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Understanding The Law of Jury / Juror Misconduct*

By H. Michael Steinberg Colorado Criminal Defense Domestic Violence Trial Lawyer

Introduction – The critical role of the jury in our criminal justice system cannot be overstated. This Article addresses jury misconduct and what you need to know about your trial rights in Colorado.

When a juror deceives the Court and the parties – a question about the impact of those acts on the case being tried must be understood. This article Part II addresses the law and practical impact of this situation and the verdict of the entire jury.

A Fair Jury Verdict – The Due Process Basis For A Fair Trial

The Due Process Clauses of the United States and Colorado Constitutions guarantee every criminal defendant the right to a fair trial, including an impartial jury.

That right is violated if the court fails to remove a juror who is biased against the defendant. That

right may also be violated if jurors have improperly relied on extraneous information or if the court is made aware of possible juror misconduct and fails to investigate that allegation.

A Constitutional Duty

A trial court has a constitutional duty to inquire into allegations of juror misconduct or potential juror bias.

Under the constitutional duty error standard an appellate court must reverse conviction unless the court is persuaded that the error was harmless beyond a reasonable doubt.

An error is not harmless beyond a reasonable doubt if there is a reasonable possibility that the defendant could have been prejudiced by that error. An error is harmless beyond a reasonable doubt only if the guilty verdict was surely unattributable to the error.

Predeliberation (starting to reach a verdict before all the evidence is over) by A Jury Is Error

Predeliberation implicates a defendants rights to due process and fair trial by an impartial jury:

Why is it also a violation of due process?

(1) the jury system is meant to involve decisionmaking as a collective, deliberative process, and premature deliberations among individual jurors may thwart that goal;

(2) a juror who expresses views in the presence of other jurors is likely to continue to adhere to that opinion and therefore to approach the case with less than a fully open mind;

(3) premature deliberations may occur before a defendant has a chance to present all of his or her evidence and may, therefore, be unfavorable to [the] defendant in violation of the right to a fair and impartial trial;

(4) premature conclusions about a case effectively shift the burden to the defendant to change the opinion thus formed;

and

(5) jurors who engage in predeliberation do so in a vacuum, without benefit of the court’s instructions

Motion For New Trial – If A Juror Hears or Obtains Extraneous Evidence

Before a new trial will be ordered a defendant must show that the conduct complained of actually prejudiced him. The problem with both the requirement that the defendant demonstrate actual prejudice and the rebuttable presumption of prejudice approach is the difficulty, once a verdict has been reached, in obtaining evidence of actual prejudice or evidence with which to rebut the presumption because of the longstanding rule proscribing evidence concerning the mental processes of jurors.

The rule is codified as CRE 606(b), which provides as follows:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of any thing upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors’ attention or whether any outside influence was improperly brought to bear upon any juror.

Under CRE 606(b), affidavits from jurors about exposure to extraneous information or influences are admissible. The rule, however, precludes admission of the only evidence relevant to prove whether a defendant was prejudiced as a result of the improper contact.

An approach that avoids the problems arising under CRE 606(b) requires the trial court to determine what effect juror misconduct would have had on a typical jury.

This objective test has been widely accepted by courts and recommended by commentators.

Most courts have decided that the relevant question is whether there is a “reasonable possibility” that extraneous contact or influence affected the verdict to the detriment of the defendant.

The Colorado Test

We believe that the objective test of whether there is a reasonable possibility that extraneous information or influence affected the verdict should be used to determine if a new trial is required in cases like the instant one. The test is consistent with CRE 606(b)’s purpose of protecting the privacy of jurors. The objective test is also more likely to enhance the stability of jury verdicts than an approach that required jurors to reconstruct conditions of jury deliberations and retrace their mental processes sometimes long after a verdict has been rendered.

Because it eschews rebuttable presumptions that are conclusive in effect given the impossibility of rebuttal, the objective test does not require the invalidation of jury verdicts on the basis of insignificant extraneous information. Requiring a new trial where there is a reasonable possibility that the verdict was tainted by the introduction of outside information or influences into the jury deliberations will provide sufficient protection for the defendant.

In most cases involving juror misconduct, the trial court should hold a hearing before deciding whether there is a reasonable possibility that the misconduct affected the jury’s verdict.

In Wiser v. People, we pointed out that any test of prejudice must begin with recognition of the limitations placed upon the introduction of evidence of juror misconduct by CRE 606(b). That rule provides as follows:

Inquiry into validity of verdict or indictment.

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jurors’ attention or whether any outside influence was improperly brought to bear upon any juror.

Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

CRE 606(b). As the Court of Appeals recognized, CRE 606(b) prohibits inquiry into the deliberative processes of jurors.

The exceptions to C.R.E. 606(b) reflect the rule’s distinction between internal and external influences on juror behavior. If the influence on jurors was external, such as a bribe being offered or a bailiff commenting on a defendant’s out-of-court testimony, the exceptions permit juror testimony.

Colorado Rule of Evidence 606(b) applies to all cases, civil as well as criminal. The rule is designed to reinforce the finality of jury verdicts, to protect the sanctity of jury deliberations, and to safeguard the privacy of jurors.

This and other courts have recognized that jurors should be protected from harassment by a losing party.

However important these concepts are, in cases where the result of jury deliberations has been substantially undermined because of fundamental flaws in the deliberative process itself, courts must weigh the force of these policies against the overriding concern that parties to the judicial process be assured of a fair result.

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H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277