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EVI DENTI ARY LAW
Do the Federal Rules of Evidence Permit a Party Moving for a New Trial
to Introduce Evidence of Alleged Juror Dishonesty During Voir Dire?
CASE AT A GLANCE
Randy Shauers collided with Gregory Warger during a motor vehicle accident, resulting in Wargers serious
bodily injury. After an initial trial ended in mistrial, Shauers prevailed during a second jury trial. After the
trial, one juror submitted an afdavit to Wargers counsel challenging the motives of the jury foreperson,
who used the afdavit as a basis for a motion for a new trial based on the alleged dishonesty of the jury
foreperson during voir dire. The district court denied Wargers motion. The Eighth Circuit afrmed, holding
the verdict was sacrosanct under Federal Rule of Evidence 606(b) but for limited exceptions not applicable
in the case at hand. Warger led a successful petition for certiorari. There is a circuit split on the issue. The
Third and Tenth Circuits follow the Eighth Circuit rule, while the Ninth Circuit disagrees.
Warger v. Shauers
Docket No. 13-517
Argument Date: October 8, 2014
From: The Eighth Circuit
by Rachel K. Paulose
ISSUE
Does Federal Rule of Evidence 606(b) permit a party moving for a
new trial to introduce evidence of alleged juror dishonesty during
voir dire where the juror allegedly discussed her life experiences
during jury deliberations after swearing to render a verdict based
solely on the facts and law presented during trial?
FACTS
On August 4, 2006, respondent Randy D. Shauers, operating a
pickup truck pulling a camper trailer, collided with petitioner
Gregory P. Warger, riding a motorcycle, on U.S. Highway 385 in
South Dakota. Warger suffered serious injuries, including the loss
of his lower left leg.
On December 12, 2008, Warger sued Shauers in the United States
District Court for the District of South Dakota, asserting claims of
negligence resulting in permanent disability, medical expenses,
pain and suffering, property damage, lost wages, and loss of
enjoyment of life, and claiming diversity jurisdiction. Shauers
denied the allegations and claimed afrmative defenses, including
contributory negligence.
The case was tried in front of a federal jury twice. The rst jury
trial began on July 20, 2010, but ended in mistrial when Shauerss
counsel violated the courts in limine order prohibiting experts from
offering legal opinions.
The second jury trial commenced on September 20, 2010, and the
jury returned a verdict for Shauers on September 29, 2010.
On October 25, 2010, Warger led a motion for judgment as a
matter of law under Fed. R. Civ. P. 50 or for a new trial under Fed.
R. Civ. P. 59. Warger claimed juror misconduct as grounds for a
new trial. Specically, Warger claimed the jury foreperson, Regina
Whipple, lied during voir dire about her impartiality, and tainted jury
deliberations by stating sympathy for Shauers. Warger submitted an
afdavit from Stacey Titus, another juror in the case, in which Titus
claimed Whipple spoke about her own daughters experience in
causing a vehicle accident that resulted in a mans death. According
to Titus, Whipple claimed that if her daughter had been successfully
sued, it would have ruined her life. Titus claimed Whipple swayed
other jurors with an emotional appeal rather than attention to the
facts, evidence, and law. Finally, Titus stated, I am still concerned
regarding the bias expressed by this juror.
During voir dire, Whipple had stated that she would not have
difculty awarding damages, if appropriate, for future medical
expenses and pain and suffering. In response to questions about
impartiality, Whipple did not volunteer her daughters experience.
Wargers counsel never specically asked the prospective jurors
whether they or their close family or friends had ever been involved
in a motor vehicle accident resulting in grave bodily injury or death.
In considering Wargers motion, the trial court acknowledged that
under the Supreme Courts decision in McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548 (1984), it could grant a new trial if
presented with admissible evidence of juror bias. But the court also
found that the question of what constitutes admissible evidence
was constrained by Fed. R. Evi. 606(b).
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Federal Rule of Evidence 606(b) provides:
(1) Prohibited Testimony or Other Evidence. During
an inquiry into the validity of a verdict or indictment, a
juror may not testify about any statement made or incident
that occurred during the jurys deliberations; the effect
of anything on that jurors or another jurors vote; or
any jurors mental processes concerning the verdict or
indictment. The court may not receive a jurors afdavit or
evidence of a jurors statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was
improperly brought to the jurys attention;
(B) an outside inuence was improperly brought to
bear on any juror;
(C) a mistake was made in entering the verdict on
the verdict form.
The district court cited the Supreme Courts rationale for the rule,
as explained in Tanner v. United States, 483 U.S. 107 (1987):
There is little doubt that postverdict investigation into
juror misconduct would in some instances lead to the
invalidation of verdicts reached after irresponsible or
improper juror behavior. It is not at all clear, however,
that the jury system could survive such efforts to perfect
it. Allegations of juror misconduct, incompetency, or
inattentiveness, raised for the rst time days, weeks, or
months after the verdict, seriously disrupt the nality of
the process. Moreover, full and frank discussion in the
jury room, jurors willingness to return an unpopular
verdict, and the communitys trust in a system that relies
on the decisions of laypeople would all be undermined by a
barrage of postverdict scrutiny of juror conduct.
The court determined at the outset that the only possible applicable
Rule 606(b)(2) exceptions in the case at hand were (A) and (B).
Further, the court drew a distinction between a juror drawing on her
own life experiences to perceive the evidence and judge credibility,
which the court viewed as legitimate, as opposed to conducting
outside research or contacting third parties, which the court
viewed as illegitimate under Rule 606(b)(2)(A) or (B). The court
analogized juror Whipples remarks to fall more into the legitimate
category of life experiences rather than the illegitimate category of
external inuences. Moreover, the court ruled, the proper time to
learn about a jurors life experiences was during voir dire, not after
the trial.
Ultimately, the court found that the type of biases the foreperson
allegedly expressed in this case, while unfortunate, do not fall
within any exception to Rule 606(b). Warger argued he offered
the Titus afdavit not to challenge the validity of the verdict, but
to show Whipple lied during voir dire. The court found Wargers
attempted distinction unpersuasive, and cited the Tenth Circuit in
stating, Allowing juror testimony through the backdoor of a voir
dire challenge risks swallowing the rule. The court also pointed
out that although the initial purpose of Wargers challenge was to
show Whipple lied during voir dire, the ultimate purpose was to
support his motion for a new trial. Thus, Wargers true motive was
to use the Titus afdavit to challenge the validity of the verdict. The
court found Rule 606(b) barred the admission of the Titus afdavit.
Accordingly, on March 28, 2012, the district court denied Wargers
motion for a new trial.
Warger appealed the district courts decision. On July 24, 2014, the
United States Court of Appeals for the Eighth Circuit afrmed the
decision of the district court.
Warger argued Whipple brought extraneous prejudicial
information to jury deliberations within the meaning of Rule
606(b)(2)(A). The appellate court disagreed, holding that
extraneous information meant objective events such as
publicity and extra-record evidence reaching the jury room, and
communication or contact between jurors and litigants, the court,
or other third parties. The Eighth Circuit ruled that extraneous
information did not include subjective prejudices, motives, or
personal experiences, which the court said jurors inevitably brought
to their deliberations.
Warger claimed his motive was not to challenge the verdict, but
simply to show Whipple was dishonest during voir dire. The Eighth
Circuit rejected Wargers attempt to dissociate his motion from
the connes of Rule 606(b). The Eighth Circuit noted the circuit
split between the Ninth Circuit, which accepted Wargers proposed
distinction, and the Third and Tenth Circuits, which have rejected
the distinction.
Although the appellate court agreed that evidence could be
introduced to show dishonesty during voir dire for the purpose of
contempt proceedings against a juror, the same evidence could not
be used to challenge the underlying verdict. The court held, In
order to achieve nality in the litigation process and avoid relentless
post-verdict scrutiny and second guessing, occasional inappropriate
jury deliberations must be allowed to go unremedied. The Eighth
Circuit ruled the district court did not abuse its discretion in
denying Warger a new trial.
Warger led a petition for certiorari before the Supreme Court on
October 22, 2013. On March 3, 2014, the Supreme Court granted the
petition.
CASE ANALYSIS
Warger argues that testimony about a jurors alleged statements
during jury deliberations should not be inadmissible under Federal
Rule of Evidence 606(b)(1). Warger claims that his attempt to show
juror dishonesty during voir dire does not implicate an inquiry into
the validity of a verdict, and therefore does not implicate the rule
at all.
Rather, Warger contends the error he seeks to correct is a structural
error addressed by the Supreme Courts decision in McDonough.
Under McDonough, a party should receive a new trial after showing
that a juror failed to answer honestly a material question during
voir dire, where a truthful response would have provided grounds
for a challenge for cause. Warger argues that under McDonough,
juror Whipples allegedly inaccurate answers during voir dire have
nothing to do with challenging the verdict. Rather, Warger claims
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the challenge is to the integrity of the voir dire process. Indeed,
Warger argues he need not even show Whipples false statements
impacted the jury verdict at all. In essence, Warger attempts to
divorce the specic wrong he claims from the ultimate relief he
seeks.
Shauers responds that the plain language of Rule 606(b) bars
evidence regarding a jurors statements during jury deliberations.
Fundamentally, Shauers argues that Warger articially separates
his claimed wrong from his desired remedy. Shauers writes, As
an initial matter, an inquiry into juror dishonesty at voir dire, in a
proceeding aimed at vacating the verdict, necessarily is an inquiry
into the validity of the verdict. Shauers urges the court to consider
the context in which Warger seeks to introduce evidence of alleged
juror misconduct.
[Warger] sought to introduce evidence of purported juror
misconduct and dishonesty during voir dire as part of an
inquiry into the validity of the verdict. If the purpose of a
proceeding is to attack the validity of the verdict, as it was
here, to allow such evidence, by characterizing the inquiry
as one into juror dishonesty during voir dire, is manifestly
an evasion of the plain language of Rule 606(b)(1).
Shauers further contends Warger has not met the McDonough
standard for a new trial based on alleged juror dishonesty during
voir dire. Shauers argues that Whipple did not fail to truthfully
answer any question posed to her during voir dire, but rather
declined to volunteer information regarding her daughters accident,
which counsel never requested in any event. Moreover, even if
Whipple had volunteered information regarding her daughters
accident, Warger cannot show Whipple would have automatically
been dismissed for cause when there is no indication she could not
have been fair to both sides despite her life experiences.
Warger argues both the common law predecessor to Rule 606(b)
and the drafting history of the rule support his attempt to inquire
into a jurors alleged dishonesty during voir dire. Warger cites cases
permitting testimony regarding juror dishonesty during voir dire
for the purposes of contempt proceedings or a motion for a new
trial. Warger also cites common law permitting juror testimony
about dishonesty during voir dire while barring testimony about
the means by which the verdict was reached. Warger argues that
because his claim falls into the former category of the integrity
of the voir dire process, rather than the latter category of a direct
attack on the verdict, the common law precedent supports his claim.
Moreover, Warger argues that the drafting history of Rule 606(b)
indicates that the drafters assumed the rule would bar juror
testimony regarding the verdict process, rather than the voir dire
process Warger says he challenges in the case at bar. Warger argues
that Rule 606(b) simply protects the manner in which the jury
reached its verdict.
Shauers contends the common law and legislative history bar the
introduction of testimony regarding a jurors statements during
jury deliberations. Shauers reads the common law precedent
and legislative history to broadly prohibit postverdict attacks on
the jurys deliberations. Shauers asserts that both the law and
legislative history indicate Rule 606(b) was enacted to serve the
all-important purposes of promoting freedom of juror deliberation,
ensuring the nality of verdicts, shielding jurors from harassment
by dissatised litigants, and protecting the jury system.
Warger also contends that voir dire is effective only to the extent a
prospective juror provides truthful answers. Should a prospective
juror provide false answers during voir dire, Warger contends a
litigant is deprived of his right to an impartial jury. Warger warns
that such a deprivation is of special concern where juror dishonesty
involves racial bias, and therefore potential constitutional
deprivations. Although Warger concedes he claims no racial bias
in the instant case, he nonetheless urges the Court to consider the
ramications of any decision barring testimony regarding any type
of juror untruthfulness during voir dire. In any case, Warger argues
there exists a Sixth Amendment right to a fair criminal trial, and a
due process right to a fair civil trial. In either case, Warger claims
a juror who offers false responses during voir dire impinges on any
litigants constitutional right to a fair trial.
Shauers responds that there are other sources of protection for
a litigants right to a fair jury that would not erode Rule 606(b).
Further, Shauers argues the burden is on counsel to ask questions
uncovering any potential bias. Where, as here, counsel failed to do
so, counsel cannot employ Rule 606(b) as a means of attacking the
verdict, according to Shauers.
Warger alternatively argues that juror testimony about alleged
dishonesty during voir dire is admissible under Federal Rule of
Evidence 606(b)(2)(A). Warger contends testimony about juror
untruthfulness during voir dire should be admissible under the
extraneous prejudicial information exception in Rule 606(b)
(2)(A). According to Warger, juror Whipples statements about
her daughters life experience constitute extraneous prejudicial
information she improperly brought to the jurys attention.
Shauers responds that the extraneous prejudicial information
barred by Rule 606(b)(2)(A) is typied by third-party contact
or media tainting, not personal feelings or experiences such as
those juror Whipple allegedly related during the trial. Moreover,
Shauers argues that the proper time to discover such inuential life
experiences is during voir dire, when counsel has the opportunity
and responsibility to thoroughly question prospective jurors. But,
says Shauers, a complete sanitizing of the jury room is not only
impossible, but undesirable.
Warger nally dismisses as unfounded any policy reasons to prohibit
inquiry into jury deliberations. First, Warger asserts jurors should
not have any expectation of privacy as to their discussions. Warger
notes that Rule 606(b) presently does not prohibit jurors from
speaking out about jury negotiations postverdict. Indeed, many
do, especially in high-prole cases. Second, Warger points out that
evidence regarding jury deliberations is already admissible, e.g., in
contempt proceedings, without any evident chilling effect despite
the threat of criminal sanctions for false statements during voir
dire. Third, Warger relates the experience of the Ninth Circuit,
which for nearly thirty years has permitted evidence of juror
dishonesty during voir dire without dire results.
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Shauers warns that if Wargers view of the law is accepted, it will
lead to postverdict harassment of jurors who act in good faith.
Shauers contends that jury deliberations, intended to be full, frank,
and private discussions, will instead become the constant subject
of public investigation. Shauers also predicts that jurors will be
chilled from unfettered argument for fear that their words will be
twisted and used against them by lawyers attempting to relitigate
verdicts with which they disagree.
SIGNIFICANCE
The ruling in this case could have a major impact on the nality
and integrity of jury verdicts. A sweeping decision endorsing all
Shauerss theories could prevent any trial court from ever hearing
legitimate evidence regarding any improper motive for rendering
a verdict, e.g., racial bias in a criminal trial, which could violate a
partys constitutional right to receive a fair trial.
However, should the Court rule in Wargers favor, it may open a
Pandoras box of challenges by subjecting any jury verdict to a
plethora of potential posttrial attacks. Trial lawyers might feel
emboldened to contact jurors in an effort to dredge up information
to attack fellow jurors. Additionally, jurors who understand the
consequence of a pro-Warger decision might be intimidated
from speaking openly during jury deliberations for fear of being
subjected to perjury or contempt charges by other disgruntled jurors.
Finality of verdicts could be shaken, and attacks on verdicts could
be emboldened. In the words of the Solicitor General as amicus,
Wargers view of Rule 606(b) could create an exception that
swallows the rule.
Rachel K. Paulose is a graduate of Yale Law School. She worked
as an associate at Williams & Connolly LLP. She has also served
extensively in government. Rachel may be reached at rkpaulose@
hotmail.com.
PREVIEW of United States Supreme Court Cases, pages 1821.
2014 American Bar Association.
ATTORNEYS FOR THE PARTIES
For Petitioner Gregory P. Warger (Kannon K. Shanmugam,
202.434.5000)
For Respondent Randy D. Shauers (Sheila L. Birnbaum,
212.849.7000)
AMICUS BRIEFS
In Support of Petitioner Gregory P. Warger
National Association of Criminal Defense Lawyers (R. Reeves
Anderson, 303.863.1000)
Professors of Law (Danielle Spinelli, 202.663.6000)
In Support of Respondent Randy D. Shauers
American Association for Justice (Jeffrey R. White, 202.944.2839)
Law Professors (Paul M. Smith, 202.639.6000)
United States (Donald B. Verrilli Jr., Solicitor General,
202.514.2217)