EvidenceProf Blog

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

Monday, June 23, 2014

Don't Forget This Fact, You Can't Get It Back: 3rd Circuit Precludes Jury Impeachment in Crack/Powder Cocaine Case

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.

Rule 606(b) is thought to (1) protect jurors from harassment; (2) allow the freedom of deliberation; and (3) secure the finality of verdicts. But are those values served in a case like United States v. Morris, 2014 WL 2783460 (3rd Cir. 2014)?

In Morris, Michael Morris

and a co-defendant, Dawan Maynard, were indicted and tried on two counts: (1) conspiracy to distribute powder cocaine and crack cocaine,...and (2) distribution and possession with the intent to distribute powder cocaine and crack cocaine....The charges arose from the following incidents. According to the evidence at trial, Maynard and Morris arranged four drug sales, two in 2010 and two in 2012, to individuals who turned out to be confidential police informants. Morris made the actual drug hand-offs in both of the 2012 sales, and those transactions involved powder cocaine only. Police also found two plastic baggies of powder cocaine on Morris at the time of his arrest in August 2012.

At the end of trial,

The jury convicted Morris and Maynard on both counts. The verdict form contained a special interrogatory for each charged offense. With respect to each count, upon a finding of guilty, the jury was tasked with determining the weight of the crack cocaine, if any, involved in the offense. The jury found that Morris had conspired to distribute and had actually distributed, or possessed with the intent to distribute, 28 grams or more, but less than 280 grams, of crack cocaine. It also found that Maynard had conspired to distribute 28 grams or more, but less than 280 grams, of crack cocaine, but that, unlike Morris, he had distributed less than 28 grams of that drug. After the foreperson announced and the other jurors confirmed their agreement with the verdict, Morris asked the District Court to ask the jury whether the drug weights, as found, included crack cocaine or powder cocaine. The Court deemed it inappropriate to inquire further into the jury's decision, and denied the request

Morris's attorney had clearly keyed into the fact that the differences in the jury verdicts likely meant that the jurors improperly included powder cocaine in their weight calculation. And this supposition was corroborated when, 

Later that day, one of the jurors informed the District Court that, when making its weight determination with respect to the distribution charge, the jury considered the amount of both powder cocaine and crack cocaine.


The Court promptly informed counsel of the juror's statement. Morris moved to correct the verdict, arguing that the jury had plainly made a mistake when responding to the special interrogatories. He asked that the Court recall the jury and investigate the reported mistake to ascertain whether it was a mere transcription error made when completing the verdict form.

The District Court denied the motion. It found that the juror's statement suggested no clerical—and correctable—error regarding the manner in which the verdict was entered on the form. Rather, any error related to the jury's understanding and application of the Court's instructions to the facts of the case. The Court found that it had no authority to probe the jury's mental processes or correct a verdict based on evidence of such an error.

On Morris's appeal, the Third Circuit subsequently reached the same conclusion

the juror's statement, as recounted by Morris and the Court, does not suggest that the verdict contained a transcription error or inaccurately reflected the will of the jury. The juror simply reported that the jury included both cocaine powder and crack cocaine when determining the weight of drugs distributed by Morris. This was error, as the special interrogatory directed the jury to find the weight of crack cocaine alone. The error, however, was a mistake in the jury's understanding of the Court's instructions and how the special interrogatory should be answered. Rule 606(b) barred the Court from receiving such evidence, which pertained to the jurors' thought process, or relying on that evidence as a basis for amending the verdict. The Court, therefore, did not abuse its discretion when it refused to recall the jury for an evidentiary hearing into how it arrived at its determination of the weight of drugs involved in those counts on which it found Morris guilty.

So, returning to the question from the introduction: Does the decision in Morris serve the values inherent in Rule 606(b)? I will leave it to jurors to answer that question.

What I think was clear error, though, was the judge's decision not to conduct a post-verdict voir dire. I don't mean legal error because the judge has discretion in this regard. See, e.g., U.S. v. Anwo, 97 Fed.Appx. 383 (3rd Cir. 2004). I simply mean logical error. As far as I can tell from the opinion in Morris, there is no indication that Morris possessed any more crack cocaine than Maynard; instead, he merely possessed more powder cocaine. Therefore, the judge should have seen that there was no justification for the differing verdicts, especially given the motion by Morris's attorney.



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