Proof of Jury Misconduct During Deliberations

September 20, 2011

Texas jury verdicts are a lot like Las Vegas. Even the law recognizes that what happens in the jury room needs to stay in the jury room. 

With one exception (the “outside influence” exception), Texas Rules of Evidence 606 expressly prohibits jurors from testifying, either live or by affidavit, as to any matters that occurred during deliberations. In practical terms, this rule means that after the last argument is made and the door closes behind the twelfth juror entering the jury room, most anything that jurors say or do from that point until the verdict is returned to the courtroom is protected from disclosure. Whether jurors speculated as to liability insurance, tossed coins, drew straws, or conducted themselves in any other manner prohibited by law during deliberations, the only eye-witnesses who could testify about it are expressly prohibited from doing so.

Though two decades old, Daniels v. Melton Truck Lines, Inc. perhaps still provides the best example of the incredible reach of this rule. In that case, the trial court struck a motion for new trial’s supporting affidavits which outlined the following jury misconduct: 

(Juror Hamilton) kept repeating that she was a police officer…and her duties included patrolling, investigating … and issuing tickets…  She left the distinct impression that if we did not answer the questions as she thought they should be answered, that we would see her later and could suffer the consequences…  (S)he was angry and shouted down those who disagreed with her… She never directly threatened anyone but … indicated those disagreeing with her could see her later in the patrol car…  It is my opinion that the emphasis on her right to make arrests… had an influence on some of the jurors changing and siding with her…

Five other jurors came forward with similar testimony regarding Hamilton’s conduct during deliberations.  Nevertheless, the Court of Appeals agreed that the testimony fell squarely within the prohibition of Rule 606 and the trial court did not err in disregarding it.  704 S.W.2d 142 (Tex. App. — Eastland 1986), explaining:

Rule 606(b) bars testimony by any juror as to all matters or statements occurring during the course of their deliberations, except for testimony that “any outside influence was improperly brought to bear upon any juror.” As we read this rule, the statements by Juror Hamilton do not come within the exception and, consequently, proof of her statements and their effect is barred by the rule.

The Texas Supreme Court has upheld strict application of the rule, enunciating four public policy reasons which justify the prohibition against a losing party “putting the jury on trial.” Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000). They are: 

  1. The need for jurors to be able to candidly discuss the evidence and issues without fear that their deliberations will be held up to public scrutiny; 
  2. The need to protect jurors from post-trial harassment or tampering;
  3. The need to protect proper verdicts from disgruntled jurors who might seek an avenue of vindication by attempting to overturn them, and
  4. The need for finality to promote public confidence in judgments.   

Given the huge evidentiary hurdle, what is an attorney to do when faced with allegations of jury misconduct which occurred during the deliberative phase of trial? 

  • Look to the exception in the rule:  Jurors are permitted to testify whether “any outside influence was improperly brought to bear upon any juror.”  (Note that this exception will also permit one juror to speculate as to influences on other jurors, not just on themselves.)  Although the Texas Supreme Court has never defined what kind of “outside influence” a juror may testify about, they have indicated that they consider an outside influence as something that must “originate from sources other than the jurors themselves.”  24 S.W.3d at 370.
  • Consider the obvious:  Judges, bailiffs and any other member of the court staff who have access and contact with members of the jury can be “outside influences” for the purpose of this rule.
  • Know what “deliberation” is (and isn’t):  While older cases defined deliberation as “any conversation regarding the case occurring between or among jurors … regardless of the time and place where it occurs,” the Supreme Court has expressly refused to accept such a broad definition.  Informal discussions among jurors during breaks are not part of deliberations, the Court has held, especially since jurors are specifically admonished not to engage in informal discussions.  In many charges, the jury is instructed only to deliberate “in the jury room when all members of the jury are present.”  If an attorney learns of misconduct which occurred in the jury room, a further inquiry as to how many jurors were present at the time could prove fruitful.  If jurors were missing from the room when the misconduct occurred, then the jury should not have been “deliberating” under the instructions of the judge.  Perhaps, then, the misconduct didn’t occur during “deliberations,” rendering Rule 606 inapplicable.
  • Look for other sources of evidence:  Sometimes competent evidence of juror misconduct can be proved using sources other than the jurors themselves.  Mayo v. State, 708 S.W.2d 854 (Tex. Crim. App. 1986) (testimony from a witness contacted by a juror).
  • Whatever you do, though, act quickly:  Assuming the evidentiary hurdles can be overcome, time is of the essence.  Complaints of jury misconduct must be raised by motion for new trial, giving an attorney a narrow window of opportunity to preserve error.  Thirty days after the judgment is signed, any right to raise a complaint of jury misconduct on appeal is lost. 

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Judicial Admissions Through Statements by Attorneys

August 2, 2011

Anything you say can and will be used against you in a court of law.  Although the importance of this warning in the criminal law context is well understood, lawyers who venture into the arena of civil litigation would do well to consider how that concept might apply to them.

The reality is that any statement, whether oral or in writing, made to the court by an attorney on behalf of his or her client could potentially be used against that client later in court.  And, unfortunately, the more articulate, lucid and straight-forward the statement, the more likely it is to get the client into trouble.

It is well-settled in Texas law that any assertion of fact not pleaded in the alternative which appears in a party’s live pleadings will be regarded as a formal judicial admission.  Houston First American Savings v. Musick, 650 S.W.2d 764 (Tex. 1983).  As long as the admission stands unretracted, the fact admitted is accepted as true.  Texas Processed Plastics, Inc. v. Gray Enterprises, Inc., 592 S.W.2d 412 (Tex. App. – Tyler 1979).  As with other types of judicial admissions, the statement must be deliberate, clear and unequivocal.  Id.  

Over the years, this rule has expanded beyond live pleadings, to statements made in briefs and other motions, as well as arguments made by attorneys during hearings and at trial, including:

  • Remarks at Charge Conferences:  Attorney’s stated rationale for not lodging an objection to the omission of a separate damage question – that he agreed that the damages already sought under a different legal theory would be the same – was held sufficient to bind his client to that position.  American National Petroleum Co. v. TransContinental Gas Pipeline Corp., 798 S.W.2d 274 (Tex. 1990).
  • Argument at Trial:  Urging the statement-by-agent hearsay exception as one ground for admissibility of declarant’s statement was an admission establishing that the declarant was his client’s agent as a matter of law.  Carroll Instrument Co., Inc. v BWB Controls Inc., 677 S.W.2d 654 (Tex. App. – Houston [1st Dist.] 1984).  
  • Stipulations:  Stipulation by a party that he signed an instrument in the capacity of guarantor is a judicial admission requiring no written evidence of guaranty status, notwithstanding the Statute of Frauds.  Menendez v. Texas Commerce Bank, 730 S.W.2d 14 (Tex. App. – Corpus Christi 1987).

Perhaps the biggest trap for the unwary is in summary judgment proceedings.  While it is elementary that pleadings do not constitute summary judgment proof, an exception is made for the admissions contained therein.  Judicial admissions contained in pleadings may be used to support a summary judgment.  Underhill v. Jefferson County Appraisal District, 725 S.W.2d 301 (Tex. App. – Beaumont 1987).

The easiest trap to avoid is typographical errors.  In De La Fuente v. Home Savings Assn., what appeared to be a typographical error as to a particular date in a live pleading was held to conclusively prove that a note was assigned to a third party on the very same day that it was executed, rendering it void and unenforceable by law.  669 S.W.2d 137 (Tex. App. – Corpus Christi 1984) (providing yet another reason to avoid over-reliance on spell-check).

Fortunately, there are some safe harbors: 

  • Law vs. Fact:  An attorney can’t judicially admit what the law is or a legal conclusion to be drawn from facts pleaded.  Barstow v. Texas, 742 S.W.2d 495 (Tex. App. – Austin 1988); J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex. App. – Amarillo 1967).  Keep in mind, however, that while the law itself cannot be judicially admitted, judicial error can. Flores v. Texas Department of Health, 835 S.W.2d 807 (Tex. App. – Austin 1992) (holding that the defendant’s assertion that he agreed with plaintiff that a particular finding of fact was not supported by the evidence was not “mere acquiescence to appellant’s argument” but a judicial admission “amounting to a confession of error.”) 
  • Impressions vs. Facts:  Statements which are merely impressions may not be sufficiently clear and unequivocal to be considered a judicial admission.  National Savings Insurance Co. v Gaskins, 572 S.W.2d 573 (Tex. App. – Ft. Worth 1978).
  • References:  Simple reference to another party’s affidavit will not constitute an admission that the facts contained therein are true.  American Casualty Co. v. Conn, 741 S.W.2d 536 (Tex. App. – Austin 1987).  Take care, however, when you assume for purposes of argument that your opponent’s position is true, to clearly demonstrate the conditional nature of your argument.  Hill v. Steinberger, 827 S.W.2d 58 (Tex. App. – Houston [1st Dist.] 1992) (wherein movant “accepted as true” all the factual allegations contained in his opponent’s original petition, thereby defeating his own summary judgment motion).
  • Damage Control:  By amending, withdrawing or retracting, you can at least eliminate the binding effect of an admission.  However, the pleading will still remain a statement “seriously made” and can be introduced in evidence as an admission against interest.  Kirk v. Head, 152 S.W.2d 726 (Tex. 1941).  This is very tricky business, however.  While a request made in final argument for a court to “overlook” an erroneously pleaded fact will not undo the admission, De La Fuente at 145, pleading the opposite or an inconsistent fact in the same document will.  Texas Processed Plastics at 416.

Finally, in an elegant twist of irony that could find its place only in the law, simple ineptitude may be the one sure thing to keep an attorney out of trouble.  Canales v. Canales, 683 S.W.2d 77 (Tex. App. – San Antonio 1984) (The transcript of the hearing “fails to convey with any degree of lucidity what was actually said or meant by the attorney.  There can be no judicial admission under those circumstances.”)

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Prior Bad Acts – What Happens in Vegas May Have to Stay in Vegas

June 20, 2011

We all know that the Texas Rules of Evidence (TRE 404) generally prohibit us from using evidence of prior bad acts to show that our opponent acted in conformity therewith.  So what do you do when your investigation turns up the 500-pound skeleton in your opponent’s closet?  Look to the exceptions.

Rule 404 itself provides the first exception.  When offered for another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, prior bad acts may be admissible. For example, while prior fires of suspicious origin would be generally inadmissible to prove arson in a particular case, they may be used to prove plan, scheme or design.  Payne v. Hartford Fire Ins. Co., 409 S.W.2d 591 (Tex.Civ.App. 1966) (Each of the previous fires destroying plaintiff’s houses occurred in the early morning, when no one was home, after personal effects of substantial value had been removed from the house, at a time when the plaintiff was in dire financial circumstances, and resulted in the collection of substantial money under fire insurance policies.)

If the exceptions in Rule 404 don’t apply, Rule 406 provides another exception for habit or routine:

Evidence of the habit of a person or of the routine practice of an organization … is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 

When prior bad acts rise to the level of habitual behavior, then these bad acts will be admissible to show action in conformity therewith.  This is because the law recognizes that a person is far more likely to act in conformity with established habit than to act in conformity with a perceived general character or disposition.  Isolated instances of bad conduct, however, will not invoke the Rule 406 exception.  Rule 406 applies only to highly repetitious conduct, along the lines of smoking cigarettes or reading the morning newspaper.  

Another significant exception to the rule comes into play with regard to punitive damages.  While prior bad conduct is generally not admissible to prove liability for an underlying tort, a jury is often allowed to consider prior bad acts at the punitive damage stage of trial.  For example, while evidence that a defendant regularly smoked marijuana while driving a car could not be used to prove negligent driving, it would be relevant to the determination of punitive damages for negligent driving.  Castro v. Sebesta, 808 S.W.2d 189, 193 (Tex. App. — Houston [1st Dist.] 1991).   

In the landmark decision of BMW of North America, Inc. v. Gore, the U.S. Supreme Court instructs that not only can prior bad acts be used as evidence within the punitive damage context, they should be admissible in assessing the degree of culpability of conduct at that point. 517 U.S. 559 (1996).  According to BMW, one of the factors which should be considered in determining the reasonableness of a punitive damage award is whether the conduct was an isolated incident or whether the conduct involved repeated bad behavior. Later, however, the Supreme Court took a second look at the use of this evidence, specifically in the context of out-of-state bad conduct, and limited the use of prior bad acts in two fairly significant ways.  State Farm Mutual Automobile Insurance Co. v Campbell, 538 U.S. 408 (2003). 

First, not just any bad acts will do.  Although prior transgressions need not be identical to the act being adjudicated, the prior act occurring out of state must “replicate” the conduct in question in order to be admissible at trial.      

Second, while bad acts occurring out of state may be probative as to deliberateness and culpability, if the conduct was lawful in the state where it occurred, the amount of punitive damages assessed cannot be based upon those lawful, out-of-state bad acts.  Declaring that states do not have a legitimate concern in imposing punitive damages to punish a defendant for acts committed in other jurisdictions, the Court held that an exemplary damage award cannot be based on conduct which is lawful in the state where it occurred, no matter how similar, no matter how bad.

In order to reconcile the two Supreme Court decisions – BMW and State Farm – it appears that while a jury may consider evidence of bad-yet-lawful out-of-state conduct in evaluating the egregious nature of a tortfeasor’s conduct during the exemplary damages phase of trial, the jury may not consider that same evidence to punish the tortfeasor (by way of assessment of exemplary damages) during that same phase of trial.  In other words, the jury may use the evidence to determine whether the conduct was really, really, bad, but when deciding how much money to assess for the really, really, bad conduct, the jury must disregard all of the bad-yet-lawful out-of-state conduct it heard and consider only in-state bad conduct and bad-and-unlawful out-of-state conduct in arriving at a proper amount to award in punitive damages.  

Confusing?  Let’s just hope that 500-pound skeleton you found is wearing cowboy boots firmly planted in the Lone Star State.  Otherwise, what happened in Vegas may have to stay in Vegas.

–Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


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