EvidenceProf Blog

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

Monday, June 7, 2021

District of Montana Finds Attorney Can't Contact "Juror" Who Left Cryptic Message

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.

So, jurors generally can't impeach their verdicts, but there are three (Rules-based) exceptions. That said, many jurisdictions have rules that limit the ability of lawyers to contact jurors after a verdict. So, what should happen when a juror send a lawyer an ambiguous message? That was the question addressed by the United States District Court for the District of Montana in its recent opinion in United States v. McConnell, 2021 WL 2256276 (D. Mont 2021).

In McConnell, after Meredith McConnell was convicted of various crimes,

an alleged member of that jury apparently attempted to contact McConnell's attorney by calling her office. The juror left a message on the office's answering machine stating that he was a member of the jury and that “we had to do it.”...He then left a phone number to reach him. His name was not audible. An assistant for McConnell's attorney heard the message, made a brief note of the call, and then deleted the message in accordance with the office's standard business practices. Counsel for McConnell [then] ask[ed] permission to contact the juror “to ascertain why he called my office, and to determine if there were any activities of the other jurors or this juror, that could be a basis for appeal or a motion for new trial.” 

In response, the district court cited Rule 606(b) and District of Montana Local Rule 48.1(b), which states:

Neither parties nor counsel may interview jurors unless, within 28 days after the entry of judgment, a party files: (A) proposed written questions to be asked of the jurors; (B) an affidavit showing good cause; and (C) if granted leave, a second affidavit showing the results.

The court then held that

Made clear from the rules described above, attorney access to jurors is severely restricted. “Rules restricting lawyers’ access to jurors ‘(1) encourage freedom of discussion in the jury room; (2) reduce the number of meritless post-trial motions; (3) increase the finality of verdicts; and (4) further Federal Rule of Evidence 606(b) by protecting jurors from harassment and the jury system from post-verdict scrutiny.’”

The Court agrees with the Government that McConnell's motion fails to overcome the hurdles of Fed. R. Evid. 606(b) and fails to demonstrate good cause under D. Mont. L. R. 48.1. The alleged juror's identity is unknown, so he cannot be verified as an actual trial juror in the case. The alleged juror's voicemail simply states, “we had to do it.” Even this statement is second-hand information because the attorney's assistant is the only person to have heard the voicemail and the message no longer exists for further review. The statement is not enough to demonstrate juror misconduct during the trial's deliberation. “[I]n cases where there has been no showing of juror misconduct, we have held that a district court ‘d[oes] not abuse [its] discretion in refusing to allow postverdict interrogation of jurors.’”

I'm not sure that I understand the court's reasoning, which seems to be that we don't know what the caller really said and whether the caller was even a juror. If that's true, wouldn't it be proper for the attorney to follow up with the caller precisely because we don't know if the caller was a juror, meaning that Rule 48.1(b) wouldn't be triggered?



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Yes I agree with you. Not having the full opinion linked makes it a little challenging to understand what’s going on, but this is how I see it.

As to whether it even was a juror, it does make sense to permit that to be verified. The court should appreciate counsel seeking leave in advance. If counsel had gone off and followed up with the mystery caller unilaterally, one of two things would have happened. The person might just have been pretending, in which case no big deal. But had it in fact been a juror, then counsel ends up having an improper, unapproved conversation. So the court should be commending counsel for seeking leave, not complaining about the lack of independent diligence.

I also don’t understand the complaint over failing to demonstrate juror misconduct beforehand. Surely that can’t be the standard for good cause. Were that so, then, having such evidence in hand already, why would anyone even need to question the jurors? It makes far more sense to say that good cause is something less demanding. That at least gives an opportunity to demonstrate misconduct through the jurors’ actual responses to the questions.

Again, I’m saying all the above in a partial vacuum without the benefit of the complete opinion.

Posted by: hardreaders | Jun 8, 2021 3:27:44 AM

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