EvidenceProf Blog

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

Wednesday, February 20, 2013

The Rule of Evidence That's Never Applied, Take 2: Former Juror as Witness

Federal Rule of Evidence 606(a) provides that

A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

As noted in yesterday's post, I have yet to come across a case in which a member of the jury testified or was precluded from testifying pursuant to Rule 606(a). But I have come across two cases in which former jurors were precluded from testifying. One of those cases is Broadhead v. State Farm Mut. Auto. Ins. Co., 579 N.W.2d 761 (Wis.App. 1998), which I discussed yesterday. The other case is People v. Knox, 157 Cal.Rptr. 238 (Cal.App. 1979), which I will discuss today. 

In Knox, Donald Knox was convicted of several charges connected with the killing of John Flanery. After he was convicted, Knox appealed, claiming, inter alia,

that the trial court erred in refusing to allow appellant to call a former juror to testify concerning a conversation between a sheriff's officer and the witness Bethony which the juror allegedly overheard. According to one juror, Kramer, the juror in question, Conley, said to him, "Did you hear the officer? They framed that man." Juror Kramer assumed that Conley was referring to the defendant, but immediately terminated the conversation and informed the court of the occurrence. Conley denied in chambers that he had made such a statement, and further denied that he had had the impression that the officer was coaching the witness. His testimony [wa]s confused, however....

In response, the Court of Appeal noted that

A juror in the trial of an action may not testify as a witness before the jury in that trial against the objection of a party....As the comment to that section says, "A juror-witness is in an anomalous position....A party affected adversely by the juror's testimony is placed in an embarrassing position. He cannot freely cross-examine or impeach the juror for fear of antagonizing the juror and perhaps his fellow jurors as well. And, if he does not attack the juror's testimony, the other jurors may give his testimony undue weight...." It would appear that some weight should be given to these considerations in the case of the testimony of a former juror as well. The jury may continue to identify with a witness who was until recently a member of their group in the same way they are presumed to identify with an active member of the jury. In the instant case the prosecution objected to former Juror Conley's appearing as a witness.

The court then pointed out, however, that "[a]lthough a consideration, clearly the above discussion does not strictly apply to the situation in this case. The admissibility of Mr. Conley's testimony must be considered independently of his former status of a juror." After conducting such an independent analysis, the court then concluded that

Both the officer in question, Detective Carter, and Bethony were questioned at length by the court in chambers, and neither admitted that the conversation had consisted of anything but the officer's urging Bethony to "tell it like it is." The trial judge weighed the conflicting accounts, believed those of Carter and Bethony and accordingly decided that Conley's testimony would be unduly prejudicial, time consuming and confusing to the jury in view of its slight probative value.



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