EvidenceProf Blog

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

Tuesday, February 19, 2013

The Rule of Evidence That's Never Applied: Federal Rule of Evidence 606(a) and Jurors as Witnesses

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 long as I have been teaching Rule 606(a), I haven't come across a single case in which the Federal Rule of a state counterpart has been applied. If any readers are aware of any such cases, please pass them along. Meanwhile, in the next 2 days, I will post entries about cases that almost involved application of Rule 606(a). Both of them involve similar fact patterns: a juror discharged by the judge later being called as a witness by one of the parties.

The first of these cases is Broadhead v. State Farm Mut. Auto. Ins. Co., 579 N.W.2d 761 (Wis.App. 1998). In Broadhead

State Farm Mutual Automobile Insurance Company appeal[ed] a judgment awarding Peggy Broadhead damages and costs for personal injuries she sustained as a result of an automobile accident with State Farm's insured.

After Broadhead's husband testified on the first day of trial,

juror Patrick Nolan realized that his assertion during voir dire that he did not know Broadhead was incorrect, and he so informed the bailiff when testimony had concluded for the day. Nolan subsequently explained to the court that he initially had not recognized Broadhead during jury selection, but that he recalled his acquaintance with her when hearing her husband's testimony. Specifically, Nolan recalled that Broadhead and her husband had done some work on a roof at his farm in 1995. Nolan went on to explain that he observed Broadhead carry five gallon buckets of roof coating material up a ladder and then apply the material to his roof. The activities which Nolan witnessed took place some two or three years after Broadhead's car accident.  

After this revelation, the trial court dismissed Nolan as a juror but denied State Farm's request to call Nolan, his wife or his father as a witness in the trial. State Farm subsequently moved for a mistrial which the court also denied. The next day, State Farm again moved for a mistrial, or in the alternative, for a new trial because of "newly discovered evidence." The trial court denied these motions. The jury returned a verdict which awarded Broadhead a total of $38,116.25 in damages for her injuries.

In addressing State Farm's ensuing appeal, the Court of Appeals of Wisconsin noted that

While "[e]very person is competent to be a witness,".... the Wisconsin rules of evidence contain an exception in the case of jurors:  

A member of the jury may not testify as a witness before that jury in the trial of the case in which the member is sitting as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. Section 906.06(1), STATS.

The court then acknowledged, however, that "Nolan, of course, ceased to be a member of the jury once he was discharged by the court." But the court still found that

inasmuch as he had been a member of the jury during voir dire and an entire day of testimony, most of the problems which the juror incompetence rule implicitly seeks to avoid would have been present had Nolan been allowed to testify....

It is likely that Nolan's testimony would be accorded considerable weight and credibility by his former colleagues on the jury, regardless of whether it was merited, for no other reason than Nolan had been one of them. Broadhead's counsel might well have been unable to freely cross-examine or impeach Nolan due to a concern that it might antagonize the remaining jurors. Conversely, if Broadhead did not attack Nolan's credibility, the remaining jurors might have yet another reason to accord his testimony undue weight. The trial court succinctly stated its rationale for excluding any testimony from Nolan when it noted: "The reason is although we want to achieve justice, we can't be turning jurors into witnesses in front of the same jury that they sat on." We agree and find it hard to envision any circumstance under which it would be appropriate to allow a person who has been discharged from a jury in mid-trial to testify before that same jury.

This left the question of whether the trial court should have declared a mistrial, with the Court of Appeals of Wisconsin answering this question in the negative, finding that (1) Nolan was uncertain of exactly what he saw; and (2) that State Farm presented significant other evidence that Broadhead was exaggerating the extent of her injuries.



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