After they rule against you, leave jurors alone

I hate the idea of a lawyer being able to attack a juror after an adverse jury verdict even when the lawyer thinks a juror lied during jury selection. The Supreme Court does too.

For the unanimous opinion of the Court, written by Justice Sonia Sotomayor, see Warger v. Shauers (Federal Rule of Evidence 606(b) precludes a party seeking a new trial from using one juror’s affidavit of what another juror said in deliberations to demonstrate the other juror’s dishonesty during voir dire).

Justice S. shows her sensitivity to Justice Scalia’s hatred of legislative history, and her sense of humor as well. She wrote: “For those who consider legislative history relevant, here it confirms that this choice of language was no accident.” Slip. op. at 7. I celebrate unanimous opinions, particularly when (1) they are clearly right and (2) deal with the federal rules. Justice Sotomayor knows how to obtain unanimity, and that’s good for those of us who toil in the corn fields.


As always, thanks to Howard Bashman and How Appealing.

15 responses

  1. RGK,
    We’ve had this type of critter pop up in state appellate courts. I hate it. Lawyers can really give their profession a bad name by digging too deeply into issues like this in an overzealous attempt to help their client. I’ve seen jurors dragged out of their lives almost a decade afterwards and subjected to hours of questioning in an attempt to get them to admit that someone had stolen another juror’s underwear, which somehow invalidated the verdict.

    There’s effective representation, and then there’s being an asshole. I wish people would learn the difference.


  2. There really was no need to use the affidavit from the juror in the case decided by the Supreme Court. Most states now have on-line access to court records. Once you get the basic information from the “cooperating” juror, an attorney can investigate further (in a case like this get a certified copy of the traffic case for the other juror’s son) and then simply ask the juror who failed to answer during voir dire why she did not mention it during voir dire.

  3. The first question I have is why this case was cert-worthy. The rule says you can’t introduce juror deliberations into evidence. You can’t use admissions in settlement negotiations either. You can get the information elsewhere. What you have to do is put your judge under surveillance, and do background checks on your jurors when you learn their names. This becomes the new standard of care.

  4. You have a right to a fair and impartial tribunal. Jurors give answers in voir dire under oath. What is the remedy for juror dishonesty which deprives a litigant of his or her right to that impartial tribunal?

    No matter where you draw a line, a lawyer will cross it.

  5. I respect the rule. But I cannot help but sympathize with the lawyer who invested his blood, sweat and dollars in the case (on contingency no doubt), then gets blindsided by a juror that lied to get on the jury. Its just not right (exclaimed on a street corner out to the vastness of space)!!

  6. I think Justice Kagan started this trend, because I recall reading SCOTUS cases where Scalia was still dissenting from Sotomayor’s legislative history discussions but not Kagan’s.

    When reading your post, I immediately thought of Kagan’s opinion in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak: “The legislative history, for those who think it useful, further shows . . . .” Slip op. at 9 n.5. But when googling for it, I found an earlier one of hers, from 2011, doing the same thing: “Finally, for those who consider legislative history useful, the key Senate Report . . . .” Tapia v. United States, slip op. at 12.

    Whoever started it, they’re ingenious!

  7. The remedy in that situation is clear. The litigant gets a new trial. That’s an easy question.

    The next question is what dishonesty deprives a litigant of a fair trial. That’s a much harder question.


  8. AMP,

    If a juror lies while under oath, there are fellows and gals called “prosecutors” and they can handle such extremely rare situations when necessary. All the best.


  9. Anon.,

    The vastness of space being very, very, very cold replied:

    “If a lawyer really believes a juror lied, then take that concern to the US Attorney and, after that, stop taking contingency cases.”

    All the best.


  10. Judge that’s unbelievably flippant.

    Not to mention, the SCOTUS’ ruling was narrow – they were just interpreting the rule. The mistake they made, I think, was in dealing with the constitutional objection – the unquestioned right to an impartial jury both in civil and criminal cases – in a footnote, saying only that this case didn’t present that question. They didn’t say WHY it didn’t present that question because there’s no principled reason to conclude that.

    They’re the SCOTUS. They get to be arbitrary if they want.

    Contingency cases are hard and risky work for lawyers. And the lawyers, somewhat like their clients, are entitled to a fair shot. The Plaintiff didn’t get one here, but apparently the courts that reviewed the case didn’t think it was “serious” enough to raise constitutional concerns.

    That might be right, and in some ways the damage of this decision might be minimal – e.g., after you hear from the first juror you try to get other evidence about the second juror’s bias and that way you don’t run into rule 606(b) at all.

    One thing the SCOTUS definitely did NOT rule here was that the lawyers who “lost” have to “leave the jurors alone”. Although that is generally a good idea, if a lawyer has reason to believe the jury was biased against his client he is obligated to do the opposite.

    Another assumption underlying your comment is that the US Attorney and a criminal prosecution is the remedy here if a juror lies in voir dire to conceal a bias. Aside from the fact that few if any situations like that could (or should) be prosecuted, it’s an opinion that also implies a belief that serious wrongs are addressed through criminal prosecutions, and that civil wrongs are comparatively unserious, even though at some point – apparently not here according to the SCOTUS but nevertheless at some point – constitutional 7th amendment and due process concerns come into play.

    So, yours is a particularly troubling viewpoint coming from a federal judge. But I’m sure you have a lot of company on the bench around the country.

  11. Three (hundred) cheers to the SCOTUS for getting it right. Otherwise, every lawyer will ask a vague question in voir dire (“Can you be fair and imprtial?”), and then after an adverse verdict will rely on a specific statement the juror made during or after trial to claim that the specific (later) statement shows the earlier (vague) statement to be an intentional lie. The way to avoid this is to ask pointed questions during voir dire. And if you discover evidebce that the juror lied apart from the juror’s own statements during or after deliberations, you are free to rely on that evidence in moving for a new trial.

  12. And how, pray tell, do you propose to secure that remedy, if you are barred from presenting the evidence you need to show that you are entitled to it?

  13. Judge, I am unaccustomed to receiving room service from members of the bench, but that comment is silly.

    The gulf between theory and practice makes the Pacific look like a mud puddle by comparison. In theory, you get a turkey dinner. In practice, you have it pureed and shoved up your ass, courtesy of Uncle Sam.

    No one ever prosecuted Bill Clinton for perjury. Or Justice Thomas, for lying under oath. Or George W. Bush, for insider trading. Hell, those fellows and gals won’t even prosecute obvious crimes against humanity! What reasonable assurance do you have that they will divert scarce resources from murder and drug-trafficking cases just to go after a juror who committed perjury?

    Your only practical remedy was the one Warger sought, as even if the prosecutor actually did his job and that juror were imprisoned, you would still be deprived of your “right” to a fair tribunal and left without a viable remedy.

    The paradox is that now, you are forced to do a private investigation of every single juror to defend against what happened in Warger, as you can only introduce outside evidence. So much for leaving them alone….

  14. “After they rule against you, leave jurors alone”

    Judges too (it is ok to beg for reconsideration though).

    Judges are better ’cause they can legally change their minds.

    Jurors are hard headed, intransigent, and can’t change their minds.

    Some folks live their entire lives as jurors.

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