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Rocky Dietz v. Hillary Bouldin, USSC No. 15-548, cert. granted 1/19/16

Question presented:

Whether, after a judge has discharged a jury from service in a case and the jurors have left the judge’s presence, the judge may recall the jurors for further service in the same case.

Lower court decision: Dietz v. Bouldin, 794 F.3d 1093 (9th Cir. 2015)


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The federal circuit courts of appeal have split on the question presented. Two circuits have adopted the bright-line rule that, once the discharged jurors have left the judge’s presence, they cannot be recalled to clarify or reconsider their verdict. Four others—including the Ninth, in this case, and our own Seventh, in United States v. Marinari, 32 F.3d 1209 (7th Cir. 1994)—approach the question case by case, asking whether, even though the jury has been discharged and left the judge’s presence, there is evidence that the jurors were exposed to outside influence; if the answer is “yes,” they can’t be recalled; otherwise, they can. The Court’s decision in this case will resolve this circuit split.

State courts have similarly split on this question, though according to the cert. petition (at 14) most have adopted the bright-line rule: Once discharged and out of the judge’s presence and control, no recall and no further service. Wisconsin seems to be in the majority camp. There is a criminal case, State v. Cartagena, 140 Wis. 2d 59, 63, 409 N.W.2d 59 (Ct. App. 1987), citing Koch v. State, 126 Wis. 470, 483, 106 N.W. 531 (1906), and an old civil case, Victor Sewing Machine Co. v. Heller, 44 Wis. 265, 274 (1878), saying that correction or clarification of the verdict by the jury is allowed as long as the jurors have not “separated.” Admittedly, though, what these cases mean by “separated” is not crystal clear; maybe there’s an argument it means “departed so far from the judge’s presence and control that they were susceptible to outside influence,” which would leave open the possibility Wisconsin courts could entertain tests like that adopted in Marinari.

Whether the Court’s decision in this case will impact the split in the state courts depends on whether it is based on an interpretation of federal civil and criminal procedure rules or on the Sixth and Seventh Amendment rights to a jury trial. And whatever the basis for the decision, it will be addressing a situation more likely to come up in civil cases (such as this one) than criminal cases. The former use more special verdicts, providing more opportunity for juror confusion and inconsistent verdicts; the latter more commonly present general verdicts of guilty or not guilty, and even the special verdicts (for instance, property value in theft cases) don’t usual cause confusion. Of course, as Cartagena shows, the issue can arise in criminal cases, too, so this decision may come in handy for criminal defense lawyers someday.

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