that I have with this holding is that this is not what the Court found in Tanner. Instead, the Court in Tanner found that the allegations of sleeping jurors "would not suffice to bring this case under the common-law exception allowing post-verdict inquiry when an extremely strong showing of incompetency has been made." But Anderson wasn't trying to establish that his evidence fit into the common-law incompetency exception to the anti-jury impeachment rule. Instead, it was undisputed that the non-juror evidence regarding Moon sleeping was admissible; the only question was what effect Moon's sleeping (likely) had on the verdict.



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