The Sound Of Silence: Court Of Appeals of Iowa Precludes Jury Impeachment After Jury Finds Guilt Based On Defendant's Choice Not To Testify

Similar to its federal counterpart, Iowa Rule of Evidence 5.606(b) 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 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, 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 a 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 for these purposes.

So, let's say that a defendant exercises his Fifth Amendment right not to testify at trial, and jurors improperly use his failure to testify as evidence of his guilt. Can this jury misconduct form the proper predicate for jury impeachment under Rule 5.606(b)? According to the recent opinion of the Court of Appeals of Iowa in State v. Blair, 2011 WL 441968 (Iowa.App. 2011), the answer is "no."

In Blair, Clark Allen Blair was convicted of indecent exposure. Blair thereafter moved for a new trial, submitting a jury affidavit indicating that jurors took his failure to testify as evidence of his guilt. Specifically, the affidavit stated that

the deciding factor among the panel was that Mr. Blair did not testify, thus he must be guilty. If a person didn't commit the crime, they would want to tell their side of the story. Given this is such a moral crime, a person couldn't not get up and say "no, I didn't do this."

The trial court denied Blair's motion, prompting his appeals to the Court of Appeals of Iowa, where he claimed "that the juror affidavit complied with Iowa Rule of [Evidence] 5.606(b)'s requirement that the evidence be extraneous prejudicial information, because it was a consideration of something lacking rather than a consideration of the evidence presented." The court noted that this was an issue of first impression in Iowa but noted that the Eighth Circuit had interpreted Federal Rule of Evidence 606(b) as precluding such testimony:

In United States v. Rodriguez, 116 F.3d 1225, 1226-27 (8th Cir. 1997), the eighth circuit held that jurors were prohibited by rule 606(b)  from testifying that they discussed the defendant's failure to testify as part of their deliberation. The court found that the jury did not learn of the fact that the defendant did not testify from some outside communication, but learned it as part of the trial....While the court acknowledged that the jury should not have discussed the defendant's silence, the information was not extraneous to the trial and thus, the jury members are prohibited from testifying about it....

The Court of Appeals agreed with this reasoning and thus deemed the jury affidavit inadmissible.

-CM