EvidenceProf Blog

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

Monday, March 3, 2014

The Lying Juror: Supreme Court Grants Cert in Case Involving Juror Lies During Voir Dire

[Note: Looks like Jeff and I were on the same wavelength today as we both noticed the cert grant in Warger v. Schauers]

Federal Rule of Evidence 606(b) reads as follows:

(b) During an Inquiry into the Validity of a Verdict or Indictment.  

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.  

(2) Exceptions. A juror may testify about whether:  

(A) extraneous prejudicial information was improperly brought to the jury’s attention;  

(B) an outside influence was improperly brought to bear on any juror; or  

(C) a mistake was made in entering the verdict on the verdict form.

As I have written before, there is a split among courts about whether a party can have a juror testify regarding jury deliberations to prove that a juror lied during voir dire, with the possible effect of such testimony  being a reversal. It now appears that the Supreme Court will finally resolve the issue.

Today, the Supreme Court granted cert in five cases, including Warger v. Schauers, which involves the following issue:

Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonest during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

Here's the heart of the issue. Under Rule 606(b), a juror could not testify about juror drug use or anything internal to the jury deliberation process to directly impeach the verdict. Proving a juror lied on voir dire, however, indirectly impeaches the verdict.

Assume, for instance, that Juror # 8 responds during jury selection that he doesn't know the victim and then states during jury deliberations that the victim was his childhood friend. One reading of Rule 606(b) would be that a juror could testify about Juror #8's statement during deliberations to prove that Juror #8 lied during voir dire. The indirect effect of this would then be that the defendant could get a new trial because he could prove that an honest answer would have led him to strike Juror #8 for cause. See McDonough Power Equipment, Inc. v. Greenwood, 454 U.S. 548, 556 (1984). 

And, of course, this prompts the other reading of Rule 606(b), which is that it would not allow such testimony because the real purpose of it would be to impeach the verdict. Which way will the Court rule? I have no idea.



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It seems to me that the lower courts focused on the wrong thing. The jury foreperson claimed that her daughter had been in a fatal motorcycle accident and if she had been sued her life would have been ruined. The lower courts focused heavily on the issue of bias and the claim that her daughter life had been ruined and state that this does not fall into the exception for objective, extraneous evidence because even though it is extraneous it is not objective, being a matter of subjective opinion.

That is true as far as it goes. Yet her daughter was involved in a fatal accident and that is not a matter of personal, subjective experience. It is a matter of objective verifiable fact. Either her daughter was involved in such an accident or she was not, there is nothing subjective about it. The lower courts focused on the conclusion "it would have ruined her life" and not the underlying objective fact that lead to the conclusions "fatal accident."

So the truth that foreperson's daughter was in a fatal accident seems to me exactly and specifically the type of objective and extraneous information that squarely falls with in the exception to the rule.

Posted by: Daniel | Mar 5, 2014 6:31:08 PM

It is one thing to protect jury deliberations; but when a juror lies during voir dire we are not impeaching because of something that happened during deliberations. We are saying that a lie up front may have denied due process. Does that make any sense?

Hard to say what a court with 3 Admin Law Professors will say.

Posted by: rick underwood | Mar 6, 2014 9:14:08 AM

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