Federal Rule of Evidence 606(b) precludes jurors from impeaching their verdicts after trial through testimony concerning anything internal to the jury deliberation process. Accordingly, jurors can’t invalidate their verdicts by testifying after trial that jurors (a) misunderstood jury instructions (even in death penalty cases), (b) used and sold drugs during deliberations, or (c) threatened one another during deliberations.
Frankly, some of the applications of this Rule (and state counterparts) deeply disturb me as when (most) courts preclude jurors from impeaching their verdicts based upon allegations of juror prejudice, such as extreme racial bias during deliberations. This disquiet prompted me to write my new article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense. During my research for the article, I found several cases where courts precluded jurors from impeaching their verdicts after trial through allegations of biased comments by jurors regarding a party’s race, religion, ethnicity, or national origin.
I was shocked, however, that I did not uncover a single case where a juror sought to testify regarding disparaging or stereotypical remarks made by a juror concerning a party’s gender. And I say I am shocked because it is pretty well known that rape shield rules were passed in response to strong empirical evidence that jurors in rape and sexual assault trials were very frequently engaging in stereotypical thinking regarding women after their past sexual partners were paraded into court.
So, what should we take from my research? It seems doubtful to me that jurors exhibit gender bias any less than they exhibit bias regarding religion or natioal origin. Indeed, there are many exceptions to the rape shield rule and many opportunities for attorneys to inject sexism into rape, sexual assault, and sexual harassment trials (and plenty of opportunities for sexism to be injected into other types of trials). Could it be that a certain degree of sexism is so ingrained in society that jurors either don’t recognize it or don’t recognize it as sufficiently prejudicial to come forward? Is it that jurors do come forward, but attorneys think that allegations of gender bias are less likely to result in a new trial than allegations of other bias?
Frankly, I have no idea why there are no such cases, and I would love to hear whether any FLP readers have any insights into the matter. I would also love to hear your thoughts on another matter.
While, as I noted, I found no cases where a juror alleged disparaging or stereotypical remarks made by a juror concerning a party’s gender during deliberations, I did find one cases of sexism during deliberations. In United States v. Stansfield, 101 F.3d 909 (3rd Cir. 1996), three female jurors were “emotionally distraught” and sought to impeach their verdicts, claiming that
they had been pressured into concurring with the guilty verdicts by the jury foreman who, along with other jurors, had used gender-based insults to intimidate them. The jurors stated as an example that they were called”stupid female[s]“and were told that they”didn’t have minds”because they are women….One of the jurors stated that a fourth juror, who had not felt well during the jury poll, also had been affected by these gender-based insults. All three indicated that, but for the pressure that the other jurors exerted on them, they would have voted for acquittal on Counts II, VI, and VII.
My question is two-fold. First, does it make sense to apply Federal Rule of Evidence 606(b) in such cases? The interests that the Rule is supposed to further include: (a) allowing jurors to deliberate without fear that their deliberations will later be aired out in open court, (b) preventing jurors from being harassed by the losing party, (c) preserving the finality of verdicts, and (d) preventing unreliable testimony by jurors, who are in effect impeaching themselves and not simply their verdicts. Do these interests outweigh the appealing party’s need for such testimony and the court’s interest in precluding such comments during deliberations? Does the analysis change if it is a death penalty case? These are tough questions, and I don’t know where I stand on them.
Second, I wonder whether FLP readers agree with the distinction drawn by Minnesota. According to Minnesota Rule of Evidence 606(b), jurors can impeach their verdicts through allegations of actual or threatened physical violence between jurors but not through allegations of psychological intimidation or coercion between jurors. In explaining this dichotomy, the Comment to the Rule states:
“The amended rule allows jurors to testify about overt threats of violence or violent acts brought to bear on jurors by anyone, including by other jurors. Threats of violence and use of violence is clearly outside of the scope of the acceptable decisionmaking process of a jury. The pressures and dynamics of juror deliberations will frequently be stressful and jurors will, of course, become agitated from time to time. The trial court must distinguish between testimony about ‘psychological’ intimidation, coercion, and persuasion, which would be inadmissible, as opposed to express acts or threats of violence.”
Do FLP readers agree? I don’t see a distinction between a juror punching another juror and a juror psychologically intimidating another juror, such as through gender-based insults. In fact, I might expect the latter to have more impact on the decisionmaking process. Do FLP readers have any thoughts on the matter?