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SCOTUS rejects “Humpty Dumpty theory of the jury”

Dietz v. Bouldin, USSC No. 15-458, 2016WL3189528 (June 9, 2016), affirming Dietz v. Bouldin, 794 F.3d 1093 (9th Cir. 2015); SCOTUSblog page (includes links to briefs and commentary)

In a 6-2 decision, SCOTUS holds that a federal district court has limited inherent authority to rescind a jury discharge and to recall the jury for further deliberations in order to address an error in its verdict. The court specifically limits this decision to civil cases.

At common law, once a court discharged a jury and its members were able to interact with the public, they could not be recalled to amend the verdict. See e.g. Little v. Larrabee, 2 Me 37, 40 (1822). Because there is no federal rule on point, the circuits developed different practices. Not anymore.

Under the new rule, a district court may rescind a discharge order and reassemble a jury to correct an error in lieu of ordering a new trial if doing so will not prejudice the parties. However, the court must first determine whether, during the discharge period, any juror has been directly tainted. (Slip op. at 8.) It should consider; (1) the length of delay between the discharge and recall; (2) whether any jurors spoke to anyone (including press, court staff, attorneys, friends or relatives) after discharge; (3) the public reaction to the verdict (gasps, crying, cheers); (4) whether jurors accessed their smartphones while discharged (i.e. did they text something about the case, check a fact on Google or read reactions on Twitter). (Slip op. 8-10).

This was a personal injury case where the defendant admitted liability and stipulated that the plaintiff incurred $10,136 in medical expenses. The jury only had to decide whether to award more damages. It returned a verdict for the plaintiff but awarded $0 in damages. The judge discharged the jury, realized that the verdict was legally impermissible, and recalled the jurors.

Dietz argued, among other things, that a jury is irrevocably broken once the jurors are told they are free to go. SCOTUS disagreed:

We reject this “Humpty Dumpty” theory of the jury. Juries are of course an integral and special part of the American system of civil justice. Our system cannot function without the dedication of citizens coming together to perform their civic duty and resolve disputes.

But there is nothing about the jury as an entity that ceases to exist simply because the judge tells the jury that they are excused from further service. A discharge order is not a magical invocation. It is an order, like any other order.

And, like any order, it can be issued by mistake. All judges make mistakes. (Even us.) (Slip op. at 12).

Applying the new rule and multi-factor test to this case, SCOTUS held that the district court did not abuse its discretion by recalling the jury because:

The jury was out for only a few minutes after discharge. Only one juror may have left the courthouse, apparently to retrieve a hotel receipt. The jurors did not speak to any person about the case after discharge. There is no indication in the record that this run-of-the-mill civil case—where the parties agreed that the defendant was liable and disputed damages only—generated any kind of emotional reaction or electronic exchanges or searches that could have tainted the jury. There was no apparent potential for prejudice by recalling the jury here. (Slip op. 10).

The dissenting opinion, written by Thomas and joined by Kennedy, would stick with the common law rule because the risk of discharged jurors encountering prejudicial information about the case–especially now in the age of cell phones and the internet–is just too great. The dissent also predicts that the majority’s multi-factor test will only produce more litigation testing the outer limits of each factor in the new multi-factor test.

Again, this decision does not apply to criminal cases because they raise additional concerns such as the attachment of the double jeopardy bar. (Slip op. at 10). As noted in our post on the cert grant in this case, a Wisconsin criminal decision, State v. Cartagena, 140 Wis. 2d 59, 409 N.W.2d 386 (Ct. App. 1987), states that once a jury has separated, its members cannot resume deliberations. SCOTUS’s decision here does not change that rule for criminal cases. See Koch v. State, 126 Wis. 470, 483, 106 N.W. 531 (1906) and also State v. Halmo, 125 Wis. 2d 369 373, 371 N.W.2d 424 (Ct. App. 1985).



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