EvidenceProf Blog

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

Friday, March 18, 2011

No One But The Bailiff: Supreme Court Of Nevada Finds Bailiff's Improper Behavior Insufficient To Award New Trial

Similar to Federal Rule of Evidence 606(b), N.R.S. 50.065(2) provides that

Upon an inquiry into the validity of a verdict or indictment:

(a) A juror shall not testify concerning 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.(b) The affidavit or evidence of any statement by a juror indicating an effect of this kind is inadmissible for any purpose. 

While both of these rules preclude certain types of jury impeachment, neither rule would preclude a bailiff from testifying that he engaged in misconduct that might have prejudiced the jury. But whether that misconduct necessitates a new trial is a separate issue and one with which the Supreme Court of Nevada grappled in its recent opinion in Lamb v. State, 2011 WL 743193 (Nev. 2011).

In Lamb, Robert Lamb was convicted of the first degree murder of his sister. After he was convicted, he brought a motion for a new trial based upon, inter alia, the following facts:

With notice to and no objection from the parties, the trial judge, who had a scheduling conflict, left the jury in another judge's charge on its second day of deliberations. Thereafter, the foreman told the bailiff he had a note for the judge. The bailiff saw the note, which asked about the difference between first- and second-degree murder, but he neither took possession of it nor alerted the parties or either judge. Instead, taking matters into his own hands, the bailiff told the jury the judge was out of the jurisdiction and to read the jury instructions. After this exchange came to light at the penalty hearing, Lamb moved for a new trial. Following an evidentiary hearing, at which the bailiff testified to these facts (no juror affidavits or other testimony was offered), the district court denied the motion for new trial, from which Lamb appeal[ed].

In considering Lamb's appeal, the Supreme Court of Nevada initially noted that there was no problem with the bailiff's testimony under N.R.S. 50.065(2), which merely precluded jurors from testifying (And the same would hold under Federal Rule of Evidence 606(b). Moreover, under either rule, it seems as if a juror could have testified about the bailiff's behavior as opposed to the jury's confusion).

This left the question of whether Lamb was entitled to a new trial. Lamb claimed that "prejudice is presumed once the bailiff's improper contact is shown." The Supreme Court of Nevada disagreed, finding "that only the 'most egregious cases of extraneous influence on a juror, such as jury tampering,' would warrant a conclusive presumption of prejudice." The court thus had to decide whether the trial court correctly concluded that the exchange between the jury and the bailiff "was not such as to have had a reasonable probability or likelihood of affecting the jury's deliberations."

And it found that this was the correct conclusion because

The jury instructions on first- and second-degree murder were a verbatim reprise of those we approved in Byford...and were correct-indeed, Lamb accepted them without objection or proffered additions. The bailiff's statement that the judge was not available and the jury should read the instructions thus did not introduce incorrect law into the proceedings...or cost Lamb the ability to cure an identifiable error in the instructions. There was no real contest at trial as to first- or second-degree murder; the issue was identity, not premeditation. On this record, therefore, we uphold the district court's determination that the communication was innocuous and conclude that there was no demonstrated likelihood or probability that the improper ex parte communication between the bailiff and the jury impacted the jury's deliberations.



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