Circuit Consensus On Jurors' Disregard For Limiting Instructions On Defendant's Exercise Of Right Not To Testify

When a court learns that a jurors may not have followed its instructions not to draw an adverse inference from a defendant's election not to testify at trial, can their deliberations be reviewed and questioned and the verdict challenged? The Seventh Circuit recently considered a motion for a new trial based on juror statements that the jurors had disregarded the trial judge's instruction not to consider the defendant's exercise of his right not to testify; the circuit concluded under FRE 606(b), that the verdict could not be impeached so that the motion for a new trial was correctly denied, in United States v. Torres-Chavez, __ F.3d __ (7th Cir. March 6, 2014) (No. 13–1340)

Except for some limited exceptions, FRE 606(b) excludes a juror's testimony about what transpired during jury deliberations. The rule can be a source of tension with a defendant's rights under the Fifth Amendment (due process) and Sixth Amendment (impartial jury). A recent Seventh Circuit case highlighted some of the issues that may arise when it seems, contrary to the usual presumption, that some on the jury did not employ an instruction that protected one of the defendant's rights.

Trial Court Proceedings

In the case, the defendant Torres-Chavez was convicted of charges concerning a conspiracy to distribute cocaine. A little more than a month after the jury's guilty verdict the defendant sought a judgment of acquittal contending there had been juror misconduct. The defendant had learned that after the conclusion of his trial, "several jurors were placed back into the ... jury pool" and five were voir dired for possible service in subsequent trials of other defendants in cases involving crimes not related to the defendant's crime. Apparently the voir dire of these jurors "concern[ed] whether a defendant's failure to testify in his own defense would influence their deliberative process. Three gave potentially problematic answers, referencing Torres-Chavez's failure to testify in his trial and suggesting that they could not help but draw an adverse inference." The trial judge denied the motion for acquittal finding that the juror statements were not admissible under FRE 606(b).

Proffer Of Testimony Concerning Possible Misconduct

As an example of the strength of the evidence presented to the court on juror misconduct, evidence was adduced that jurors disregarded the trial court's instructions. The defendant submitted transcripts of statements by three jurors during their voir dire while being considered for a place on a jury in a latter, unrelated case. As characterized by the Seventh Circuit, the juror "ultimately confessed to an inability to follow the law in the unrelated trial for which voir dire was being conducted" -- by implication, this suggested that the same had occurred when the juror had sat on the defendant's case and learned that the defendant would decline to testify in his own defense. For example, the voir dire of one of the witnesses involved the following exchange:

THE COURT:
[Y]ou indicated that you would have some problems if the defendant did not testify in this case, am I right about that?
JUROR A:
Yes.
THE COURT:
... [I]f you're in this courtroom situation and if you are instructed the government has the burden, the defendant has the right not to testify, would you be able to follow that instruction?
JUROR A:
I would try, but it's hard because the last case we tried last week it was like the same thing. He didn't testify. Me, I probably want to hear from the other side.
THE COURT:
Did the Judge instruct you that you shouldn't consider whether or not he testified?
JUROR A:
I mean, yeah, but—
* * *
THE COURT:
... Do you think you could be fair and follow the law ... ?
JUROR A:
I don't know. From the last trial I just don't understand nobody not testifying. That's just me.
THE COURT:
Well, did the jury evaluate the government's evidence in that case?
JUROR A:
I mean, yeah, they did, but it was just me. I don't know about anybody else.
THE COURT:
[W]ere you able to decide whether or not the government had carried its burden of proof?
JUROR A:
Yeah, a little bit. A little. But I still had the doubt as soon as I heard the case knowing he was not defending himself. I still had the little doubt in my head that he probably did it.
* * *
THE COURT:
So apart from feeling like maybe you didn't hear both sides, do you feel that the trial was unfair?
JUROR A:
Not really.
* * *
THE COURT:
Do you understand that [the defendant] has a right to not testify and that exercise of that right cannot be used against him?
JUROR A:
I understand it, but I still—I felt—I still think I have an opinion about the situation too.
THE COURT:
... If you can't follow the law, you should not be on the jury. If you can follow the law, you should be on the jury. It's that easy.
JUROR A:
I probably wouldn't, being honest.

Similarly, a second juror from the defendant's trial, when questioned for possible service in the subsequent unrelated trial "was somewhat more equivocal, but likewise could not firmly commit to following the district court's instructions." As explained by the juror, although the court instructed the juror that the defendant's failure to testify was not to be considered in their deliberations, the juror was "really bothered" by the failure and that "I didn't feel it was tried right and I—you know what? After—I didn't really come to a conclusion until after I went home that night, and the whole way home I was thinking about it and I've been thinking about it ever since. I wasn't sure. I kind of felt like, you know—at the time I thought we were doing the right thing but it just kept on playing in my head that I wasn't sure about it." A third juror noted similar feelings and voiced reservations as well about whether the juror would "hold it against any defendant if he or she does not testify." Torres-Chavez, __ F.3d at __.

Affirming Exclusion Of The Evidence

Despite this evidence, the trial court denied the defendant's motion for a new trial. The court cited FRE 606(b) as precluding further inquiry into the matter. The Seventh Circuit affirmed this approach , noting that it was following an application of FRE 606(b) taken by most circuits. The rule "draws a line in the sand between evidence of outside influences on the jury's deliberative process and evidence of the jury's own internal processes. Evidence of outside influences is not just admissible, it triggers a presumption of prejudice." Torres-Chavez, __ F.3d at __ (citing Remmer v. United States, 347 U.S. 227, 229 (1954)).

The circuit noted that:

[t]he juror statements in this case concern only 'intrajury influences on the verdict during the deliberative process,' and therefore fall squarely within the Rule 606(b)(1) prohibition. They are not admissible under existing law. Torres–Chavez acknowledges the legal status quo, but argues that we should create an additional, judge-made exception to the 606(b)(1) prohibition for statements concerning potential bias against a defendant's exercise of his right to remain silent, as the First Circuit has done for statements exhibiting racial or ethnic bias.
Torres-Chavez, __ F.3d at __ (citing United States v. Ford, 840 F.2d 460, 465–66 (7th Cir. 1988)(FRE 606(b) does not apply to “intrajury influences on the verdict during the deliberative process.”); United States v. Villar, 586 F.3d 76, 84–88 (1st Cir. 2009))

Circuit Consensus Noted

The Seventh Circuit noted the majority of circuits have rejected efforts for a "judge-made" exception to FRE 606(b)(1) when a court learns that a juror may have drawn an adverse inference against a defendant for exercising his right to remain silent. It would join these circuits in also "declin[ing] to do so":

  • Third Circuit: United States v. Friedland, 660 F.2d 919, 927–28 (3d Cir. 1981) (after a newspaper interview revealed that "the jury had improperly considered and discussed the appellants' failure to testify," circuit found any inquiry was barred under FRE 606(b); "Because 'extraneous prejudicial information' or 'outside influence' were not alleged by appellants, the inquiry would not have fallen within the exceptions to the rule.")
  • Fifth Circuit: United States v. Martinez-Moncivais, 14 F.3d 1030, 1036–37 (5th Cir. 1994) ( post-trial statements that juror believed that if the defendant had been innocent, he would have taken the stand, did not fall into the “narrow exception that arises when there is evidence of outside influences on the jury”))
  • Sixth Circuit: United States v. Kelley, 461 F.3d 817, 832 (6th Cir. 2006) (failure was "not a fact the jurors learned through outside contact, communication, or publicity. It did not enter the jury room through an external prohibited route.... It should not have been discussed by the jury, and indeed was the subject of a jury instruction to that effect. But it was not 'extraneous information,' and therefore does not fall within the exception outlined in Rule 606(b) (quoting United States v. Rodriguez, 116 F.3d 1225, 1227 (8th Cir. 1997)))
  • Eighth Circuit: United States v. Tran, 122 F.3d 670, 672–73 (8th Cir. 1997) (After juror affidavits indicated that jurors may have disregarded the jury instruction against an adverse inference from the defendant's election not to testify, circuit concludes that under FRE 606(b), defendant "Tran's failure to testify also was not 'extraneous prejudicial information' because it was known to the jurors as a result of their presence at the trial, not as a result of something disclosed to them that had not occurred in the courtroom.")
  • Ninth Circuit: United States v. Rutherford, 371 F.3d 634, 639–40 (9th Cir. 2004) (juror discussion of defendant's failure to testify in violation of court's instruction is inadmissible)
  • Tenth Circuit: United States v. Voigt, 877 F.2d 1465, 1469 (10th Cir. 1989) (After a claim was raised that a juror may have voted for conviction based on the defendant's "failure to take the witness stand," circuit concludes that the defendant "is now apparently asking us to disregard Rule 606(b), and this we refuse to do. Inquiries into jury verdicts and deliberations are looked upon with strong disfavor. ")

Conclusion

The Torres-Chavez case highlights the direct application of FRE 606(b). The Seventh Circuit clearly indicated that it was bound by the terms of the rule. It would not entertain the defendant's suggestion that a judge-made exception to the rule was appropriate. The circuit noted a consensus of other circuits had reached the same result when confronted with comparable facts that the jury in deliberating might have disregarded the court's instruction regarding defendant's failure to testify).

The Federal Evidence Blog has already noted that there have been a number of recent cases concerning the scope of FRE 606(b). Last week, the Supreme Court indicated that it would hear a case which concerns the extent that juror testimony about statements made during the jury deliberations may be considered after a moving party files a motion for a new trial on grounds of juror dishonesty during voir dire, in Warger v. Shauers (No. 13-517). See Supreme Court Watch: Court Agrees To Hear Juror Dishonesty Issue Dividing Lower Courts. While a separate issue is presented in Warger v. Shauers than the Seventh Circuit was addressing in Torres-Chavez, both necessarily involve the scope and reach of the exceptions to the operation of FRE 606(b). For other cases considering the scope of FRE 606(b), see Circuit Splits: Challenging A Verdict Based On Claims of Juror Racial Bias During Deliberations Or Claims of Juror Dishonesty During Voir Dire.

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