Table of Authorities

Facts

Defendant 1 was found guilty on all charges concerning providing material support and lying to the FBI, with the case concerning Defendant 2 ending in hung jury. One of the jury members filed an affidavit stating racial bias and/or bringing extraneous information and/or material produced "outside" the jury room by a juror.

Issue

What kind of jury misconduct (if permissible) must be demonstrated to the Federal District Court in California to consider overturning a verdict and order a new trial based on jury misconduct.

Discussion

Since we are relying on the affidavit of the Ms. A, (Jury Member) the right of new trial depends on the admissibility of affidavit of Ms. A in evidence.

USCS Fed Rules Evid R 606 provides that:

"Rule 606. Competency of Juror as Witness

(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes."

In Hard v. Burlington N. R.R ., 812 F.2d 482 (9th Cir. 1987), it was held that;

"Rule 606(b) would appear to preclude testimony concerning the effect of a juror's bias on deliberations. However, assuming that voir dire is minimally adequate, a juror who is unwavering in his bias is likely to have lied during voir dire. Rule 606(b) applies to juror deliberations, but it does not apply to pretrial voir dire. Accordingly, evidence could be presented about the juror's lies on voir dire in an attempt to overturn a verdict."

In United States v. Caldwell , 83 F.3d 954, 1996 U.S. App. LEXIS 10173, it was held that;

"To prevail on claims of juror misconduct, a defendant must present evidence of juror misconduct that is not barred by the rule of juror incompetence and is sufficient to establish grounds recognized as adequate to overturn the verdict. Fed. R. Evid. 606(b), generally precludes the testimony of any juror regarding intra-jury communications, as well as the testimony of a non-juror regarding an intra-jury statement. Rule 606(b) has been interpreted to exclude all manner of juror statements, whether conveyed directly to the court by the juror or indirectly through a witness who overheard the statement. The rule's two exceptions allow testimony regarding extraneous prejudicial information and outside influences brought to bear on the jury"

United States v. Simpson , 950 F.2d 1519, 1991 U.S. App. LEXIS 28772, it was held that;

"Fed. R. Evid. 606(b) provides that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention, but a juror may not testify as to the effect of anything concerning the juror's mental processes in connection therewith."

United States v Castello (1981, WD Tex) 526 F Supp 847.

Court must conduct inquiry into prejudicial potential of extraneous material on average juror; objective facts, therefore, become focus of inquiry; considerations relevant to inquiry include: (1) whether extrinsic material was actually received, and if so, how it was received; (2) how long it was available to jury; (3) extent to which jury discussed and considered material; (4) whether material intruded before or after jurors reached verdict and, if before verdict was reached, at what point in deliberations it occurred; and (5) other matters that court feels may bear on issue of reasonable possibility that verdict was affected; once verdict has been affected by extrinsic material, new trial is warranted if there is reasonable possibility that prejudice resulted from extrinsic material.

In Johnson v Hunter (1944, CA10 Kan) 144 F2d 565, it was held that

"Although charge that black juror was intimidated by 11 white jurors and agreed to verdict by reason of such intimidation would invalidate verdict if it were true, such showing cannot be made by black juror himself under general rule that evidence of jurors is not admissible to impeach their verdict."

In United States v Straach (1993, CA5 Tex) 987 F2d 232, 37, it was held that;

"Two jurors' post-trial statements that they had maintained through jury's deliberations that defendant was not guilty, but had been pressured into compromising their verdicts could not count as outside influence."

It has been held in Marcavage v. Bd. of Trs. of Temple Univ. of the Commonweal ..., 400 F. Supp. 2d 801, 2005 U.S. Dist. LEXIS 29138, that;

"Extraneous influence has been found to include publicity received and discussed inside the jury room, consideration by the jury of evidence not admitted in court, and communications or other contact between jurors and third persons, including contacts with the trial judge outside the presence of the defendant and counsel. Extraneous prejudicial information does not permit a juror to testify as to the actual effect of these matters on the testifying juror or any other juror but only as to the existence of extraneous prejudicial information."

It was further held tha;

"Fed. R. Evid. 606(b) does not permit a juror to testify as to the actual effect of these matters on the testifying juror or on any other juror. Testimony regarding the impact of outside influence would necessarily be testimony regarding the deliberative process, which is clearly prohibited by Fed. R. Evid. 606(b)."

The court observed that;

While Fed. R. Evid. 606(b) also provides an exception for testimony regarding the existence of outside influence on a jury, the scope of "outside influences" is limited and applies only to those influences outside the evidence presented at trial, such as prejudicial publicity, pressure placed on jurors from outside sources, use of extrajudicial information. Additionally, evidence of discussions among the jury, intimidation or harassment of a juror by another, along with other intra-jury influences fall within the prohibition of the rule not the exception and cannot be considered to impeach a verdict.

The court observed that;

"Fed. R. Evid. 606(b) generally precludes testimony concerning the effect of a juror's racial or other bias on deliberations. Such biases should be uncovered when the jury is being selected. However, assuming that voir dire is minimally adequate, jurors who are persistent in their bias are likely to have lied during voir dire. Lies during voir dire would be material misrepresentations because prospective jurors who answer truthfully regarding their bias likely will be challenged for cause. Fed. R. Evid. 606(b) applies to juror deliberations, but it does not preclude an inquiry into whether a juror lied during voir dire."

The court held in this case that

"Litigants are entitled to fair trials although not perfect trials. A fair trial necessarily includes an impartial trier of fact, a jury willing and able to decide a case based solely on the evidence admitted at trial. The right to an impartial jury is protected by the voir dire examination, which is intended to expose potential biases. An inquiry into whether a juror lied during the voir dire questioning may necessitate a new trial. The moving party must show that the juror failed to answer honestly a material question and then show that a truthful response would have provided a valid basis for a challenge for cause. However, this only addresses the right of a party to obtain a new trial upon making a particular showing, not the admissibility of evidence to make that showing."

"The Federal Rules of Evidence bar juror testimony as to any matter or statement occurring during the course of the jury's deliberations even when the testimony is not being offered to explore the jury's decision-making process in reaching the verdict."

In this case United States v Rutherford (2004, CA9 Nev) 371 F3d 634, 93 AFTR 2d 2618, the court held;

"In jury tampering claim, court may not, under Fed. R. Evid. 606(b), consider testimony regarding affected juror's mental processes in reaching verdict--for example, juror cannot testify to whether outside influence caused him to change his vote from innocent to guilty--but court can and should consider effect of extraneous information or improper contacts on juror's state of mind, juror's general fear and anxiety following such incident, and any other thoughts juror might have about contacts or conduct at issue; in that regard, juror's testimony concerning his fear that individuals would retaliate against him if he voted to acquit (or convict) would be admissible, although his statement that he actually cast his vote one way or other because of that fear would not."

In United States v. Henley , 238 F.3d 1111, 2001 U.S. App. LEXIS 1726, it was held that;

"Fed. R. Evid. 606(b) precludes any testimony by a juror as to any matter or statement occurring during the course of deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. It is clear that the rule permits jurors to testify about whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Fed. R. Evid. 606(b)."

In Erikson v. Rowland , 1993 U.S. App. LEXIS 9999, it was held that;

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Fed. R. Evid. 606(b)."

It has been in United States v. Wilson , 2000 U.S. App. LEXIS 18151, that

"Where extraneous information is imparted, as when papers bearing on the facts get into the jury room without having been admitted as exhibits, or when a juror looks things up in a dictionary or directory, the burden is generally on the party opposing a new trial to demonstrate the absence of prejudice, and a new trial is ordinarily granted if there is a reasonable possibility that the material could have affected the verdict."

In United States v. Rosenthal , 2006 U.S. App. LEXIS 10407, it was held that

"The United States Court of Appeals for the Ninth Circuit juror-misconduct precedents distinguish between introduction of extraneous evidence to the jury and ex parte contacts with a juror that do not include the imparting of any information that might bear on the case. Extraneous evidence cases involve not only the introduction of "evidence" per se but the also submission of extraneous information (for example, a file or dictionary) to the jury. Ex parte contacts, by contrast, generally do not pertain to any fact in controversy or any law applicable to the case. Where ex parte communication is involved, the district court, upon finding a reasonable possibility of prejudice, must hold a fair hearing. At the hearing, the defendant generally must demonstrate actual prejudice, without which a new trial is not warranted. Extraneous information cases, by contrast, call for more searching review; the court grants a new trial if there is a reasonable possibility that the material could have affected the verdict. Unlike ex parte cases, the burden is generally placed on the party opposing a new trial to demonstrate the absence of prejudice. Although the presence of extrinsic material does not always require a new trial, the court carefully reviews the circumstances and nature of the material to ensure that jurors deliberate without undue outside pressure or influence."

In Caliendo v. Warden of Cal. Men's Colony , 365 F.3d 691, 2004 U.S. App. LEXIS 6416, it was held that;

"The unauthorized juror communication rule applies when an unauthorized communication with a juror crosses a low threshold to create the potential for prejudice. A communication is possibly prejudicial, not de minimis, if it raises a risk of influencing the verdict. Prejudice is presumed under these circumstances, and the defendant's motion for a new trial must be granted unless the prosecution shows that there is no reasonable possibility that the communication will influence the verdict."

So in the above stated circumstances, the evidence of juror is admissible and new trial can be ordered.