Circuit Consensus: A "Sufficient" Inquiry By The Court About A Bible Found In The Jury Room

After defendant's conviction as a felon in possession of a firearm, a "pocket-sized New Testament Bible was found in the jury deliberation room" and the trial court was obliged to investigate any plausible allegation that the jury verdict was affected by an improper external influence; the trial judge's questioning of only the jury foreperson about the matter, who testified that the Bible "did not come up at all during deliberations" and she did not "recall ever seeing" any jurors using it during deliberations, was sufficient inquiry to conclude that the jury had not been prejudicially affected by exposure to external matters, in United States v. Rodriguez, __ F.3d __ (1st Cir. March 28, 2012) (No. 10–1984)

A few years ago, the Federal Evidence Blog reviewed a decision in the Fifth Circuit, Oliver v. Quarterman, 541 F.3d 329, 340 (5th Cir. 2008) regarding a Bible's use by the jury that "served as an external influence precisely because it may have influenced the jurors simply to answer the questions [of future dangerousness and mitigating factors of prisoner] in a manner that would ensure a sentence of death instead of conducting a thorough inquiry....”). In that case, the circuit joined a majority of circuits to recognize a juror's use of the Bible during deliberations as an extraneous influence, triggering a duty of the trial court to make inquiry. See also FRE 606(b)(2)(A)-(B) (Who May Impeach a Witness - A juror may testify about whether:(A) extraneous prejudicial information was improperly brought to the jury’s attention; [or] (B) an outside influence was improperly brought to bear on any juror."). How extensive is the duty of inquiry about the affect of an allegedly prejudicial information on the jury? The First Circuit recently considered this question.

In the case, a jury convicted defendant Rodriguez as a felon in possession of a firearm. After the verdict, the trial judge informed Rodriguez's lawyer, "by letter, that the judge's law clerks had seen a 'pocket-sized New Testament on top of a juror notebook on the table in the jury room.'" The judge brought this to counsel's attention, so that they could give it "whatever steps, if any, [defense counsel] think[s] are appropriate." As a result, the defendant filed a motion for a new trial, arguing that the presence of the Bible in the jury room was an extraneous influence on the jury that must be presumed to have been prejudicial.

The trial judge initiated an inquiry into the alleged presence of a Bible. As indicated by the First Circuit, this was part of the trial court's obligation "to investigate plausible allegations of improper influence on a jury verdict." The trial judge had considerable latitude on the "type of investigation which must be mounted.” (quoting United States v. Meader, 118 F.3d 876, 880 (1st Cir. 1997) (internal quotation marks omitted); see Mahoney v. Vondergritt, 938 F.2d 1490, 1492 (1st Cir. 1991); see also United States v. Corbin , 590 F.2d 398, 400 (1st Cir. 1979) (“A district court has broad, though not unlimited, discretion to determine the extent and nature of its inquiry into allegations of juror bias.”). “The trial judge may, but need not, convene a fullblown evidentiary hearing.” [United States v.] Boylan , 898 F.2d [230,]at 258 [(1st Cir. 1990)]. Instead, the court's “primary obligation is to fashion a responsible procedure for ascertaining whether misconduct actually occurred and if so, whether it was prejudicial.” Id .; see also United States v. Ortiz–Arrigoitia , 996 F.2d 436, 442–43 (1st Cir. 1993).

The defendant argued that her case should be disposed of as United States v. Lara–Ramirez, 519 F.3d 76 (1st Cir. 2008). In Lara-Ramirez, court staff also saw a Bible in the jury room. There the trial judge "questioned the jury foreperson about the Bible and its use in the jury's deliberation. The court's questioning of the jury foreperson established that the juror who brought the Bible into the jury room 'used the Bible in deliberations' and urged the other jury members to 'hear the facts, but also consider what God says in the Bible,' or 'something like that.'” The trial judge failed to appropriately address this problem. During its review, the circuit:

"recognize[d] that the presence of the Bible in the jury room posed an unusual situation for the district court,” we nonetheless stated “that the inquiry conducted by the court was inadequate to support a finding that a mistrial was manifestly necessary.” In so holding, we noted that “[t]he court questioned only the court reporter and the jury foreperson,” and stated that this “minimal investigation” was insufficient to “establish[ ] the magnitude of the ‘taint-producing event’ and the ‘extent of any resultant prejudice.’ “

Lara–Ramirez is distinguishable from the present case. Here, after consulting with counsel, the trial court held a hearing at which the foreperson testified under oath. Unlike the foreperson's testimony in Lara–Ramirez, in response to the trial court's questions concerning the presence and use of the Bible during jury deliberations, the foreperson in this case testified that as far as she could remember the Bible did not come up at all during deliberations she led, nor did she recall ever seeing it open. Based on the foreperson's testimony, the trial court found the hearing sufficient to dispel any concern that the Bible had been used during deliberations and that the jury had been improperly exposed to an extraneous influence. With “no evidence of any extraneous influence on [the] deliberations,” the district court declined to “haul” in the rest of the jury in order to conduct an individual voir dire of each one for the sole “purpose[ ] of investigating the possibility of misconduct that [was], at best, wholly speculative.” This decision was not an abuse of discretion.
United States v. Rodriguez, __ F.3d __ (citing United States v. Lara–Ramirez , 519 F.3d 76, 86 (1st Cir. 2008) (quoting United States v. Bradshaw 281 F.3d 278, 289 (1st Cir. 2002)).

How to reconcile the inquiry into the jury's use of the bible in Lara-Ramirez, where questioning only the foreperson was not enough and the situation facing the court in Rodriguez, where the circuit indicated that there was no need to go beyond voir dire of the jury foreperson? According the the circuit:

It is the circumstances of each case that will determine the level of inquiry necessary. However, what is required, as was done here [in Rodriguez], is that the judge conduct enough of an investigation to eliminate any lingering uncertainty as to whether any extrinsic information was used to improperly influence the jury. In this instance [Rodriguez's case], the district court's decision to question only the foreperson was adequate and well within its discretion. Consequently, the district court's denial of Rodriguez's motion for a new trial and its refusal to conduct an individual voir dire of each juror was not an abuse of discretion."
Rodriguez, __ F.3d at __ (citations omitted)

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