As I have said before in these pages, I have interviewed each jury after each jury trial I have conducted since I started as a Magistrate Judge way back 1987. My intent was to learn how I could do a better job, and also to help the jurors decompress. I always end the interview by telling the jurors that they may speak with the lawyers if they wish to provide counsel with a critique of the lawyers’ performance. I caution the jurors not to speak about the substance of the deliberations; that is, what the jurors said or did as they deliberated. I avoid that information as well when I interview the jury.
The Supreme Court has now taken a case from the Eighth Circuit that broadly speaking raises the question of what information lawyers are entitled to know regarding what was said during jury deliberations. The case comes from the Eighth Circuit and was written by Judge Bye and concurred in by Judges Wollman and Colloton. Anyone who knows about the Eighth Circuit knows that the panel was about as diverse ideologically speaking as one could draw.
The plaintiff’s lawyers wanted to use a post-verdict affidavit from one juror about the statement of another juror during deliberations. During the deliberations, one juror said that another juror revealed that her daughter has been at fault in a fatal car accident. “She related,” so said the affiant said, “that if her daughter had been sued, it would have ruined her life.” Other jurors echoed her statement, he said.
Judge Bye’s opinion is clear and well written. Basically, Judge Bye said that Federal Rule of Evidence 606(b) means what is says–you don’t get to use information from jurors to get after the verdict unless the exceptions apply. None did. That was true even if the statement was intended to prove that the juror was not forthcoming during voir dire. The Supreme Court has taken the case for review. See Adam Liptak, Challenging the Privacy of Statements Made During Jury Deliberations, New York Times (September 15, 2014) (hat tip to How Appealing). The Court apparently took the case because of a split in the Circuits. The Ninth Circuit, and perhaps others, held that statements which tend to show deceit during voir dire are not barred by Rule 606. On the other hand, the Third Circuit in an opinion written but then Judge Alito and the Tenth Circuit went the way of the Eighth Circuit.
I am betting that the Supreme Court affirms the Eighth Circuit. The fact that Justice Alito sided with the Eighth Circuit’s reasoning when he was a Third Circuit judge provides extra “umph” to those who would interpret Rule 606(b) strictly. What do I think is the correct result?
I think Judge Bye got it right. Moreover, I have a visceral reaction against lawyers using post-verdict statements from jurors. What do you think? In commenting, please also tell me whether you make it a practice to interview jurors after the verdict and tell me whether you learn anything of value?