Resolving an issue that had split some federal circuit courts, the Supreme Court unanimously holds that Federal Rule of Evidence 606(b) precludes a party seeking a new trial from using one juror’s affidavit or testimony about what another juror said in deliberations to demonstrate the other juror was dishonest during voir dire.
In this civil case arising from a motor vehicle accident, Warger moved for a new trial after learning from one juror that another juror, named Whipple, had spoken during deliberations about a car accident her daughter had caused and said that “if her daughter had been sued, it would have ruined her life.” (Slip op. at 2). Warger argued this showed Whipple had failed to answer honestly when asked during voir dire whether she would be unable to award damages for pain and suffering or for future medical expenses, or whether there was any juror who thought they couldn’t be a fair and impartial juror on this kind of case. (Slip op. at 1-2).
The lower courts held that evidence about Whipple’s statements during deliberations was inadmissible under Rule 606(b). That Rule says that “[d]uring an inquiry into the validity of a verdict,” evidence “about any statement made or incident that occurred during the jury’s deliberations” is inadmissible, Rule 606(b)(1). While there are three specific exceptions to this bar—viz., testimony 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,” Rule 606(b)(2)—the lower courts held none of them applied here. (Slip op. at 2-3).
The Supreme Court affirms, rejecting the argument that the Rule applies only to juror evidence regarding errors in the deliberations, and not juror evidence used to prove what happened during another part of the trial:
We hold that Rule 606(b) applies to juror testimony during a proceeding in which a party seeks to secure a new trial on the ground that a juror lied during voir dire. In doing so, we simply accord Rule 606(b)’s terms their plain meaning. The Rule, after all, applies “[d]uring an inquiry into the validity of a verdict.” Rule 606(b)(1). A postverdict motion for a new trial on the ground of voir dire dishonesty plainly entails “an inquiry into the validity of [the] verdict”: If a juror was dishonest during voir dire and an honest response would have provided a valid basis to challenge that juror for cause, the verdict must be invalidated. See McDonough [Power Equipment, Inc. v. Greenwood], 464 U.S. [548,] 556 [(1984)]. (Slip op. at 3-4).
Warger … would restrict Rule 606(b)’s application to those claims of error for which a court must examine the manner in which the jury reached its verdict—claims, one might say, involving an inquiry into the jury’s verdict. But the “inquiry” to which the Rule refers is one into the “validity of the verdict,” not into the verdict itself. The Rule does not focus on the means by which deliberations evidence might be used to invalidate a verdict. It does not say “during an inquiry into jury deliberations,” or prohibit the introduction of evidence of deliberations “for use in determining whether an asserted error affected the jury’s verdict.” It simply applies “[d]uring an inquiry into the validity of the verdict”—that is, during a proceeding in which the verdict may be rendered invalid. Whether or not a juror’s alleged misconduct during voir dire had a direct effect on the jury’s verdict, the motion for a new trial requires a court to determine whether the verdict can stand. (Slip op. at 8-9).
Nor is the Court swayed by the argument that its reading of Rule 606(b) insulates verdicts rendered by biased juries. Given the “clarity of both the text and history” of the Rule, “a party’s right to an impartial jury remains protected despite Rule 606(b)’s removal of one means of ensuring that jurors are unbiased. Even if jurors lie in voir dire in a way that conceals bias, juror impartiality is adequately assured by the parties’ ability to bring to the court’s attention any evidence of bias before the verdict is rendered, and to employ nonjuror evidence even after the verdict is rendered.” (Slip op. at 10).
Finally, the juror testimony in this case didn’t fit into the “extraneous prejudicial information” exception in Rule 606(b)(2)(A) because it doesn’t derive from a source “external” to the jury. “‘External’ matters include publicity and information related specifically to the case the jurors are meant to decide, while ‘internal’ matters include the general body of experiences that jurors are understood to bring with them to the jury room,” (slip op. at 11); indeed, even “allegations of the physical or mental incompetence of a juror [are] ‘internal’ rather than ‘external’ matters.” (Slip op. at 12, quoting Tanner v. United States, 483 U.S. 107, 118 (1987)). Thus, while Whipple’s daughter’s accident may have affected her views about negligence liability for car crashes, it wasn’t extraneous because it didn’t provide her or the other jurors with specific knowledge of the case they were deciding. (Slip op. at 11).
The Seventh Circuit hasn’t taken a side in the circuit split resolved by this decision, but Wisconsin has—and it’s the side the Court now rejects. Specifically, in cases addressing § 906.06(2), which is “virtually identical to Rule 606(b),” the Wisconsin Supreme Court has held that “it is well established that sec. 906.06(2), Stats., and its federal counterpart, Rule 606(b), do not prevent jurors from testifying for purposes of determining whether a juror failed to reveal potentially prejudicial information during voir dire.” State v. Messelt, 185 Wis. 2d 254, 267, 518 N.W.2d 232 (1994); see also State v. Broomfield, 223 Wis.2d 465, 474-75, 589 N.W.2d 225 (1999). For this “well established” proposition, Messelt relied on cases from the Fifth and Ninth Circuits that are specifically noted by the Court (slip op. at 3) and then effectively overruled.
Messelt itself is obviously not overruled, as it involves state law, but it will be subject to challenge now that the Supreme Court has read Rule 606(b) differently and has undone the the federal cases Messelt relied on. The language of the two rules is no longer “nearly identical” after stylistic changes to Rule 606(b) in 2011, but those changes were not meant to affect the substance of the rule. Thus, a defense of Messelt‘s holding will obviously require an argument based on something other than textual differences—for instance, maybe the overlapping arguments made in support of Warger’s position in an amicus brief by law professors and in NACDL’s amicus brief. The gist of these arguments is that the history of the rule precluding juror testimony to impeach a verdict arose in England before American-style voir dire developed, and was intended only to shield the jury’s deliberations from scrutiny, and so does not extend to testimony about dishonesty during voir dire; moreover, given the central role that voir dire plays in exposing juror bias, applying the rule to testimony about voir dire is inconsistent with the right to a fair and impartial jury.
True, the Supreme Court rejected these arguments. But it did admit that “[t]here may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process. We need not consider the question, however, for those facts are not presented here.” (Slip op. at 10 n.3). Wisconsin accepted this even before Messelt, holding in State v. Marhal, 172 Wis. 2d 491, 497, 493 N.W.2d 758 (Ct. App. 1992), that:
There are … circumstances where juror prejudice is so strong and pervasive that fundamental fairness requires that the rule of testimonial incompetency give way. [State v. Shillcutt,] 119 Wis. 2d [788,] 804-805, 350 N.W.2d [686 (1984)]. This requires a showing that there was “‘such a magnitude of prejudice’ as to constitute ‘an obvious default of justice,’ or . . . such a ‘substantial likelihood’ that the defendant was prejudiced by the influence of racial bias in the jury room to ‘offend fundamental fairness’ or ‘violat[e] [sic] the plainest principles of justice.’” Id., 119 Wis. 2d at 805 … (citations omitted); see also Shillcutt v. Gagnon, 827 F.2d [1155,] 1159 [(7th Cir. 1987)] (Rule 906.06(2)’s prohibition against juror testimony gives way to due-process considerations upon a showing that “prejudice pervaded the jury room.”).
Perhaps arguments like those the amici made will fare better here because of the long-standing foundation Marhal provides. Time will tell.
As for the Court’s discussion of the extraneous information exception, Wisconsin law is the same. Extraneous evidence is “information which a juror obtains from a non-evidentiary source, other than the ‘general wisdom’ we expect jurors to possess. It is information ‘coming from the outside.’” Messelt, 185 Wis. 2d at 275. A juror’s life experiences, common sense or expertise on a certain subject does not constitute extraneous evidence. State v. Heitkemper, 196 Wis. 2d 218, 225-26, 538 N.W.2d 561 (Ct. App. 1995); State v. Poh, 116 Wis. 2d 510, 520-21, 343 N.W.2d 108 (1984). Thus, a statement evincing bias isn’t “extraneous” information. Shillcutt, 119 Wis. 2d at 794-95.