FRE 606(b)'s Limited Scope For Inquiries About Jury Conduct

In a drug conspiracy prosecution in which the trial court erred instructing the jury that it could discuss the case during the course of the trial and before formally deliberating, FRE 606(b) did not preclude inquiries into jury deliberations into times other than “during the course of the jury’s deliberations,” so that the defendant would not be prevented by FRE 606(b) from probing any jury “discussion about the case prior to the formal deliberations”; however, on a silent record, a new trial was not required absent a showing of prejudice confirming that an actual pre-deliberation jury discussion of the case occurred, in United States v. Jadlowe, __ F.3d __ (1st Cir. August 4, 2010) (No. 08-2449)

In a criminal trial, jurors are often admonished not to discuss the case until the court submits it to them for deliberations. This insures that they consider their decision having heard all of the evidence on both sides of the case, received instructions from the court on how to consider that evidence, and arguments by counsel as to what the evidence means in terms of their verdict. The prevailing rule in the federal courts is one of "disapproval of discussions by jurors about the case before formal deliberations begin." In a recent case, the First Circuit panel which included retired Associate U.S. Supreme Court Justice Souter, examined how this standard applied it in a case where the court's jury instruction arguably allowed jury members before beginning formal deliberations to "talk about interesting things that happened during the course of the trial, idiosyncracies of the judge and the lawyers, interesting things witnesses say, significant pieces of evidence. Just do not express an opinion about the case, again, until you begin deliberations and each have an opportunity to make your opinions known." Jadlowe, __ F.3d at __.

In the case, defendant Jadlowe was convicted on drug conspiracy charges. His challenge on appeal to this verdict "argue[d] that the district court committed structural error by instructing the jurors that they could discuss the case among themselves during the trial, before formal deliberations commenced." This, the defendant contended, "virtually invited the jury to engage in premature deliberations." The instruction that the defendant identified as erroneous described for the jury the course of its duties as the trial began:

"I just have a few special instructions about your conduct as jurors. The first one is the hardest. You are not to discuss the case with each other or anyone else until you retire to the jury room at the end of the case to deliberate on your verdict.
"This rule is not as strict as it sounds. When I say you are not to discuss the case, I mean it in this sense. You are not to express an ultimate opinion about the outcome of the case.
Personally, even this rule, the way I state it, I don't think is a terribly good rule. I understand the reason for it. The thought is that because some of us tend to be more opinionated and assertive than others, jurors who are more assertive will tend to influence the opinions of fellow jurors if jurors are talking about the case before they hear all of the evidence. I think this, in fact, underestimates the intelligence of almost all the jurors that I have worked with over the years, but, nonetheless, this is the federal rule. It's been abolished in a number of states, but it is the federal rule. So we have to respect it. Like I say, whether we agree with the wisdom of a rule or not, it is the rule, the rule we follow.
But, again, don't over-interpret what I said. Of course you'll talk about interesting things that happened during the course of the trial, idiosyncracies of the judge and the lawyers, interesting things witnesses say, significant pieces of evidence. Just do not express an opinion about the case, again, until you begin deliberations and each have an opportunity to make your opinions known.
Jadlowe, __ F.3d at __.

Despite objections by defense counsel to the instruction, the court did not alter the instruction feeling that it anticipated the course of "human nature." As the judge told the defendant: "if you tell them not to discuss the case, [that] defies anything we know about human beings. What's important is that they not form any ultimate opinions about the case until they've heard all of the evidence and that they not express opinions about the resolution of the case to one another. And that's-if you want me to repeat the thrust of that instruction again, I will, but that's what I meant." Jadlowe, __ F.3d at __.

The First Circuit referred to the judge's instruction as "unmistakably erroneous" and the circuit rejected that allowing pre-deliberation jury discussions was a “modern trend” that the federal courts would soon embrace. According to the circuit:

"At least for now, the prevailing view in the federal courts remains that it is improper for jurors to discuss the case other than during their formal deliberations. In December 2009, the Judicial Conference Committee on Court Administration and Case Management reaffirmed the general no-discussion rule in its proposed model jury instruction on the use of electronic technology. See Judicial Conference of the United States, Comm. on Court Admin. and Case Mgmt., Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (Dec. 2009), available at www.uscourts.gov/News/Viewer.aspx?doc=/ uscourts/News/2010/docs/DIR10-018.pdf (proposing that courts tell jurors in pre-trial instructions that, “[u]ntil you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors”). Our circuit's pattern instruction is to the same effect: 'First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.' Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.07 (1997), available at www.med.uscourts.gov/practices/crpji.97nov.pdf."
Jadlowe, __ F.3d at __ (footnotes omitted).


In its survey of the law of the other circuits, the First circuit found many expressing "disapproval of discussions by jurors about the case before formal deliberations begin." The Circuits cited included:

  • Second Circuit: United States v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (“‘It is a generally accepted principle of trial administration that jurors must not engage in discussions of a case before they have heard both the evidence and the court's legal instructions and have begun formally deliberating as a collective body.’”) (quoting United States v. Resko, 3 F.3d 684, 688 (3d Cir. 1993))
  • Third Circuit: United States v. Carey, 337 Fed.Appx. 256, 260 (3d Cir. 2009) (noting that “[t]he evidence of premature jury deliberation revealed a departure from the preferred process,” where some jurors reported hearing other jurors discussing the case)
  • Eighth Circuit: Winebrenner v. United States, 147 F.2d 322, 329 (8th Cir. 1945) (“So general is the rule that jurors should not discuss a case prior to its submission to them, that it has been enacted into statute in practically all the states of the Union.”)
  • Eleventh Circuit: United States v. Dominguez, 226 F.3d 1235, 1248 n. 13 (11th Cir. 2000) (describing predeliberations jury discussions as a “violation of the proper process for jury decision-making”)

The First Circuit reaffirmed this traditional view that jury discussion of the case before deliberations is to be discouraged. It noted in particular that dispensing with the traditional rule could result in a dire chain of errors which could undermine "a defendant's Sixth Amendment right to a fair trial as well as his or her due process right to place the burden on the government to prove its case beyond a reasonable doubt." As the circuit feared:

"If the court's faulty instruction results in early discussion of the evidence or witnesses by the jurors, their later deliberations may be prejudiced in ways that would be difficult to identify or quantify. The jury's deliberative process-the collective, objective review of the evidence of record, evaluated as a whole, and guided by the court's closing instructions-may be compromised as a result of prematurely formed impressions. That potential harm is unlike the erroneous introduction of a piece of evidence or a flawed instruction that misstates or omits an element of the crime. Such errors are discrete trial events whose effect on the outcome of the trial may be evaluated in light of the properly admitted evidence or the instruction as a whole. By contrast, premature discussion raises the possibility that the jurors will view all of the evidence through a distorted lens, much like what occurs when the jury is improperly instructed on reasonable doubt."
Jadlowe, __ F.3d at __


The Circuit rejected the defense argument that the instruction created a structural error from which prejudice would be presumed. It rejected the defense contention that such a presumption was necessary because under the FRE "a defendant would never be able to probe the jury's deliberations to prove prejudice" because of the barrier formed by rules like FRE 606(b). The circuit disagreed, noting the scope of the evidence rules did allow for inquiry into juror conduct:

"Inquiries into jury deliberations are, in fact, narrowly restricted by Federal Rule of Evidence 606(b), which bars juror testimony 'as to any matter or statement occurring during the course of the jury's deliberations.' The relevant inquiry, however, is not into the nature of the formal deliberations that occurred once the presentation of evidence concluded, but the nature of any juror discussion about the case prior to the formal deliberations. Probing such premature discussions is neither impermissible nor impossible. Indeed, courts routinely examine allegations of juror misconduct involving improper external influences and communications among jurors, and we see no relevant distinction between those contexts and this one. The threshold question would be whether any premature discussion took place. If so, was it among all jurors or just a few? Did discussion occur regularly through the proceedings, or only once-and at what point? What was the content of the discussion?"
Jadlowe, __ F.3d at __.

Because inquiry was possible, the circuit insisted that if an instruction could be read to allow jurors pre-deliberation discussions, that the burden was on the defendant to "make some showing that the improper conduct in fact arose. The defendant could, for example, ask the trial judge to inquire of the jurors whether any premature discussions had taken place. If the court's questioning reveals that such discussion occurred, the government would bear the burden of proving that it was not prejudicial. Even if the court refuses to make the inquiry, the defendant will have preserved his objection to the instruction by making the request, and the government would have the burden of showing the absence of prejudice. The silent record would in that situation mean the government could not satisfy its burden, and a new trial would be necessary." Jadlowe, __ F.3d at __.

Federal Rules of Evidence
PDF