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U.S. Supreme Court,
Constitutional Law

Mar. 5, 2014

Precedent allowing juror testimony to be tested at high court

On Monday, the U.S. high court granted certiorari in a case in which a litigant's right to a fair trial collides with the law's policy favoring the secrecy of jury deliberations.

4th Appellate District, Division 2

Michael J. Raphael

Associate Justice, 4th District Court of Appeal

Yale Law School

On Monday, the U.S. Supreme Court granted certiorari in Warger v. Shauers, No. 13-517, a case in which a litigant's right to a fair trial collides with the law's policy favoring the secrecy of jury deliberations.

Specifically, at issue in Warger will be whether Federal Rule of Evidence 606(b) - which generally precludes juror testimony about matters occurring during deliberations - permits a litigant to use such testimony in order to demonstrate that a new trial is warranted because a juror was dishonest during voir dire.

While Warger arises from the 8th U.S. Circuit Court of Appeals, also at issue is a 27-year-old 9th Circuit precedent providing the authority that squarely favors the party seeking to use juror testimony.

Warger involves an auto accident near Mount Rushmore. Randy Shauers' truck clipped plaintiff Gregory Warger's motorcycle, causing Warger to lose part of his left leg, which ultimately had to be amputated.

During voir dire, prospective jurors told Warger's counsel that they could remain fair and impartial, and that they could award damages to Warger if supported by the evidence.

The jury returned a verdict for Shauers. Afterward, a juror named Stacey Titus met with Warger's counsel and executed an affidavit alleging that the foreperson, Regina Whipple, had not decided the case based on the evidence. Rather, Titus claimed, Whipple had told other jurors that her daughter had caused a fatal auto accident, and that a lawsuit would have ruined her daughter's life. Titus stated that Whipple told the jurors that her daughter had visited the dead motorist's family and provided flowers, and that the other jurors had been influenced by Whipple because they did not want to ruin the life of the young Mr. Shauers.

Under federal law, a litigant has a right to a new trial if "a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." McDonough Power Equipment Inc. v. Greenwood, 464 U.S. 548, 556 (1984). On this basis, Warger sought to use the Titus affidavit to demonstrate that Whipple was dishonest on voir dire in claiming to be fair and impartial. The district court, however, found that the affidavit was inadmissible under Rule 606(b), and the 8th Circuit affirmed that determination.

The 9th Circuit alone has held that Rule 606(b) generally allows the use of juror testimony about deliberations to demonstrate dishonesty on voir dire. In Hard v. Burlington Northern Railroad, 812 F.2d 482 (9th Cir. 1987), a plaintiff claimed that a juror was untruthful on voir dire by failing to disclose that he and his father had worked for the defendant company. Although the district court found that Rule 606(b) barred the admission of juror affidavits that recounted the accused juror's statements during deliberations, the circuit reversed and ordered an evidentiary hearing, stating simply that "[s]tatements which tend to show deceit during voir dire are not barred by that rule" and citing to dicta from another circuit.

No other circuit has adopted the 9th Circuit's rule. Five years ago, however, two 10th Circuit judges dissented from the denial of an en banc rehearing petition on the issue, and they asserted a textual basis in Rule 606(b) for the Hard rule. Rule 606(b) prohibits juror testimony only "[u]pon an inquiry into the validity of a verdict or indictment." (It can be used, for instance, in contempt proceedings against a juror.) According to the dissenting 10th Circuit judges, a new trial challenge based on voir dire dishonesty "is more properly viewed as an inquiry into 'the legitimacy of the pre-trial procedures,' and, in turn, the constitutionality of the overall proceedings." United States v. Benally, 560 F.3d 1151, 1153 (10th Cir. 2009) (Briscoe, J., dissenting).

The 10th Circuit majority had rejected that argument, stating that "[a]lthough the immediate purpose of introducing the testimony may have been to show that the two jurors failed to answer honestly during voir dire, the sole point of this showing was to support a motion to vacate the verdict, and for a new trial. That is a challenge to the validity of the verdict." United States v. Benally, 546 F.3d 1230, 1235 (10th Cir. 2008).This textual argument likely will determine whether the 9th Circuit's broad rule in Hard survives. In seeking a new trial, is Warger's allegation of voir dire dishonesty one concerning "the validity of a verdict" and thus one in which juror testimony about deliberations is precluded?

If the court endorses the broad rule allowing juror testimony in this context, no further analysis may be needed. Yet, if the court rejects the broad rule, a narrower textual argument may be addressed in Warger. Rule 606(b)(2)(A) contains an exception that permits juror testimony concerning whether "extraneous prejudicial information was improperly brought to the jury's attention." On this separate basis in Hard, the 9th Circuit permitted juror testimony that the accused juror brought information about the corporate defendant's settlement practices into deliberations. 812 F.2d at 485-86.

There is no doubt that the rule's exception covers, for example, information about independent research that a juror performed and brought into the jury room. Yet in Warger, juror Whipple arguably brought only her personal experience (with her daughter's automobile accident) into deliberations, and such experiences may not be seen as extraneous prejudicial information.

In cases like Hard and Warger, the line between personal experiences and extraneous information is not always obvious. Consider, for instance, United States v. Boney, 68 F.3d 497, 503 (D.C. Cir. 1995), in which a circuit held that where a juror had failed to disclose a prior felony on his qualification form, the court could on a new trial motion question the juror about "whether his felon status ever came up during jury deliberations, and, if so, the circumstances surrounding that disclosure." Is the D.C. Circuit correct that the juror's communications about his felony constitute extraneous information, or are they his personal experiences? In Warger, we may see how the justices draw this line as to Regina Whipple's alleged comments.

Warger will not affect California state courts. Evidence Code Section 1150 is more permissive in allowing juror testimony than is Rule 606(b), and, in this state, "the rule against proof of juror mental processes is subject to the well-established exception for claims that a juror's preexisting bias was concealed on voir dire." In re Hamilton (1999), 20 Cal. 4th 273, 298 n.19.

Nevertheless, how the Supreme Court analyzes the text of Rule 606(b) in Warger will determine the survival of the 9th Circuit's Hard rule, and the extent to which federal courts nationwide can permit juror testimony about deliberations when a litigant is seeking a new trial based on juror dishonesty on voir dire.


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