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JURY MISCONDUCT AND POST TRIAL JUROR INTERVIEWS The right to a fair trial before a panel of impartial jurors based on evidence developed at trial is well-established principle of American jurisprudence. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L. Ed.2d 751 (1961). The importance of preserving the santicity of a jury verdict was first emphasized by the Supreme Court in McDonald v. Pless, 238 U.S. 264, 267-268, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915) has been relied upon by successive courts. In McDonald the court stated (238 U.S. at 267-268):
If, after verdict, counsel wishes to contact jurors on his or her case, what rule apply depend on what court the case was tried in, and, if in state court, on his or her or the presiding judge’s interpretation of the juror’s oath The relevant rule and statute are:
OATH FOR JURORS IN CRIMINAL CAUSES.
OATH FOR JURORS IN CIVIL CAUSE.
Some judges interpret the jurors’ oath in civil and criminal cases to preclude any post- verdict discussion whatsoever about the case by jurors with anyone. This appears to be minority interpretation, and with good reason. Although the Rules of Professional Conduct approved effective October 1, 1986 do not directly cover the subject of post-verdict juror contract, the prior Code of Professional Responsibility expressly covered it in EC 7-29 and DR 7-108. The Code of Professional Responsibility was repealed with the adoption of the Rules of Professional Conduct. Rule 3.5 of the Rule Of Professional Conduct provides as follows: Rule 3.5 Impartiality and Decorum of the Tribunal
In the Federal Court, the District Of Connecticut judges adopted, effective May 1, 1985, the following rule covering post-verdict jury contact: Rule 12(f) Secrecy of Jury Deliberations
A new amendment to Rule 12(f), which the District Court judges adopted effective May 1, 1987 (published 12 CLT 21, pp. 36-37, June 1, 1987) reads as follows: Rule 12(f) Secrecy of Jury Deliberations
If proceedings are initiated by motion or petition based on juror misconduct, in general the burden of proving prejustice is on the party who seeks the mistrial or the new trial, unless opposing party has participated in the misconduct. The burden of proving prejustice frequently determines the outcome. The cases examined in this note necessity refer to the burden, but the reader is reminded of the prosecution’s "probably harmless" burden in criminal cases implicating constitutional rights. Some juror misconduct is characterized as presumptively prejudicial, but not all such misconduct. Hearings are usually necessary to determine the effect on the verdict. The presumption of prejudice generally does not apply in civil cases, as noted hereinafter, where the party prosecuting the motion or petition has the burden of showing "probable harm," unless of course the misconduct is attributable to the other side. The cases examined focus on the decisions and rules covering post-verdict jury contact. While the U.S. Supreme Court has found certain conduct involving jurors inherently prejudicial, in other circumstances the court has mandated that the trial court have an evidentiary hearing to review the evidence of misconduct and to determine the impact of the circumstances on the juror and whether or not the jury was prejudiced or influenced by any improper communication or contact. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). The Remmer decision acknowledges and further emphasizes the importance placed on preserving the integrity of the jury system (347 U.S. at 229) :
See also Parker v. Gladden, 385 U.S. 363, 87 S.Ct 468, 17 L.Ed.2d 420 (1966) . The presumption of prejudice, although rebuttable, is a rigid presumption. In Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) , the Supreme Court considered the presumption of prejudice and burden of proof in instances of juror misconduct. The facts giving rise to claims of juror misconduct in the Phillips case pertained to a juror’s application for employment with the Office of the District Attorney prosecuting the case. Although the prosecuting attorneys were aware more than one week before the end of trial of the possible bias of the juror-job applicant, they determined that there was no need to inform the trial court of defense counsel of the juror’s job application and contacts with the District Attorney’s office. Defense counsel learned after trial of the possibility of juror misconduct. While the court in Phillips affirmed that the evidentiary hearing first required in Remmer v. United States, supra, was the proper remedy for allegations of juror partiality, the court interpreted that hearing as an opportunity for the defendant to prove actual bias. Phillips, supra, 453 U.S. at 215. It is not clear from Remmer that the burden of proof falls on the moving party to establish actual bias of a juror. While the Remmer court concedes that "the presumption is not conclusive [and] the burden rests heavily upon [the non-moving party] to establish, after a notice to and hearing of the [moving party] that such contact with the juror was harmless to the defendant." Remmer, supra, 347 U.S. at 229. The Remmer court determined that the trial court in its discretion should ascertain whether a juror was prejudiced or influenced in his or her decision. Subsequent federal law has established that Remmer is still good law and that Phillips does not shift the burden to the moving party to prove actual bias when seeking a new trial. U.S v. Littlefield, 752 F.2d 1429 (Cal., 1985); U.S. v. Delaney, 732 F.2d 639 (Ca.S.D., 1984); U.S. v. Hillard, 701 F.2d 1052 (Ca. N.Y. , 1983) ; U.S. v. Robinson, 756 F.2d 56 (8th Cir., 1985) . The federal law consistently relies upon the discretion of the trial judge for the determination of whether or not such a probability of prejudice exists as to deem the verdict inherently lacking in due process. Estes v. Texas, 381 U.S. 532, 542, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) . This Methodology comports with the requirements of Federal Rule of Evidence 606(b) which protects from disclosure any matter or statement made during deliberations as well as the effect of any such statement on a juror’s mind or any investigation into a juror’s mental processes. The rule states: Rule 606(b). Competency of Juror as Witness.
The Federal Rule is sufficiently broad to allow case by case determinations is adaptable to the various types juror misconduct and the different treatment they require. The potential for prejudice depends somewhat on the type of misconduct alleged; whether it is extraneous prejudicial information, improper outside contacts, misuse of evidence in the jury room, use of averaging to arrive at a quotient verdict, or prematurely expressed opinions of the verdict by the jurors. The federal rule and federal case law attempt to balance the court’s strong interest in preserving the sanctity of jury deliberations and the finality of the verdict against the a party’s interest in a fair trial. The danger of post-trial juror interviews arises where they are unsupervised by the court and impermissibly broad in scope so as to constitute a fishing expedition for evidence of misconduct. In a large number of district federal courts, post-verdict interviews of jurors by parties of their counsel are required to be supervised by the court. A lesser number of district courts prohibits the questioning of jurors by non-parties. Local Rule 12(f) for the District of Connecticut is among the most strict and commands jurors not to respond to post-verdict interviews. The amendment to Local Rule 12(f) is intended "to strengthen the prohibition against interviewing jurors." 13 Conn. L.Trib. 13, p. 3, 19 (March 30, 1987). The federal courts have struggled with balancing the first amendment rights of the press to obtain information without prior restraint and the importance of judicial supervision of post-verdict juror interviews in order to assure the litigant’s rights to a fair trial. A trio of cases in the Fifth Circuit shed some light on the permissible parameters of local federal court rules. In 1982, In re Express - News Corp., 695 F.2d 807 (5th Cir., 1982 ) , the court rejected as overly broad a local court rule preventing post-verdict juror interviews absent a showing of good cause. The Express News case emphasizes the importance of narrowing the rules prohibiting post-verdict juror interviews so as to prevent jurors from discussing the opinions and votes of other jurors but makes a distinction between informational interviews by the press and interviews by litigants which may threaten the finality of the verdict. In U.S. v. Harrelson, 713 F.2d 1114 (5th Cir., 1983), the court relied upon its discretion to limit access and prohibit repeated inquiries by the media where jurors were reluctant to be interviewed and were asked to comment on the votes of other jurors. Most recently in Haeberle v. Texas International Airlines, 739 F.2d 1019 (5th Cir., 1984) ,the court prohibited the litigants from interviewing jurors. In Journal Publishing Co. v. Mechem, 801 F.2d 1233 (10th Cir., 1986) Journal Publishing Company petitioned the 10th Circuit Court of Appeals for a writ of mandamus directing the trial judge to dissolve a post-trial order prohibiting press interviews with certain jurors. The jurors had served in a controversial trial claiming civil rights violations by certain city officials of Albuquerque, New Mexico. The trial court, at the conclusion of the trial, had admonished the jurors :
Because of the newsworthy nature of the trial, Journal Publishing Company wanted to interview the jurors in the case. The newspaper wrote to the trial judge informally and requested that he rescind or modify his order prohibiting communication with former jurors. The trial judge refused this request, after which the newspaper filed a motion for permission to interview the jurors. This motion was not ruled upon by the trial judge, so the newspaper petitioned the Court of Appeals for writ of mandamus against the judge. The court noted preliminary (801 F.2d at 1236):
The court then distinguished cases involving contact with jurors by news media from cases dealing with contact by parties or the attorneys who took part in trial. The court noted that the media has less incentive to upset a verdict than does a losing party or an attorney, and that while a court may broadly proscribe attorney and party contact with former jurors it "does not have the same freedom to restrict press interviews with former jurors." 801 F.2d at 1236. The court held (801 F.2d at 1236) :
The court concluded that the trial judges’ order restricting press contact with former jurors was impermissibly overboroad. It criticized the order as containing no time or scope limitations, and encompassing every possible juror situation. It indicated that the order would have been constitutionally permissible if the jurors had been told that they may refuse interviews and seek the aid of the court if interviews persist after they express a reluctance to speak. The court also stated that the jurors could have been told that they were not to discuss specific votes and specific opinions of other jurors, as these restrictions serve to encourage free deliberation in the jury room. However, the court could not issue a sweeping restraint forbidding all contact between the press and former jurors without a compelling reason. In Connecticut a petition for a new trial is addressed to the sound discretion of the trial court and "will be granted except on substantial grounds". State v. Asherman, 193 Conn. 695, 735, 478 A.2d 227 (1984) ;Bernier v. National Fence Co., 176 Conn. 622, 628, 410 A.2d 1007 (1979) . In considering a motion or petition for new trial based on juror misconduct, the long-standing rule in Connecticut is that "however improper such conduct may have been, yet if it does not appear that it was occasioned by the prevailing party, or anyone on his behalf; if it does not indicate any improper bias upon the juror’s mind, and the court cannot see, that it either had, or might have had, an effect unfavorable to the party moving for a new trial; the verdict ought not to be set aside." State v. Asherman, supra, 193 Conn. at 735-736. See also Pettibone v. Phelps, 13 Conn. 445, 450 (1840). In Williams v. Salamone, 192 Conn. 116, 470 A.2d 694 (1984) , the court adopted a standard which requires the determination of "whether the misbehavior [of a juror] is such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror." (emphasis added). In Williams, despite the court’s admonitions, the jurors conversed prior to deliberation concerning the credibility of certain witnesses and discussed the evidence. The court determined that "in civil cases the burden is properly placed on the moving party to show prejudice toward him as a result of juror misconduct, at least where the opposing party has no part in the incident." Williams, supra, 192 Conn. at 119. See also Hammil v. Neikind, 171 Conn. 357, 360, n. 5, 370 A.2d 959 (1976); Pettibone v. Phelps, supra. The court in Williams endorsed the "more prudent and reasonable test: ‘whether the misbehavior is such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror’" . Williams, supra, 192 Conn. at 122. In United States v. Miller, 284 F.Supp. 220 (1968) aff’d. 403 F.2d 77, the United States District Court, District of Connecticut, Confronted the question of "how the chart a course that permits jurors’ testimony to be obtained to establish improper communications while at the same time insulting them from the harassment of unlimited post-trial inquiry." The court relied upon the reasoning of United States v. Crosby, 294 F.2d 928 (2d Cir. 1961) cert. denied, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962) in restraining the defendant and his counsel from interviewing jurors to impeach the verdict. Quoting Circuit Judge J. Joseph Smith, the court held (284 F. Supp. at 227):
There are a few Connecticut cases that warrant comment. In Josephson v. Mayers, 180 Conn. 302, 311-312, 429 A.2d 877 (1980), a juror had sent a letter to plaintiff’s counsel immediately after the verdict indicating that she and another juror assented to the verdict conditionally. On the basis of this letter, the plaintiff moved for a new trial claiming that the assent to the verdict by the two jurors mentioned in the letter was acquired by the misconduct of the foreman in failing to deliver a note to the trial judge which those two jurors requested him to do. The trial court, Arthur Healey, J., refused to permit the jurors to take he witness stand, and required, in order to get at the issue, that the plaintiff make an offer of proof by stating her precise claims. Plaintiff’s counsel stated that he intended to elicit testimony from the jurors regarding the contents of the note and its import on the verdict as rendered. In the offer of proof, the plaintiff indicated that the purpose of the testimony regarding the events surrounding the note was to establish enough facts which would indicate that "had the note been submitted that there would have been a hung jury in the case." Josephson, 180 Conn. at 310. The court, after reviewing the authorities, held that the exclusion of the evidence by the trial court was correct. It noted that the principles of law applicable are the same whether the misconduct involves inquiries into extraneous influences on the jury or where the alleged misconduct occurs wholly within the jury room. 180 Conn. at 311. The court held that the fact that the jurors’ verdict was conditional "is not admissible since it clearly implicates the mental processes of that juror." 180 Conn. at 311-312. The rule that a juror cannot give evidence for the purpose of impeaching his own verdict, known as the Lord Mansfield Rule, was first stated in Vaise v. Deleval, 1 TR 11 (KB 1975). In that case, Lord Mansfield held that evidence of juror misconduct or mistake could not be received from a juror to set aside his own verdict. This rule has been modified in Connecticut, Which permits evidence from jurors for he purpose of avoiding a verdict to show any matter occurring during the trial or in the jury room "which does not necessarily inhere in the verdict itself." Allison v. State, 168 Conn. 541, 551, 363 A.2d 49 (19750) ; Josephson v. Myers, 180 Conn. 302, 469 A.2d 877 (1980) ; Hamill v. Neikind, 171 Conn. 357, 361, 370 A..2d 959 (1978) ; Tait v. LaPlante, Connecticut Evidence, Section 12.14. In Allison v. State, supra, 168 Conn. at 551, quoting from Wright v. Illinois v. Miss. Telephone Co., 20 Iowa 195, 210, the Supreme Court gave examples of evidence from a juror which would not inhere in the verdict and would be admissible:
In two recent Supreme Court decisions, Mcnamee v. Woodbury Congregation of Jehovah’s Witnesses, 193 Conn. 15, 475 A.2d 262 (1984) and 194 Conn. 645, 484 A.2d 940 (1984), evidence was allowed concerning a verdict determined by aggregation or by lot rather than by deliberation. This so-called "quotient" verdict is condemned by all courts, and evidence as to the manner in which the jury arrived at the verdict was admitted. Examples of evidence from a juror which would not be admissible are also set out in Allison v. State, supra, 168 Conn. at 550, n.3. and discussed in 8 Wigmore (McNaughton Rev.) Evidence, Section 2349. These include the following:
In Josephson, supra, 180 Conn. at 311-312, the court explained that testimony which clearly implicates the mental processes of a juror inheres in the verdict and cannot be admitted. The bottom line is that the deliberative process of the juror is protected, and evidence attempting to get at it is excluded. Footnote No. 1 MD Ala R. 4 SD Miss. R. 16 (B) ND Ala R. 10 ED Mo. R. 16(D) SD Ala R. 12 D.N. J. R. 19 (B) D. Ariz R. 12 (b) S.D. Ohio R. 5. 5 D. Conn. R. 12 (f) ND Okla. R. 8 D. D. C. R. 1-28 (c) Drir 22a (g) (3) D.Kan. R. 23A WD Tenn. R. 19 ED La R. WD Tex R. 500-2 MD La R. ED Tex R. 10 (b)-(c) WD La A. ND Tex R. 8.2. (d) MD R 25A WD Wash R. Criml. 41 (b) ND Miss R G-2 (2) N.D. W.Va R. 1-15 S. D. W.Va. R. 1-18 D.Wyo. R. 18 (c) Footnote No. 2 D.Conn. R. 12 (f) E.D.La R. 14.5 M.D.La R. 16(A) (5) W.D.LaR. 16 D.N.J.R. 19(B) N.D. Okla. R. 8 |