Consensus On Bible As An Extraneous Influence On Jury Deliberations Under The Sixth Amendment

On habeas corpus review of capital murder trial, state jury's consultation of Bible passages during the sentencing phase violated the Sixth Amendment Fair Trial and Confrontation Clause rights (where some jurors together looked through a Bible in the jury room and one pointed out to the others to a specific part suggesting that one who strikes and kills another with an object, like the petitioner, had to be executed, and jurors probably compared applicability of the facts of the case with this biblical passage); however, the error was harmless beyond a reasonable doubt as the petitioner did not show it had a substantial and injurious effect on the jury verdict of death, in Oliver v. Quarterman, 541 F.3d 329 (5th Cir. Aug. 14, 2008)(No. 06-70006)

FRE 606(a) prohibits juror testimony attacking or supporting a verdict. One prominent exception to the rule is set out in FRE 606(b), which concerns the exposure of jurors to extraneous influences. This exception permits juror testimony regarding the jury's exposure to “extraneous prejudicial information” or “outside influence.” A repeated pattern of the courts' struggles with the FRE 606(b) exception concerns a jury's exposure to common information that could be applied to the case but that had not been admitted into evidence. This pattern often sets up one of its most dramatic conflicts when it involves juror consultation of the Bible during the trial. Two years ago, the Fifth Circuit conducted a review of how the circuits had treated this issue.

In the case, defendant Oliver sought habeas corpus relief after exhausing his direct appeals on his state conviction and sentencing to death for murder during commission of a burglary. The defendant's efforts on direct review of his sentence was based on the argument that the jury improperly consulted the Bible during its deliberations, particularly as at least one biblical passage was read by the jurors and considered to "specifically describe[ ] the facts of his case. The state court conducted an evidentiary hearing regarding this issue. Several jurors testified, such as juror:

"Kenneth McHaney [who] stated that during the jury's deliberations, one juror, Kenneth Grace, read the Bible aloud to a small group of jurors in the corner of the jury room. McHaney also testified that fellow juror Donna Matheny mentioned to him that the Bible contained a passage discussing who is a murderer and who should be put to death, and that he asked Matheny if he could read her Bible, which Matheny had highlighted. McHaney recalled reading verses pertaining to the importance of obeying the law of the land, the commandment that 'thou shalt not kill,' and the passage Matheny pointed out that discussed who is a murderer and who deserves a death sentence. In particular, he recalled reading a passage that says that if a man strikes someone with an iron object so that he dies, then he is a murderer and should be put to death. McHaney also witnessed juror Rhonda Robinson reading the same passage from the Bible. McHaney believed that there were approximately four Bibles in the jury room, but he could not recall the exact number. He said that many jurors had Bibles with them because they went to church or Bible study at night."
Oliver, 541 F.3d at 331-32 (footnotes omitted).

After the evidentiary hearing, the trial court denied the defense motion for a new trial as a result of the alleged juror misconduct. This was affirmed by the state appellate court, which noted that the petitioner had not "met his burden of showing outside influence. While there was testimony that at least one Bible was brought to the jury room and some passages were read by a few jurors, every juror who testified stated that neither the Court nor another juror claimed that the Bible should be considered as law or evidence in the case." Oliver, 541 F.3d at 336-37. The federal district court did not upset this result and refused to issue a writ of habeas corpus. Ultimately the Fifth Circuit considered Oliver's challenge to the use of a bible by jurors under the Sixth Amendment. It found that it was an error, however the writ would not issue because the error in this instance proved harmless.

The circuit noted a number of other circuits had considered the role of a Bible in a jury's deliberations and that the Second, Third, Seventh, Eighth, Tenth, and D.C. Circuits had not addressed the issue. Of the circuits considering the matter, only the Fourth Circuit found use of the Bible not extraneous. Among the cases addressing the presence of a bible in the jury's discussion included:

  • First Circuit: United States v. Lara-Ramirez, 519 F.3d 76, 88 (1st Cir. 2008) (presence of a Bible in the jury room was an external influence on the jury's deliberations and that the Bible is no different from any other type of external influence that enters the jury's conscience; district court erred in "treat[ing] the Bible in the jury room as qualitatively different from other types of extraneous materials or information that may taint a jury's deliberations." )
  • Sixth Circuit: Coe v. Bell, 161 F.3d 320, 351 (6th Cir. 1998)(the presence of a Bible in the jury room is an external influence that might prejudice the jury's deliberations; distinguishing the situation of a prosecutor invoking the Bible during his closing argument from the cases where the jury actually has a Bible in the jury room; "there is error in [the cases involving a Bible in the jury room] not because the book was the Bible, but because the book was not properly admitted evidence.")
  • Ninth Circuit: Fields v. Brown, 503 F.3d 755, 781-82 (9th Cir. 2007) (en banc) (juror made notes "for" and "against" the death penalty based on his review of the Bible at home and then brought those notes into the jury room; "[W]e do not need to decide whether there was juror misconduct because even assuming there was, we are persuaded that [the juror's notes] had no substantial and injurious effect or influence in determining the jury's verdict."
  • Eleventh Circuit: McNair v. Campbell, 416 F.3d 1291, 1307-08 (11th Cir. 2005) (during penalty stage of trial, jury foreman brought a Bible into the jury room during deliberations and read aloud from it, as well as leading other jurors in prayer; "[b]ecause it is undisputed that jurors in the guilt phase of McNair's trial considered extrinsic evidence during their deliberations, our analysis focuses on whether the State can rebut the resulting presumption of prejudice" and concluding that the state had rebutted the presumption of prejudice as there was no evidence that the "innocuous" Bible passages read to the jurors had the effect of influencing the jury's decision.)

According to the Fifth Circuit in Oliver, only one circuit did not find a juror's use of the Bible during deliberations as extraneous. In Robinson v. Polk, 438 F.3d 350, 357-58, 64 (4th Cir. 2006) the Fourth Circuit examined an appeal involving a conviction that was obtained after a juror asked the bailiff for a Bible. The evidence showed that the juror read several passages out loud in the hearing of other jurors while in the jury room. Citing such passages as "an eye for an eye," the juror tried to convince the other jurors to vote for a death sentence; "[R]eading the Bible is analogous to the situation where a juror quotes the Bible from memory, which assuredly would not be considered an improper influence."; "[P]recisely because the Bible occupies a unique place in the moral lives of those who believe in it, its teachings cannot blithely be lumped together with a private communication, contact, or tampering with a juror without clear guidance from the Supreme Court."

The conclusion reached by the Fifth Circuit after this review of authorities was to join the majority position. The Fifth distinguished its position from the restrictive one of the Fourth by noting that "the Fourth Circuit's cases are distinguishable in that they all involved a juror reading general Biblical statements, as opposed to a command that directly tracked the specific facts of those cases." In examining the majority circuits, the Fifth decided that their authorities:

"[P]ersuades us that when a juror brings a Bible into the deliberations and points out to her fellow jurors specific passages that describe the very facts at issue in the case, the juror has crossed an important line. The Supreme Court counsels us that a jury may not consult material that is outside the law and evidence in the case. The Bible passages in question here were not part of the law and evidence that the jury was to consider in its deliberations. Moreover, the jurors did not simply discuss their own understanding of religious law and morality or quote Bible passages from memory to aid the discussion. Instead, the jurors referenced a specific passage that stated that someone who engages in a particular act--striking a person with an object and killing him, as Oliver did to Collins--is a murderer and must be put to death. Most circuits have ruled that when a Bible itself enters the jury room, the jury has been exposed to an external influence. Here, we face facts that are even more egregious than in those previous cases, as the jurors consulted a specific passage that provided guidance on the appropriate punishment for this particular method of murder. As such, we hold that the jury's consultation of the Bible passages in question during the sentencing phase of the trial amounted to an external influence on the jury's deliberations.

The question before us is not whether a juror must leave his or her moral values at the door or even whether a juror may consult the Bible for his or her own personal inspiration during the deliberation process. This case is also not about whether jurors must forget that, generally, the Bible includes the concept of an "eye for an eye." Therefore, we need not address these issues. Instead, here, several jurors collectively consulted a Bible, in the jury room, and likely compared the facts of this case to the passage that teaches that capital punishment is appropriate for a person who strikes another over the head with an object and causes the person's death.... The Bible served as an external influence precisely because it may have influenced the jurors simply to answer the questions in a manner that would ensure a sentence of death instead of conducting a thorough inquiry into these factual areas. ... A contrary holding would eviscerate the rule from Remmer that jurors must rely on only the evidence and law presented in an open court room. It may be true that the Bible informs jurors' general outlook of the world and their moral values in particular, and jurors may constitutionally rely upon those morals in their deliberations. But the particular passage at issue here does not generally inform a juror's moral understanding of the world. The jurors did not testify that they knew, as people of faith, that someone who hits another over the head with an "instrument of iron" or a "hand weapon of wood" so that the person dies is a murderer and should be put to death. Instead, several jurors testified that they read this passage in the Bible while they were in the jury room debating Oliver's fate. Thus, the jury's use of the Bible here amounts to a type of 'private communication, contact, or tampering' that is outside the evidence and law, which is exactly what Remmer sought to circumscribe."
Oliver, 541 F.3d at 340-41 (citations omitted)

In addition to the survey of the circuits undertaken in Oliver, the case highlights a conceptual quandary involving the effect of the Bible on the deliberative process. Is the Bible actually evidence? On one hand, the text has no direct implications for the factual matter - the who, what, when, where - to be resolved by the jury. But on the other, even if it adds nothing to unwinding the facts of the case, as the circuit suggests, passages from the Bible can relate to core questions that the jury faces - whether the aggravating factors outweigh the mitigating factors so as to justify imposition of a sentence of death. See Oliver, 541 F.3d at 340 (“The Bible served as an external influence precisely because it may have influenced the jurors simply to answer the questions [of future dangerousness and mitigating factors] in a manner that would ensure a sentence of death instead of conducting a thorough inquiry into these factual areas.”).

Federal Rules of Evidence