What do you remember about November 29, 1995? That was the day when one of the jurors in Jesse Webster’s drug trafficking trial was out sick. The next day, with all twelve jurors again present, Webster was convicted. Many years later, Webster claimed in a petition for post-conviction relief that the eleven jurors who showed up on November 29 improperly proceeded with deliberations that day at the direction of a rogue bailiff.
In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:
The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.
Ultimately, the district judge decided that there was insufficient evidence that the jury had deliberated on November 29 and denied Webster’s petition. The Seventh Circuit affirmed last week, holding that the district judge’s fact-finding was not clearly erroneous. Webster v. United States (No. 09-2308).
What I find interesting about the case (apart from the absurdity of asking people about the details of their decade-old jury service and the predictably off-base answers) is the district judge’s admission into evidence of the jurors’ recollections of what happened during their deliberations. This seems to conflict with the basic thrust of Rule 606(b) of the Federal Rules of Evidence, which prohibits jurors from testifying about “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.”
As the Seventh Circuit observed, “Rule 606(b) codifies the common-law prohibition against using juror testimony to impeach a verdict, which exists to promote the finality of verdicts, protect jurors from harassment, and encourage full and frank discussion in the jury room.” These concerns have always struck me as a little exaggerated, particularly when measured against the need to ensure reliability in judgments in cases involving long prison terms, like Webster’s. However, the facts in Webster point to an additional concern: jurors’ memories are themselves apt to be pretty unreliable, particularly after the passage of a few years and perhaps all the more so when the topic of questioning is an event that, while legally significant, might pass with little notice from laypeople. (Assume, for instance, that Webster’s theory were true: a bailiff instructed the eleven jurors to go ahead and deliberate despite the absence of the twelfth. I suspect that most laypeople in these circumstances would trust the bailiff as a figure of authority and follow his directions without much question or concern.)
Although the Seventh Circuit could have affirmed in Webster without addressing the Rule 606(b) question, the court went out of its way to indicate that the district judge erred in admitting the jurors’ recollections about deliberations on November 29. There seems not to be much precedent on the application of the Rule in these sorts of circumstances, but the Seventh Circuit did cite one prior district court decision holding that Rule 606(b) prohibits testimony about deliberations during one juror’s temporary absence.
Is this the right answer? The Seventh Circuit characterized the jurors’ testimony as being about “matter[s] . . . occurring during the course of the jury’s deliberations,” which would bring the testimony within the literal terms of the Rule. It’s not clear to me, though, that the fact of deliberation constitutes a “matter . . . occuring during the course of the jury’s deliberations.” I think one could plausibly interpret the Rule to protect the content of deliberations, but not the fact that the jury did or did not deliberate on a particular day.
Then, too, there are the exceptions to the Rule 606(b) prohibition. Jurors may testify about: “(1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.” Although the possibility seems not to have been raised or considered in Webster, I think there may be an argument that the alleged rogue bailiff counts as an “outside influence . . . improperly brought to bear upon any juror.”
None of this really matters to Webster because the juror testimony in his case was so unreliable and inconclusive. But courts and counsel in future cases in which the juror testimony is stronger might do well to note that the Seventh Circuit’s treatment of the Rule 606(b) issue in Webster was mere dicta.
Cross posted at Prawfs.