Proof of Jury Misconduct During Deliberations

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

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