EvidenceProf Blog

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

Monday, September 15, 2014

New York Times (Liptak) on Warger v. Schauers

Adam Liptak has this piece in today's New York Times on the Supreme Court's upcoming Fed. Rule of Evidence 606 case, Warger v. Schauers. 

As I said, in this post when cert was granted, the precise bounds of the longstanding prohibition of impeaching a jury's verdict with juror testimony about deliberations is a meaty and unresolved question.  But the "hopelessly amorphous" claim in this case (alleging that the juror testimony goes to another juror's lie in voir dire and not to impeach the verdict) makes it easy for the Court to dodge the harder questions.  That's because the "lie" is not all that clear -- as I said back in March:

"[E]ssentially as I read the materials, the juror in this traffic case said she could be objective and it is alleged that her comments during deliberations (about her prior experience with traffic accidents [specifically an accident involving her daughter]) reflect a predisposition to the defense."

Liptak's reporting uncovers even deeper ambiguity in the factual record (and outside that record) about the basis for challenging the jury's verdict.  He writes:

"[The defense affidavit] does not go very far in establishing that Ms. Whipple, the forewoman, had been dishonest during jury selection or that she would have been struck from the jury had she been more forthcoming." 

And, being a reporter, he called Ms. Whipple to find out what's up.  Probably an avid-Evidence Prof Blog reader, she echoed the theme of my earlier post, "sound[ing] surprised to be central to a Supreme Court case," but adding that the defense affidavit "was all wrong."  Not only did she not exhibit a predispositon based on her daughter's traffic accident but, according to Ms. Whipple, “My daughter never had any accident.”


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