Friday, May 28, 2021
Missouri Court of Appeals Precludes Jury Impeachment Based Upon Jurors Holding Defendant's Silence Against Him
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.
Missouri doesn't (really) have rules of evidence, but it applies a similar anti-jury impeachment rule. And, as the recent opinion of the Missouri Court of Appeals, Western District in State v. Gilbert, 2021 WL 2093608 (Mo. App. 2021), makes clear, there are very few exceptions to the rule.
In Gilbert, Abraham Gilbert was convicted of two counts of statutory sodomy in the first degree and five counts of child molestation in the first degree. After he was convicted, Gilbert appealed, claiming, inter alia,
that the trial court erred in denying his motion for new trial based on juror misconduct. Despite acknowledging Missouri's general rule governing the impeachment of a jury verdict, Gilbert urge[d] th[e] Court to create a new exception applicable to a jury's improper consideration of a defendant's failure to testify in reaching a verdict.
The Court of Appeals disagreed, concluding that
Two narrow exceptions have been recognized to this general rule....First, “it is permissible to elicit testimony about juror misconduct that occurred outside the jury room, such as the gathering of extrinsic evidence.”...Second, it is likewise permissible to elicit testimony about jury misconduct that occurred during deliberations where “a juror makes statements evincing ethnic or religious bias or prejudice during deliberations....”...
Gilbert made an oral offer of proof regarding the alleged juror misconduct. The evidence Gilbert sought to present would have consisted solely of “intrinsic” evidence relating to the thought processes of the jury, and, as a result, is subject to the rule that a juror's testimony may not be used to impeach the jury's verdict....While he acknowledges that neither exception applies to the facts of this case, Gilbert urges this Court to create a new exception encompassing a jury's improper consideration of a defendant's failure to testify in reaching its verdict. We decline to do so. In so doing, we are mindful of the wise words spoken by the United States Supreme Court when approving the exception for statements made during deliberations indicating racial bias. Pena-Rodriguez v. Colorado, -- U.S. --, 137 S. Ct. 855, 867-68, 197 L.Ed.2d 107 (2017). There, the Court warned that creating further exceptions to the general rule could create havoc: “[t]o attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. It is not at all clear ... that the jury system would survive such efforts to perfect it.” Id. at 868 (internal citations and quotations omitted). We heed the Court's warning.