Circuit Split: Whether Juror Affidavits Can Be Used To Show Juror Dishonesty During Voir Dire And Contest A Jury Verdict

After allegations that the jury foreperson by "behav[ing] inappropriately during deliberations" by "focus[ing] on her own daughter's past experience with a serious traffic accident, rather than the evidence presented at trial," FRE 606(b) precluded inquiry into jury's verdict; case highlights circiut split on whether juror allegations of dishonesty during voir dire "may be used to challenge a verdict"; no exception permitted consideration of another juror's affidavit alleging the the misconduct, in Warger v. Shauers, 721 F.3d 606 (8th Cir. July 24, 2013) (No. 12-1846)

In promoting respect for the jury process and jury independence, FRE 606(b) generally disallows jury testimony about what transpired during jury deliberations. There are three limited exceptions permitted under the rule:

A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.

The Eighth Circuit recently considered a post-verdict claim that the foreperson engaged in misconduct during jury deliberations based on a juror affidavit. The question was whether any exception permitted consideration of the affidavit.

Post-Verdict Claim Of Juror Bias And Misconduct

The case involved a negligence action following a traffic accident which resulted in serious injuries. The jury returned a verdict for the defendant. Subsequently, one juror contacted plaintiff's attorney to report:

his concern as to the jury foreperson having behaved inappropriately during deliberations. Specifically, the juror alleged the foreperson had focused on her own daughter's past experience with a serious traffic accident, rather than the evidence presented at trial. In an affidavit, the juror contended that during deliberations the foreperson stated her daughter's life would have been ruined had her daughter been held liable for damages caused by the accident. The affidavit further alleged the foreperson expressed she was unwilling to return a verdict for Warger because the Shauers were a young couple and their lives would also be ruined should they be found liable. Further, it stated other jurors had been persuaded by her expressions of sympathy and thus decided to return a verdict for Shauers.

Warger, 721 F.3d at 609. The plaintiff's motion for judgment as a matter of law, or, in the alternative, for a new trial based on the jury misconduct was denied by the trial court which also declined to consider the juror's affidavit. On appeal, the plaintiff challenged this ruling.

Does The First Exception Apply?

The Eighth Circuit first considered whether the first exception under FRE 606(b) applied, permitting review of claims that "extraneous information" (or "matters considered by the jury but not admitted into evidence") (quoting United States v. Bassler, 651 F.2d 600, 602 (8th Cir. 1981) (defining "extraneous information"). The circuit agreed with the trial court that the first exception did not apply…. In this case, the evidence excluded by the district court concerns an alleged bias held by a jury member. It does not concern extraneous information improperly brought before the jury. Thus, the exception to the rule does not apply, and we cannot say the district court abused its discretion.

Jurors' personal experiences do not constitute extraneous information; it is unavoidable they will bring such innate experiences into the jury room. Rather, extraneous information includes objective events such as "publicity and extra-record evidence reaching the jury room, and communication or contact between jurors and litigants, the court, or other third parties."

Warger, 721 F.3d at 611 (citing United States v. Krall, 835 F.2d 711, 716 (8th Cir. 1987) (distinguishing juror testimony regarding "objective events or incidents . . . from juror testimony regarding possible subjective prejudices or improper motives of individual jurors, which numerous courts and commentators have held to be within the rule rather than the exception of 606(b)") (citation omitted); see also Banghart v. Origoverken, A.B., 49 F.3d 1302, 1306 n.6 (8th Cir. 1995) ("Rule 606(b) establishes very strict requirements for accepting testimony from jurors about their deliberations, and trial courts should be hesitant to accept such testimony without strict compliance with the rule.")).

Circuit Split: Establishing Juror Dishonesty During Voir Dire

The circuit then considered an alternative argument that the trial court should have considered the juror’s affidavit “to show a juror was dishonest during voir dire, relying on McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (noting "to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause")). However, the circuit noted division on this issue:

Although juror testimony can be used to show dishonesty during voir dire for the purpose of contempt proceedings against the juror, Clark v. United States, 289 U.S. 1, 12-14 (1933), there is a split among the circuits as to whether such testimony may be used to challenge a verdict. See United States v. Benally, 546 F.3d 1230, 1235 (10th Cir. 2008).

Warger, 721 F.3d at 611.

The Eighth Circuit cited to other circuits which have "held that statements by jurors regarding dishonesty during voir dire may be admitted into evidence for the purpose of challenging a verdict":

  • Ninth Circuit: United States v. Henley, 238 F.3d 1111, 1121 (9th Cir. 2001) (holding "evidence of . . . juror's alleged racial bias is indisputably admissible for the purposes of determining whether the juror's responses were truthful"); Hard v. Burlington N. R.R., 812 F.2d 482, 485 (9th Cir. 1987) ("Statements which tend to show deceit during voir dire are not barred by [Rule 606(b)].")
  • Fifth Circuit: Maldonado v. Mo. Pac. R.R. Co., 798 F.2d 764, 770 (5th Cir. 1986) (stating in dicta that "the district court can receive testimony or grant a new trial . . . if the [juror's] voluntary disclosure relates to . . . false information (or withholding) given on voire [sic] dire").

In contrast, two circuits have disallowed the consideration of jurur dishonesty claims to be used to challenge a verdict:

  • Third Circuit: Williams v. Price, 343 F.3d 223, 235-37 (3d Cir. 2003) ("[T]he Federal . . . Rules of Evidence categorically bar juror testimony 'as to any matter or statement occurring during the course of jury's deliberations' even if the testimony is not offered to explore the jury's decision-making process in reaching the verdict . . . We hold . . . that the exclusion of such testimony is not irrational and does not contravene or represent an unreasonable application of clearly established federal law.") (quoting FRE 606(b)) (then Judge-Alito)
  • Tenth Circuit: Benally, 546 F.3d at 1235-36 ("[I]f the purpose of the post-verdict proceeding were to charge the jury foreman or the other juror with contempt of court, Rule 606(b) would not apply. However, it does not follow that juror testimony that shows a failure to answer honestly during voir dire can be used to overturn the verdict . . . The Third Circuit's approach best comports with Rule 606(b), and we follow it here."; "[A]llowing juror testimony through the backdoor of a voir dire challenge risks swallowing the rule. A broad question during voir dire could then justify the admission of any number of jury statements that would now be recharacterized as challenges to voir dire rather than challenges to the verdict.") (citations omitted))

Like the Tenth Circuit, the Eighth Circuit also found the "reasoning" of the Third Circuit "persuasive." The circuit declined the invitation "to create an exception" to FRE 606(b). As the circuit explained:

In order to achieve finality in the litigation process and avoid relentless post-verdict scrutiny and second guessing, occasional inappropriate jury deliberations must be allowed to go unremedied. As the Supreme Court has warned, "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 would all be undermined by a barrage of postverdict scrutiny of juror conduct."

Warger, 721 F.3d at 612 (citing Tanner v. United States, 483 U.S. 107, 120-21 (1987); id. at 125 ("[T]he legislative history demonstrates with uncommon clarity that Congress specifically understood, considered, and rejected a version of Rule 606(b) that would have allowed jurors to testify on juror conduct during deliberations . . . .")). Consequently, the circuit concluded that FRE 606(b) disallowed juror testimony to challenge the verdict.


The Warger case shows the extent that most courts will take to discourage consideration of juror misconduct allegations unless one of the three narrow exceptions under FRE 606(b) apply. The case also highlights a circuit split on whether claims of juror dishonesty during the selection process may be used to challenge the jury verdict.


Photo Description: Eighth Circuit Court of Appeals, Thomas F. Eagleton U.S. Courthouse in St. Louis, MO. Learn more about the 29-story courthouse which was named after former U.S. Senator Eagleton.


Subscribe Now To The Federal Evidence Review

** Less Than $25 Per Month ** Limited Time Offer **

subscribe today button

Federal Rules of Evidence