Federal Evidence Review

In possession with intent to distribute cocaine trial, a person excused for cause as a member of the jury venire was allowed to testify before the jury sworn from that venire; FRE 606(a) is “not applicable to veniremen” and although “a close case” was presented, the defendant failed to “develop[ ] [the] record with evidence of real harm” which might have changed the result, in United States v. Kills Enemy, 3 F.3d 1201 (8th Cir.), cert. denied, 510 U.S. 1138 (1993)

FRE 606(a) disqualifies a juror from testifying before a jury on which the juror serves as a member. Unlike its counterpart FRE 606(b), which bars juror testimony to impeach the jury verdict, situations in which FRE 606(a) might be applied are largely absent from the cases. An Eighth Circuit case demonstrates why the rule rarely comes into play.

In the case, during a search of defendant Kills Enemy’s home, officers located “eight bindles of cocaine” as well as “other items ... that appeared to be paraphernalia associated with cocaine and marijuana, and a letter to Kills Enemy proposing a trade of marijuana cigarettes for marijuana seeds.” During jury selection, one prospective juror, Amos American Horse, “was excused for cause when he stated that Kills Enemy was his friend and former neighbor.” The government made contact with American Horse. Kills Enemy, 3 F.3d at 1204. At trial, over the defendant’s objection, the trial court admitted other act evidence under FRE 404(b) from “Amos American Horse, that he had bought marijuana from Kills Enemy up to the night before Kills Enemy was arrested on the cocaine charge, and that Kills Enemy had supplied him with cocaine gratuitously.” Kills Enemy, 3 F.3d at 1203.

The jury convicted the defendant. On appeal, he contended that admission of the other act evidence was erroneous because witness American Horse had been a member of the jury venire. Specifically, the defendant contended that under FRE 606(a), the testimony was not admissible because American Horse “had served on the venire with persons who became the jurors in this case, and he may have become acquainted with them or otherwise made an impression, either favorable or unfavorable, on the jurors.” Kills Enemy, 3 F.3d at 1204.

The Eighth Circuit noted that a “close case” was presented, but not on the grounds asserted by the defendant. The circuit noted that “Rule 606 is not applicable to veniremen, as opposed to jurors.” As a result, the rule did “not require” reversal. Kills Enemy, 3 F.3d at 1204. Nonetheless, the circuit expressed its “concern about the government’s actions in calling American Horse to the stand. Though we have nothing but speculation in this case about the possible effect on jurors in calling a former venireman to testify, we consider this a close case. In a case with a developed record with evidence of real harm, the result might well be different.” While the circuit did not elaborate its analysis under FRE 606(a), the circuit suggested that had the defendant been able to show harm, his constitutional right to a fair trial might have come into play to provide relief.

As Kills Enemy suggests, while the scope of FRE 606(a) is rather narrow, it’s inapplicability does not prevent an application of a defendant’s constitutional right to a fair trial if specific harm can be demonstrated from a witness’s testimony.