EvidenceProf Blog

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

Monday, May 23, 2011

How Long Must I Dream?: District Of Colorado Finds Sleeping Juror Can Lead To 6th Amendment Claim, Despite Tanner

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.

Moreover, the Court found that the trial court did not violate the district court did not violate the petitioners' Sixth Amendment right to a competent jury by applying Rule 606(b) to preclude jury impeachment on these topics. As the United States District Court for the District of Colorado noted in its recent opinion in Fletcher v. Hartley, 2011 WL 1843316 (D. Colo. 2011), however, the Court did in Tanner didn't answer a related question: If a court allows jury impeachment regarding jurors sleeping during trial, should that court find that a sleeping jurors violates the Sixth Amendment right to a competent jury?

In Hartley, Charles Fletcher was convicted of attempted second degree murder, first degree assault, second degree kidnapping, two counts of aggravated robbery, two counts of second degree assault, conspiracy to commit aggravated robbery, and accessory to aggravated robbery. Fletcher thereafter moved for a new trial, claiming, inter alia, jury misconduct. In support of this motion, Fletcher submitted the affidavit of Iris Bell, who allegedly talked with a juror who sat in Fletcher's case and

"said he 'nodded off' during the jury trial. [He] said he felt it was 'okay to nod off, because he saw the judge sleeping and thought if the judge was sleeping, the evidence being presented must not haven been that important to listen to.'" The affidavit goes on to state that the juror "doesn't know at which stage of the trial he 'nodded off', but he said he nodded off a few times. He noted that he believed he saw the judge sleeping more than once." 

The court refused to give Fletcher a new trial, and, after he unsuccessfully appealed in the Colorado state court system, Fletcher filed a an application for a writ of habeas corpus with the United States District Court for the District of Colorado. The government responded by relying "on Tanner for the proposition that 'a juror who falls asleep during testimony is not per se incompetent." The court, however, "declin[d]e to adopt such a broad reading of that case." According to the court, "the Tanner Court did not hold that jurors' sleeping during trial is, or is not, per se incompetent under the Sixth Amendment, but, rather, that a court's refusal to allow juror testimony concerning such behavior does not violate the Sixth Amendment."

That said, the court concluded that Fletcher was only entitled to habeas relief if it could be established that the alleged misconduct "had substantial and injurious effect or influence in determining the jury's verdict." And, he court was unable to find such substantial and injurious effect or influence based upon the lack of specificity regarding when and for how long the juror slept during the trial (the court didn't mention the allegation that the judge himself slept during trial).



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