On October 8, the Supreme Court heard oral argument in Warger v. Shauers, No. 13-517, a case that the Products Liability Monitor has been watching. The case involves the ability of a party to introduce juror testimony about statements made during jury deliberations that tend to show the alleged dishonesty of a juror during voir dire.
The admissibility of juror testimony is governed by Federal Rule of Evidence 606(b), which prohibits testimony from jurors about “any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.” Few exceptions to this rule are granted, including testimony about extraneous prejudicial information that was improperly brought to a juror’s attention; an outside influence improperly brought to bear on any juror; or a mistake made in entering the verdict. Thus, as an established matter, juror testimony that purports to impeach the verdict is not allowed. Indeed, the Supreme Court previously spoke on the permissibility of juror testimony in a decision issued over a quarter of a century ago; in that case, the Court barred an evidentiary hearing in which jurors would be able to testify on juror alcohol and drug use during trial, finding that the Sixth Amendment right to trial by a competent jury did not require permitting such testimony. See Tanner v. United States, 483 U.S. 107 (1987).
The Warger case involves a jury foreperson who, after a defense verdict in an automobile accident case and after answering in the negative in response to a standard voir dire question addressing potential biases, revealed that her own daughter had been at fault in an auto accident. In support of his position that testimony from that juror should be admitted, Warger argued in the briefing that because he was making a motion for a new trial, the juror testimony is not proscribed under Rule 606(b) because it is not being offered as an inquiry into the validity of a verdict or settlement. In response, Shauers posited that a motion for a new trial is, in actuality, an attack upon the validity of the verdict and that the juror testimony is thereby forbidden.
At oral argument, counsel for Warger started by noting that the Supreme Court had previously held in McDonough v. Greenwood, 464 U.S. 548 (1984), “that a party is entitled to a new trial where it can show that a juror was materially dishonest at voir dire, regardless of whether the juror’s dishonesty actually infected the verdict.” Counsel proceeded by arguing that a McDonough claim—that is, an inquiry into the composition of the jury—is thus permitted under Rule 606(b). In response, counsel for Shauers asserted that the fact that this case involves juror dishonesty does not change the Court’s holding in Tanner, and that McDonough does not change the nature of Rule 606(b).
The Justices focused their questioning largely on the Petitioner’s position, with Justice Ginsburg indicating her skepticism at the very outset of oral argument when commenting that “the whole rationale behind this is we don’t want to invade the jury province with information about what went on in the jury room. And that’s a pretty old rule. . . . So this, what’s involved here is a juror reporting what she heard during the deliberations. And it seems to me that’s exactly the kind of thing that is not permitted.” Other Justices, including Justice Alito and Chief Justice Roberts, expressed a concern that permitting such testimony would create an untoward incentive for lawyers to approach jurors after trial, in a presumed effort to use the evidence to get a new trial. This concern is reflective of the values promoted by Rule 606(b) in the first place: freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. Given the Court’s previous decision against allowing juror testimony in Tanner, it is possible that the Court in this case will exhibit a similar reluctance to invade the respected boundaries of the jury.