Another Look At FRE 606(b) And Extrinsic Influences On The Jury

Motion for new trial on criminal extortion and bribery case denied, despite juror's statement to newspaper after the verdict that because the defendants did not testify, the juror reasoned that "[if] they were innocent, they would have testified.’”; since members of the jury did not learn of the defendant's failure to testify through improper channels, the evidence of their discussions was not admissible under FRE 606(b) as it was not an extrinsic influence, in United States v. Kelley, 461 F.3d 817 (6th Cir. Aug. 31, 2006) (Nos. 05-1361, 05-1435)

Two weeks ago, the Federal Evidence Blog reported a recent Ninth Circuit case in which the circuit remanded a conspiracy and arson conviction because the trial judge failed "to make adequate inquiries regarding news stories" that appeared during deliberations and their impact on juror's deliberations; the judge erroneously failed to explore "whether any juror heard any of the information" and its impact on the jury. See "Trial Court's Duty To Make 'Adequate Inquiries' About Extrinsic Influences On Jury" (Oct. 6, 2010).

A contrasting and much more usual case is one in which a party learns of the influence of news reports after the trial concludes. For example, in United States v. Kelley, Defendants Kelley were a married couple; the husband was a county administrator and his wife was an employee of a health care insurer. In 1992, a business approached Kelley seeking county business and with a “‘wink and a nod,’ a mutually beneficial financial relationship began.” The company received contracts regarding the county airport and the Kelleys received kickbacks on these contracts. Over time, the defendants’ scheme was discovered and they were indicted, tried and convicted.

After the trial, the defendants filed a motion for a new trial based on juror misconduct. The motion was based on a local news article reporting the trial results and probing whether the Kelleys failure to testify on their own behalf during the trial affected the verdict. One “juror stated that ‘I was also struck by the fact that neither of the Kelleys testified. If they were innocent, they would have testified.’” Kelley, 461 F.3d at 831.

The trial court denied the defendant's post-trial motion, finding that the newspaper report insufficient to grant a new trial under FRE 606(b). The circuit affirmed the trial court’s determination, noting that the “jurors’ statements to the newspaper fall within the scope” of FRE 606(b) and were therefore barred from review. The circuit explained that FRE 606(b) makes any evidence regarding a juror’s thoughts about the trial, if offered to impeach the jury’s verdict, incompetent. As a result, it “cannot be admitted.” Kelley, 461 F.3d at 831 (citing United States v. Gonzales, 227 F.3d 520, 524 (6th Cir. 2000) (reversing district court motion for new trial based on claim that jury was improperly exposed to extraneous information)).

The policy reason for review of this evidence “is disfavored [is] because of its potential to undermine ‘full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople.’” Kelley, 461 F.3d at 831 (quoting Tanner v. United States, 483 U.S. 107, 120-21 (1987) (holding that juror intoxication is not an “outside influence” about which jurors may testify to impeach their verdict)).

The Sixth Circuit reasoned that the newspaper report of the juror’s posttrial comments did not meet either of two exceptions to FRE 606(b) (that (1) a juror may provide testimony “on the question whether extraneous prejudicial information was improperly brought to the jury’s attention,” or (2) the jury may testify “whether any outside influence was improperly brought to bear upon any juror.”).

The circuit considered neither exception was involved in the appeal: “whether a juror’s consideration of a defendant’s failure to testify constitutes a permissible internal influence or an impermissible external or extraneous influence.” Kelley, 461 F.3d at 831 However, in its analysis the circuit noted that its disposition agreed “with our sister circuits that because the juror did not learn of the Kelleys’ failure to testify through improper channels, a juror’s discussion regarding this fact does not fall within either Rule 606(b) exception.” Kelley, 461 F.3d at 832. The circuit affirmed the trial court’s decision to deny the defendants a new trial.

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