Saturday, April 18, 2020
Utah Federal District Court Finds Trial Judge Didn't Need to Question Jurors About COVID-19 During Deliberations in Mid-March
A Utah jury hadn't completed deliberations as the weekend approached on Friday, March 13, 2020. The jury then completed deliberations on Monday, March 16, 2020, finding the defendant guilty. After the defendant was convicted, he appealed, claiming that the judge should have asked the following questions to the jury before the weekend:
These were the facts in United States v. Derman, 2020 WL 1676770 (D. Utah 2020).
The court rejected this argument, finding that
Defendant’s argument in this regard is not only unsupported by the law, it is wholly at odds with his prior stance on the issue. At no time before the jury returned with a verdict did Defendant request that jurors be questioned regarding potential concerns about coronavirus. In fact, Defendant’s current argument is directly contrary to the position articulated in his initial memorandum in support of his motion for mistrial. In that memorandum, Defendant affirmatively stated that “[a] third individual voir dire of the jurors will not suffice[,]” and that “[a] third inquiry of these jurors will cause the jurors to turn on this process all together and feel as if they are on the receiving end of an attack by this Court and the parties.”...Defendant further argued that “any individual inquiry is limited by HIPPA protections as to the status of [jurors’] physical and mental health” and that “an inquiry will not only invade the sacred province of juror deliberations as contemplated by FRE 606 but also jeopardize Mr. Dermen’s rights to a fair and impartial jury.” Id. In essence, prior to the return of the verdict, Defendant affirmatively and explicitly urged the court not to question the jurors. It was only after the jury returned with a guilty verdict that Defendant changed course, arguing for the first time that jurors should have been questioned. Having urged the court not to question jurors before the return of the verdict, Defendant cannot now credibly argue that the court erred in failing to do so.
The court then concluded that
that inquiring into jurors’ views regarding the coronavirus outbreak when no concern had been raised by any member of the jury would have constituted an improper intrusion into their deliberations in violation of Rule 606(b)(1) of the Federal Rules of Evidence. Information concerning the outbreak of the coronavirus does not constitute “extraneous prejudicial information” or “an outside influence.” Accordingly, any inquiry into the juror’s thoughts regarding coronavirus would have been improper.
I agree with the court that the defendant should not have been entitled to relief based on his changed position. But I don't agree with the court's conclusion that Rule 606(b)(1) covered this situation. Rule 606(b) only applies "[d]uring an inquiry into the validity of a verdict," i.e., after the jury has returned a verdict. Therefore, the judge certainly could have asked questions of the juror as they went into the weekend without having reached a verdict without violation the Rule. Whether the judge should have, though, is another question.