Post-Trial Inquiry into the Jury’s Verdict
The active trial lawyer is occasionally faced with the important issue of how to handle possible post-trial contacts with trial jurors. If these contacts are not handled properly, the lawyer’s conduct may conflict with well-established ethical and legal principles. This issue might arise in a number of ways:
Scenario One: A client was indicted in federal court in a drug conspiracy case involving two other codefendants. Following a three-week trial, the jury convicts your client of conspiracy but acquits the two codefendants, an apparent inconsistent verdict. Is it appropriate to interview one or more of the jurors about the basis for their verdicts in order to gather information which will support a post-trial motion for judgment of acquittal or motion for new trial?
Scenario Two: You represent a plaintiff in a personal injury lawsuit. In a special verdict, the jury finds the defendant was 75 percent negligent, and the plaintiff was 25 percent negligent. The jury awards the plaintiff $75,000 which is subsequently reduced by the trial judge, when entering a judgment, on the basis of each party’s negligence. You subsequently learn that, in determining the amount of damages, the jury reduced the amount by 25 percent based upon the plaintiffs negligence. May you secure affidavits from the jurors to support a motion to correct the verdict or for additur to conform to the jury’s actual intentions?
Scenario Three: You have just tried a lengthy civil or criminal case. After four days of deliberations, the jury remains deadlocked. A mistrial is declared, and the trial judge orders a new trial commencing in one month. Can you interview the jurors to determine the weak and strong points of your case in order to prepare for the upcoming retrial?
In each of the above scenarios, and indeed under many other circumstances., a post-verdict interview with one or more jurors could provide information which would be extremely helpful to a client’s case. In light of the ethical duty to represent zealously a client’s interests, most lawyers would feel obliged to such an inquiry. However, the courts the generally disfavor lawyer contact with jurors after the conclusion of litigation except when there is a showing of illegal or prejudicial intrusion into the jury process. United States v. Garcia, 732 F.2d 1221 (5th Cir. 1984) (quoting United States v. Riley, 544 F.2d 237 (5th Cir. 1976), cert. denied, 430 U.S. 932 (1978)). In fact, most jurisdictions have rules which not only prohibit attorneys from interviewing jurors after a trial without the court’s permission, but which also strictly limit the scope of any allowed inquiry.
The rules restricting post-trial inquiry into a jury’s verdict attempt to balance competing societal interests. On the one hand, consistent with the sixth and seventh amendments to the United States Constitution, litigants are entitled to an impartial jury and a jury verdict which is not in any way tainted by impermissible extraneous influences.’ On the other hand, it has long been recognized that rules disallowing inquiry into jury verdicts are essential to encouraging the finality of jury verdicts, promoting the freedom of deliberation and protecting jurors. United States v. Pavon, 618 F.Supp. 1245 (S.D. Fla. 1985), affd., 802 F.2d 1397 (11th Cir. 1986); Government of the Virgin Islands v. Gereau, 523 F.2d 140 (3d. Cir. 1975), cert. denied, 424 U.S. 917 (1976). Such rules also conserve judicial resources by foreclosing lengthy adversary proceedings on marginal claims of juror misconduct.2 In McDonald v. Pless, 238 U.S. 264, 267-268 (1915), the Supreme Court explained the necessity of shielding jury deliberations from public scrutiny:
[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.
More recently, the Supreme Court stated that “full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of lay people would all be undermined by a barrage of post-verdict scrutiny of juror conduct.” Tanner v. United States,
U.S., 107 S.Ct. 2739, 2748 (1989) (citing 96 Harv. L. Rev. at 888-892).
The Florida Bar has enacted the following rule relating to post-verdict interrogation of jurors (Rules Regulating The Florida Bar, 4-3.5(d)(4)):
(d) A lawyer shall not:
.. . .
(4) After dismissal of the jury in a case with which he or she is connected, initiate communication with or cause another to initiate communication with any juror regarding the trial except to determine whether the verdict may be subject to legal challenge. Provided, a lawyer may not interview jurors for this purpose unless he or she has reason to believe that grounds for such challenge may exist. Provided further, before conducting any such interview the lawyer must file in the cause a notice of intention to interview setting forth the name of the juror or jurors to be interviewed. A copy of the notice must be delivered to the trial judge and opposing counsel a reasonable time before such interview. The provisions of this rule do not prohibit a lawyer from communicating with veniremen or jurors in the course of official proceedings or as authorized by court rule or written order of the court.
In addition, there are specific federal and state rules which address post-trial contact with jurors. The remainder of this article will be divided into separate discussions of the applicable rules and case law on this issue which govern federal and state court practice.
Federal Practice
Each of Florida’s three federal districts have adopted local rules which relate to post-trial interviews with jurors. Rule 16(E), Rules of the U. S. District Court for the Southern District of Florida, requires that an attorney seek court approval prior to interviewing jurors and allows the court to limit the time, place, and manner under which the interview shall be conducted. Additionally, the rule requires that counsel shall avoid embarrassing any juror or influencing the juror’s action in any subsequent jury service. The Northern and Middle Districts have adopted the Code of Professional Responsibility of the American Bar Association, specifically E.C. 7-29 and D.R. 7-108, which similarly restrict interviews with jurors.3
The use of juror testimony to impeach a verdict in federal criminal and civil trials is governed by Federal Rule of Evidence 606(b). Rule 606(b) has its roots in the common law rule which absolutely prohibited the admission of juror testimony to impeach a jury verdict.4 Subsequently, exceptions to the harsh common law rule were recognized in situations in which an “extraneous influence” was alleged to have affected the jury. Tanner v. United States, 107 S.Ct. at 2746 (citing Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 36 L.Ed. 917 (1892)).
Rule 606(b) 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 that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Thus, under Rule 606(b), the only appropriate area of inquiry is whether “extraneous prejudicial information” was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror. Jurors are prohibited from testifying about matters occurring during the course of the deliberations. United States v. Sjeklocha, 843 F.2d 485, 488 (1lth Cir. 1988); Watson v. Alabama, 841 F.2d 1074, 1076 n.2 (11th Cir.), cert. denied, 109 S.Ct. 164 (1988). For example, in United States v. Badolato, 710 F.2d 1509 (11th Cir. 1983), immediately after trial, two jurors approached two of the defendants and told them that unanimous guilty verdicts had been reached because the other jurors refused to recess until the next morning. The jurors also related that two other jurors wanted to leave for vacations; two of the jurors nearly engaged in a fist fight; one juror slept during the deliberations; four jurors were “brow-beaten” into submission with one being reduced to tears; and finally, that the jurors believed that the judge’s instructions required them to reach a verdict. Notwithstanding, the 1lth Circuit held that the jurors’ statements were inadmissible to impeach the verdict because none of the matters described related to extraneous information or outside influence on the jury.
The U. S. Supreme Court recently defined “extraneous influence” in Tanner v. United States, a case which originated in the Middle District of Florida. In Tanner, following the trial, two jurors contacted one of the defense attorneys and reported that several of the jurors had consumed alcohol during the lunch breaks, causing them to sleep through the afternoon trial sessions. In violation of a prior court order and the local rule, the attorney sent an investigator to interview one of the jurors. The juror revealed that seven of the jurors regularly consumed alcohol during the noon recesses; four of the jurors had smoked marijuana regularly throughout the trial; and two of the jurors had used cocaine during the trial. The juror also stated that several of the jurors had fallen asleep during the trial.
The Court reviewed the distinction between internal and external influences, noting that physical or mental incompetence of a juror had been traditionally considered an internal rather than an external matter. The Court stated, [h]owever severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an ‘outside influence’ than a virus, poorly prepared food, or a lack of sleep.” Tanner v. United States, 107 S.Ct. at 2748. Thus, the Court held that, under Rule
606(b),
jurors may not testify on juror conduct during deliberations, including juror drug use and juror intoxication.
If the trial court becomes aware that the jury may have been exposed to extrinsic influence or information, it must investigate the alleged impropriety. United States v. Gaffney, 676 F.Supp. 1544 (M.D. Fla. 1987). However, the court’s inquiry is limited to the existence of any impermissible extraneous influences, the nature of the extraneous influence and the manner in which it occurred. United States v. Avarza-Garcia, 819 F.2d 1043 (1lth Cir.), cert. denied, 108 S.Ct. 465 (1987); Llewellyn v. Stynchcombe, 609 F.2d 194 (5th Cir. 1980). The court cannot ask a juror whether the extraneous information had an effect on the outcome of the case. United States v. Posner, 644 F.Supp. 885 (S.D. Fla. 1986), affd., 828 F.2d 773 (1lth Cir. 1987), cert. denied, 108 S.Ct 11 10 (1988).
Once it is established that extrinsic material did find its way into the jury room, a new trial is required unless there is no reasonable possibility that the jury’s verdict was influenced by the improper extraneous material. United States v. Posner, 644 F.Supp. 885 (S.D. Fla. 1986), affd., 828 F.2d 773 (11th Cir. 1987), cert. denied, 108 S.Ct. 11 10 (1988); Wewellyn v. Stynchcombe, 609 F.2d 194 (5th Cir. 1980). In a criminal case, “the burden is on the Government to demonstrate the harmlessness of any breach to the defendant.” United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert. denied, 444 U.S. 827 (1979) (quoting United States v. Howard, 506 F.2d 865, 869 (5th Cir. 1975)).
Florida Practice
The rules in Florida state court pertaining to a juror’s impeachment of a verdict generally parallel those in the federal system. The Florida Supreme Court set forth the governing principl e in Marks v. State Road Department, 69 So. 2d 771, 774-775 (Fla. 1954):
That affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors; that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner; but that such affidavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the Court; the statements of the witnesses or the pleadings in the case, that he was unduly influenced by the statements or otherwise of his fellow jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror’s breast.5
“Matters which inhere in the verdict are those which arise during the deliberation process.” State v. Blasi, 411 So. 2d 1320, 1321-1322 (Fla. 2d DCA 1981). Examples of matters which inhere in the verdict include an allegation that a juror misunderstood the ‘court’s instructions, that a juror’s will was overborne by fellow jurors or that a juror was mistaken in his calculations or judgment. Id.; Preast v. Amica Mutual Insurance Company, 483 So. 2d 83 (Fla. 2d DCA), rev. denied, 492 So. 2d 1334 (Fla. 1985).
Thus, in Robinson v. MacKenzie, 508 So. 2d 1285 (Fla. 3d DCA), rev. denied, 518 So. 2d 1276 (Fla. 1987), in which the jury returned a verdict finding the defendant guilty of attempted first-degree murder rather than first-degree murder, due to the jurors’ misapprehension of the law, the Third District held it was error for the trial court to vacate the original adjudication and to adjudicate the defendant guilty of first-degree murder. “Verdicts based upon the jury’s misapprehension of the law are not subject to collateral attack because matters considered during deliberations inhere in the verdict.” Id. at 1286.6
In Department of Transportation v. Weggies Banana Boat, 545 So.2d 474 (Fla. 2d DCA 1989), after the verdict had been rendered and the jury discharged, two jurors advised the judge that they did not agree with the verdict and that their answers during the polling of the jury were not truthful. The Second District reversed the trial court’s order of mistrial, stating that the fact that a juror’s will was overborne is not a ground for overturning the verdict. Furthermore, a juror who responds affirmatively that the verdict rendered is his or her verdict will not be permitted, after discharge, to recant this vote.
The exposure of one or more jurors to an impermissible outside influence is not a matter which inheres in the verdict. State v. Blasi, 41 1 So.2d 1320 (Fla. 2d DCA 1981). For example, in Snook v. Firestone Tire & Rubber Company, which was a lawsuit for damages for injuries caused by an allegedly defective tire, plaintiff’s counsel learned after trial that one of the jurors, during the course of the trial, undertook an independent investigation of tire-mounting procedures and reported her findings to the other jurors. The Fifth District held that such conduct would be grounds for a new trial and remanded the case to allow counsel to interview jurors.
The fact that the jury arrived at a verdict by lot or by the quotient method is also a matter which does not inhere in the verdict and, thus, subjects the verdict to collateral attack. Preast v. Amica Mutual Insurance Company, 483 So. 2d 83 (Fla. 21 DCA), rev. denied, 492 So. 2d 1334 (Fla. 1985).
In Florida civil cases, the procedure for interviewing jurors is set forth in Florida Rule of Civil Procedure 1.43 l(h):
Interview of a Juror . If a party believes that grounds for legal challenge to a verdict exists, he may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within ten days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the ground for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview.
The procedure set forth in F1a. R. Civ. P. 1.431(h) would also be appropriate in criminal cases. Florida Rule of Criminal Procedure 3.600(b) authorizes a new trial if, inter alia, any of the following are established, provided substantial rights of the defendant were prejudiced thereby:
(2) That the jury received any evidence out of court, other than that resulting from an authorized view of the premises;
(3) That the jurors, after retiring to deliberate upon the verdict, separated without leave of court;
(4) That any of the jurors was guilty of misconduct.
A motion to interview jurors should be based on more than mere speculation of counsel. The cases of National Indemnity Company v. Andrews, 354 So. 2d 454 (Fla. 2d DCA), cert. denied. 359 So. 2d 1210 (Fla. 1978); and Schofield v. Carnival Cruise Lines, Inc., 461, So. 2d 152 (Fla. 3d DCA 1984), rev. denied, 472 So. 2d 1182
(Fla. 1985), suggest that it is appropriate to support such motions with sworn affidavits or statements of a juror or third party who had knowledge of an impropriety,
wrongdoing, or violation of the oath of a juror which affected the jury verdict. The decision to allow a jury interview is within the discretion of the trial court. Preast v. Amica Mutual Insurance Company, 483 So. 2d 83 (Fla. 2d DCA), rev. denied, 492 So. 2d 1334 (Fla. 1985). However,
it has been held that when a motion to interview jurors sets forth allegations that the movant has reasonable grounds to think the verdict may be subject to legal challenge, the trial court should permit an interview, limiting it as narrowly as possible,
to determine if such grounds do exist. Sconyers v. State, 513 So. 2d 11 13 (Fla. 2d DCA 1987):
Conclusion
The active trial lawyer should be aware of the ethical and legal principles which generally disfavor contacts with the jury by a lawyer at the conclusion of litigation. However, when there is a reasonable possibility that there has been an illegal or prejudicial intrusion into the jury process, the trial lawyer should be permitted by the court to conduct a limited inquiry into the jury’s verdict in order to make an appropriate legal challenge.
1 See United States v. Posner, 644 F.Supp. 885 (S.D. Fla. 1986), affd.., 828 F.2d 773 (1lth Cir. 1987), cert. denied, 108 S.Ct. 1110 (1988); Note, Public Disclosures of Jury Deliberations, 96 Harv. L. Rev. 886, 888-889 (1983).
2 Crump, Jury Misconduct. Jury Interviews, and the Federal Rules of Evidence: Is the Broad Exclusionary Principle of Rule 606(b) Justified?, 66 N. Car. L. Rev. 509, 512 (1988).
3 See Rule 2.04(c), Rules of the U.S. District Court for the Middle District of Florida, and Rule 4(k)(l), Rules of the U.S. District Court for the Northern District of Florida.
4 See 8 J. Wigmore, Evidence §2352, pp. 696-697 (McNaughton rev. ed. 1961).
5 See also Department of Transportation v. Fortune Federal Savings and Loan Association, 496 So. 2d 960 (Fla. 2d D.C.A. 1986); Snook v. Firestone Tire & Rubber Company, 485 So. 2d 496 (Fla. 5th D.C.A. 1986); Powell v. State, 414 So. 2d 1095 (Fla. 5th D.C.A. 1982).
6 See also Smith v. State, 330 So. 2d 59 (Fla. 1st D.C.A. 1976).
John M. Fitzgibbons practices with the Tampa firm of John Fitzgibbons, P.A., practicing primarily in the field of criminal trial practice. He is a graduate of the University of Iowa Law School. Formerly he served as the deputy chief assistant to the U.S. Attorney, Criminal Division, for the Middle District of Florida, and also as a trial attorney with the Public Integrity Section of the U.S. Department of Justice.
Kim W. Munch is an associate with John Fitzgibbons, P.A., with a primary practice in criminal appeals. She is a cum laude graduate of Tulane University School of Law. She previously served as an assistant attorney general in Florida and was also a law clerk to U.S. Magistrate Thomas G. Wilson, Middle District of Florida.
This column is submitted on behalf of the Trial Lawyers Section, Lawrence M. Watson, Jr., chairman, and Samuel R. Mandelbaum, editor.
