Evidence Notes File 6

LAW 6330 (4 credits)
Professor Pedro A. Malavet

6.0 Competency of Witnesses

  • One of the striking contrasts between the early common law and modern rules of evidence is in the area of competency of witnesses. The common law imposed a number of disabilities that rendered many potential witnesses incompetent to testify in court. Often in fact, the most knowledgeable people could not testify.

6.1 Competency under the Rules

Case: U.S. v. Lightly:

Is a person legally-determined to be criminally insane qualified to testify?

The authorities in cases like this actually do try to find out what happened. But, when there are such conflicting stories, the benefit of the doubt will likely go to the person with the worse injuries and/or to the person with the better prison disciplinary record.

  • The defense also attempted to have McDuffie testify. McDuffie would have testified that only he and not Lightly had assaulted McKinley. The court ruled McDuffie incompetent to testify because he had been found to be criminally insane and incompetent to stand trial, and was subject to hallucinations. l We believe this was error and that Lightly is entitled to a new trial.
  • Footnote 1 explains the "hallucinations":1. McDuffie believed that "Star Child" told him to kill McKinley because McKinley and Hodge, who apparently was a prison administrator, were going to kill him.
  • [Presumption of Competency]
    Every witness is presumed competent to testify, FRE 601, unless it can be shown that the witness does not have personal knowledge of the matters about which he is to testify, that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully. This Rule applies to persons considered to be insane to the same extent that it applies to other persons. In this case, the testimony of McDuffie's treating physician indicated that McDuffie had a sufficient memory, that he understood the oath, and that he could communicate what he saw. The district judge chose not to conduct an in camera examination of McDuffie. On this record, it was clearly improper for the court to disqualify McDuffie from testifying....
  • McDuffie's potential testimony would have substantially corroborated Lightly's testimony. His disqualification from testifying, therefore, cannot be considered harmless error.
  • THE CASEBOOK AUTHORS EXPLAIN: In extreme cases of mental impairment, courts may exclude the testimony as irrelevant under FRE 401; as unfairly prejudicial, misleading, or confusing under FRE 403; as lacking in current personal knowledge under FRE 602; or as contrary to the interests protected by FRE 611(a).


  • Malavet: Note that the answer to question 1 is NO, as a matter of law. The burden of proving incompetence is on the opposing side. That said, the doctor's testimony makes the decision easier.
  • 2. When the mental capacity of a proposed witness is questioned, does the trial judge have authority to order a psychiatric examination? [YES, but with due care.]
  • 4. *** United States v. Van Meerbeke, 548 F.2d 415 (2d Cir.) (witness found competent who, while on the stand, consumed opium taken from a trial exhibit), cert. denied, 430 U.S. 974 (1976).
  • [In a criminal case that I observed, a "brick" of cocaine used in evidence had broken in transit --it had actually been sent by FEDEX-- and a white, powdery residue covered the witness stand as the exhibit was being used during the trial. The cleaning crew had to be brought in quickly.]

United States v. Fowler: Oath or Affirmation

  • Fowler next complains that the court erred in refusing to allow him to testify after he refused either to swear or affirm that he would tell the truth or submit to cross-examination. At one point in their extended colloquy on the point, the judge offered to accept the simple statement, "I state that I will tell the truth in my testimony." Fowler was willing to do no more than laud himself in such remarks as, "I am a truthful man," and "I would not tell a lie to stay out of jail." Rule 603, Federal Rules of Evidence, is clear and simple: "Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation . . ." No witness has the right to testify but on penalty of perjury and subject to cross-examination. This contention is frivolous. ...
    • Malavet:
      Footnote 4 of the opinion explains that this all happened in front of the jury!
    • Remember the purpose of the oath: (1) To establish that the witness understands the obligation to tell the truth during testimony and (2) to subject them to perjury prosecutions for failing to testify truthfully.
  • 2. An affirmation differs from an oath by eliminating reference to swearing and to divine power.
  • 3. One purpose of the oath is to impress on the mind of the witness a duty to speak only the truth. A less obvious purpose is to make him amenable to criminal prosecution if perjured testimony is given.

Refusing to take an oath in a case might appear quite self-destructive, and it usually is just plain stupid. However, there may be certain reasons for refusing to swear or to affirm that might make sense, at least to the witness.

For example, some religious persons might refuse to take a religious oath in a non religious context. (Sometimes careful voir dire can establish that they can make an affirmation to tell the truth and the witness can testify.)

Other people might object to an oath or affirmation before a particular court for political reasons. For example, so-called militia people in the U.S. might object to the jurisdiction or even the legitimacy of the U.S. courts. 

Another reason might be that the witness simply does not wish to testify, perhaps due to fear or perhaps to avoid hurting someone else. For this last scenario, the court has the power of contempt to compel the witness to testify (or go to jail for refusing to do so).

Rickets v. Delaware: Children as witnesses

  • This is an appeal from a conviction of first degree rape of a five year old girl. The sole issue is whether the trial court committed reversible error in allowing the minor victim, then six years old, to testify without an adequate foundation to determine her competency as a witness. We find that under Rules 601 and 603 of the Delaware Rules of Evidence, the trial court did not err in permitting the child to testify. Accordingly, we affirm.
  • Before testifying, a voir dire examination was conducted during which the child stated that she went to church, that a lie was a thing that is not true, and that it was a bad thing to tell a lie. She testified further that if you tell a lie you sometimes get a spanking. She also promised to tell the truth about everything that she was asked in court. However, in response to questions by the defense attorney and the court, the witness indicated that she was not sure what heaven was.
  • The court ruled that the child was competent to testify because, although she did not understand the concept of perjury, she knew the difference between truth and falsehood, which was the only test of competency. [The Oath accomplishes the rest].
  • ["Conditional or Qualified Presumption"]
    Accordingly, under the Delaware Rules of Evidence the six year old rape victim is presumed competent to testify once the trial judge is satisfied by voir dire that the child understood her obligation to tell the truth, and the difference between truth and falsehood.
  • Here, the child testified that she promised not to tell a lie and to tell the truth about everything that was asked of her in court. The trial court was correct in concluding that this was a sufficient affirmation that she would testify truthfully.


  • [CB] 2. A number of states do not follow the "[Qualified] presumption of competency" approach of FRE 601 and continue to presume incompetency of children below a certain age. See, e.g., N.Y. Crim. Proc. Law § 60.20 (Consol. 1979) (12 years).
  • Malavet:
    • But note that in 2010 the age was lowered to 9.
    • Florida has adopted the modern view, and has created a thorough scheme to allow children to testify and to protect them when they do.
    • Rules Regarding Child Witnesses in Florida
      (from the Index to the Florida Statutes)
      90.605(2) Affirmations or Oaths.
      92.54 Closed Circuit Testimony (age 16)
      39.502 Dependency Proceedings
      914.17 Guardian Ad Litem
      90.606(1)(b), 92.53 Interpreters or Translators
      39.0133 Proceedings Relating to Children
      918.16 Sex Offense Witnesses under age 16
      90.803, 914.16, 918.16 Sexual Abuse and Child abuse proceedings
      39.502 Shelter Hearings
      90.612, 92.55 Special Protection (age 14)
      39.801, 39.809 Termination of Parental Rights proceedings
      92.53 Videotaped Testimony
      914.17 Witness advocates
  • [CB] 3. What if a child satisfies the competency requirement, but because of her age and the subject of her expected testimony the experience of testifying would be traumatic? Should the child be forced to testify? Does it depend on other factors? Who should make the decision?
  • Malavet:
    • [Remember the court's discretion under FRE 401, 403 and 611(a).] In Florida the judge has an express obligation to protect the child witness. See generally, Fla. Stat. sec. 92.55. Note that Florida does distinguish between minors (under 18), and children under 16, and children under 14. Sadly, as the notes indicate, the issue of child competency usually arises in the context of allegations that the child has been the victim of a horrible act either in a criminal prosecution or in child-custody or civil tort litigation. In that context, the testimony may be highly relevant and, at least potentially, highly probative. Here the court has to balance the rights of confrontation against trauma to the witness, among other things.
    • Ultimately we have to establish if the child is:
      • (1) describing, as best they can, the horrible acts of which they were victims;
      • (2) reciting what adults intentionally or unintentionally programmed them to say; or
      • (3) describing something they watched on Springer without understanding what it means or the real implications of the testimony.

6.2 Special Cases & Jury Mistake/Misconduct

Special Cases of Competency


You need to know what these are and when they might apply. As I mentioned in class, you need understand that they might apply because of (1) the express language of an FRE (e.g., the second sentence of FRE 601) or (2) by independent application of the Erie doctrine (though this last one is more controversial).

G. LAWYERS AS WITNESSES [Let this be a warning]

  • Note that this is generally a matter of Professional Conduct Rules rather than evidence. As I emphasized in class, you have to be very careful about it, especially when impeaching with prior inconsistent statements that only you heard (FRE 613).
  • The authors, in separate writings, explain: DR 5-102 can present a serious practical problem for an attorney attempting to ask a witness about a prior inconsistent statement made to the attorney. If the witness denies making the statement, the attorney may be barred from taking the stand to testify to the statement. Professor Graham has commented regarding this dilemma as follows: Upon objection, the court may very well advise counsel that the impeachment will not be permitted unless counsel is prepared to withdraw if his testimony as to the alleged conversation is required. Other judges, unwilling to countenance any delay resulting from withdrawal and substitution of counsel, would simply sustain an objection to the impeachment. . . .

Judges as Witnesses

  • Somewhat surprisingly, the common law did not consider a judge incompetent to testify in a trial over which the judge was presiding. FRE 605 is explicit in making this one of the few federal grounds of incompetency. [YES].
  • FRE 614 authorizes the court to question witnesses. Does this provision potentially conflict with FRE 605? [YES, read 605 as imposing some limits on judicial questioning.]
  • [Compare Florida Rules:]
    • 90.106 Summing up and comment by judge.
      A judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.
    • 90.615 Calling witnesses by the court.
      (1) The court may call witnesses whom all parties may cross-examine.
      (2) When required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party.

6.2 Jurors as Witnesses & Jury Mistake/Misconduct

  • Today the issue rarely arises because jurors who might be called as witnesses are usually identified in voir dire and excused from serving. Nonetheless, even where the potential of a juror to be called as a witness has been overlooked, FRE 606(a) prohibits testimony by that juror before the jury panel on which he serves.

Problem 6-A: Outside Influence: Publicity
Authors' Answers with my comments

  • This examination of the juror regarding matters that occurred prior to jury deliberations is not barred by FRE 606(a). The witness, even though a member of the jury, is not testifying "as a witness before that jury in the trial of the case in which he is sitting as a juror."
  • Malavet:
    • [This question might be turned into a technical minefield. I would add to the authors' answer "as long as the testimony is taken without the jury being present." But in any case, the juror may be questioned during the trial regarding jury misconduct and that subject-matter of questioning is not barred by 606(a).]
    • Note further that the inquiry is also not barred by 606(b), since 606(b) only kicks in after the verdict is rendered.
    • OTHER ITEMS If the sitting juror's substantive testimony is actually needed, one possibility would be to excuse them from the jury, and allow them to testify, provided that enough jurors remain to render a proper verdict.
    • 606(b) does not forbid the "polling" of the jury, i.e., asking them if the verdict that has been read is in fact their unanimous verdict. But questions after the reading of the verdict generally fall within the language of the Rule, which precludes the official questioning of the jury or use of their written statements.
    • After the verdict is rendered, it is not unethical for counsel informally to interview the jury. You may even want to do so simply to learn what works and what does not. However, such questioning is increasingly being prohibited by statute or local court rules. 

Case: Tanner v. United States

    • Tanner was a 5-4 decision with Justice Marshall writing for the dissenters. His opinion has a much more detailed and nuanced description of the facts that that of the majority.
  • ... Petitioners argue that the District Court erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication during the trial....
  • [The truly scary part of this case is that the court rules that FRE 606(b) precludes juror testimony in spite of the serious allegations; the second terrifying part is that there is a lot of dicta that even if the testimony had been permissible, the parties had failed to make the showing required to prove jury incompetence.]
  • ... According to an affidavit accompanying the motion, Tanner's attorney had received an unsolicited telephone call from one of the trial jurors, Vera Asbul. Juror Asbul informed Tanner's attorney that several of the jurors consumed alcohol during the lunch breaks at various times throughout the trial, causing them to sleep through the afternoons. *** The District Court concluded that juror testimony on intoxication was inadmissible under FRE 606(b) to impeach the jury's verdict. The District Court invited petitioners to call any nonjuror witnesses, such as courtroom personnel, in support of the motion for new trial. Tanner's counsel took the stand and testified that he had observed one of the jurors "in a sort of giggly mood" at one point during the trial but did not bring this to anyone's attention at the time.... [Clearly, the non-juror evidence is weak here.]
  • [The second juror] ... In the interview Hardy stated that he "felt like . . . the jury was on one big party." Hardy indicated that seven of the jurors drank alcohol during the noon recess. [They drank a lot, but that was not all] Juror Hardy also stated that he and three other jurors smoked marijuana quite regularly during the trial. Moreover, Hardy stated that during the trial he observed one juror ingest cocaine five times and another juror ingest cocaine two or three times. One juror sold a quarter pound of marijuana to another juror during the trial, and took marijuana, cocaine and drug paraphernalia into the courthouse. Hardy noted that some of the jurors were falling asleep during the trial, and that one of the jurors described himself to Hardy as "flying." ***
  • General American Rule
    By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict.
  • Exceptions to the common-law rule were recognized only in situations in which an "extraneous influence" was alleged to have affected the jury.... The Court allowed juror testimony on influence by outsiders ...
  • [in the middle of the paragraph] *** Clearly a rigid distinction based only on whether the event took place inside or outside the jury room would have been quite unhelpful. *** [In other words, the court defines "during deliberations" broadly both physically and temporally.]
  • Most significant for the present case, however, is the fact that lower federal courts treated allegations of the physical or mental incompetence of a juror as "internal" rather than "external" matters....
  • There is little doubt that post-verdict 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 first time days, weeks, or months after the verdict, seriously disrupt the finality of the process. Moreover, 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.
  • [end of the paragraph] *** [P]etitioners argue that substance abuse constitutes an improper "outside influence" about which jurors may testify under FRE 606(b). In our view the language of the Rule cannot easily be stretched to cover this circumstance. However 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.
  • [T]he legislative history demonstrates with uncommon clarity that Congress specifically understood, considered, and rejected a version of Rule 606(b) that would have allowed jurors to testify on juror conduct during deliberations, including juror intoxication. ***
  • Finally, even if Rule 606(b) is interpreted to retain the common law exception allowing post verdict inquiry of juror incompetence in cases of "substantial if not wholly conclusive evidence of incompetency," the showing made by the petitioners falls far short of this standard. [CB-472] *** These allegations would not suffice to bring this case under the common-law exception allowing post verdict inquiry when an extremely strong showing of incompetency has been made.
  • [Sixth Amendment?] [x]
    This Court has recognized that a defendant has a right to "a tribunal both impartial and mentally competent to afford a hearing." Jordan v. Massachusetts, 225 U.S. 167, 176 (1912). *** At issue in this case is whether the Constitution compelled the District Court to hold an additional evidentiary hearing including one particular kind of evidence inadmissible under the Federal Rules.
  • In light of these other sources of protection of the petitioners' right to a competent jury, we conclude that the District Court did not err in deciding, based on the inadmissibility of juror testimony and the clear insufficiency of the nonjuror evidence offered by petitioners, that an additional post-verdict evidentiary hearing was unnecessary.
  • Malavet:
    • The lesson to be learned here is that you must catch these things as they occur. The trial court is much more likely to grant a mistrial under circumstances like this, than to grant a new trial when matters come out after the verdict. That is just the way things are.
  • Malavet: THE BIBLE?:
    • The Fourth Circuit has ruled that a juror consulting a Bible during the penalty phase in a capital case and reading the "eye for an eye" passage to his fellow jurors, did not constitute "extraneous prejudicial information" under 606(b). Robinson v. Polk, 438 F.2d 350 (4th Cir. 2006) cert. denied Oct. 30, 2006, Robinson v. Polk, 2006 US Lexis 8169.
    • Keen v. Tennessee, 2006 Tenn. Crim. App. LEXIS 442 (June 2006) (Jurors reading from the Bible and praying not extraneous prejudicial information; court suggests that penalty readings might be prejudicial).
    • A student in a prior class found a contrary result in a case in Colorado. People v. Harlan, 109 P.3d 616 (Sup. Ct. Co. 2005).  In vacating the defendant's death sentence, the Colorado Supreme Court ruled that 606(b) did not preclude the court from exploring the influence of Bible verses on the jurors. Multiple jurors used multiple bibles during their penalty deliberations. The verses were "directly related to the death penalty" and influenced jurors, which led to the invalidation of the death sentence.
    • It appears that Robinson represents a consistent federal view of the matter, and the Colorado case represents a minority view at the state level.

6.3 Jury Mistake/Misconduct Problems

Problem 6-B: Refusal to Take the Stand

Authors' Answers, my comments

  • Under both prior federal law and FRE 606(b), evidence is generally excluded that one or more jurors ignored or misunderstood the instructions of the court. See, e.g., United States v. Neary, 552 F.2d 1184 (7th Cir.), cert. denied, 434 U.S. 864 (1977); United States v. Stacey, 475 F.2d 1119 (9th Cir. 1973). Such matter pertains to "the effect of anything upon his or any other juror's mind or emotions as influencing him to assent or to dissent from the verdict or indictment or concerning his mental processes in connection therewith." Courts have also refused to receive evidence that one or more jurors held it against the accused that he failed to take the stand. United States v. Di Carlo, 575 F.2d 952 (1st Cir.), cert. denied, 439 U.S. 834 (1978); United States v. Friedland, 660 F.2d 919 (3d Cir. 1981), cert. denied, 456 U.S. 989 (1982). The letter also may not be received. The last sentence of FRE 606(b) excludes affidavits or other evidence of any statement by a juror about which he would be precluded from testifying.
  • [However, if other evidence shows that jurors ignored the instructions, then that may provide the basis for reversal.]

PROBLEM 6-C: The Jury View

  • Evidence about unauthorized jury views is generally allowed [i.e., it is not barred by FRE 606(b)]. See, e.g., United States v. Posner, 644 F. Supp. 885 (S.D. Fla. 1986). Unauthorized views fit the exception to the rule for "extraneous prejudicial information [that] was improperly brought to the jury's attention."
  • [Is this different than knowing beforehand what the intersection looked like (e.g., you are a juror here in Gainesville in an auto crash case that occurred on 34th and Archer)? YES, but why]

PROBLEM 6-D: The Bomber

  • [CB] If Jones moves for a new trial, may she offer such [juror] testimony in support of the motion? [YES.] If so, may the prosecutor call other jurors to testify that this information had no influence on their votes? [NO.]
  • Authors' answer, my comments:
  • Malavet:
    • Balance "extraneous prejudicial information" and "outside influence," which are bad, against "some sharing of personal knowledge and experience by jurors [which] is expected and proper".
  • The answer appears to depend on how directly the evidence bears on the immediate controversy and how prejudicial the information is in the context of the particular case. Courts are most inclined to admit evidence regarding extra-record information shared by jurors when it pertains to the immediate parties or controversy. See, e.g., United States v. Howard, 506 F.2d 865 (5th Cir. 1975) (proper to receive affidavit of one juror that another juror had stated that defendant had previously been in trouble). See also State v. Larue, 722 P.2d 1039 (Hawaii 1986) (defendant denied right to impartial jury where central issue in trial for child molestation was reliability of children's testimony and jury foreperson told other jurors "Well, I know for a fact that [children] do remember because when I was a little girl, about three years old, my uncle molested me.")
  • It is the opinion of the authors that the information about explosives provided by the juror in this problem is of a sufficiently specialized nature, and of sufficient prejudice, to justify receipt of juror testimony regarding what he said. However, a juror could not testify about the effect of the comments upon that juror or any other juror. See United States v. Duncan, 598 F.2d 839 (4th Cir.), cert. denied, 444 U.S. 871 (1979) (juror may testify that she had consulted a dictionary, but may not testify as to the effect this extraneous influence had on her own deliberations or those of the other jurors.)
  • [The authors also point out that "effect" testimony sought by the prosecution is barred by the first part of 606(b).]

Problem 6-E: The $800,000 Jury Error

  • Malavet:
    • The instruction as it should be understood: 
      Damages are the difference between fair market value of the farm and the redemption cost plus the mortgage balance on the property. [i.e., FMV - (RC + MB) = 500 - (10 + 400)= 500 - (410) = 90]
    • The instruction as the jury may have understood it:
      Damages are the difference between fair market value of the farm and the redemption cost[,] plus the mortgage balance on the property. [i.e., (FMV - RC) + MB = (500 - 10) + 400 = 490 + 400 = 890]
    • [In the actual case (Banks v. Hendershott, 79 Or. App. 243, 719 P.2d 484 (1986)) there was also another possibility: the owner had testified to a much higher FMV, which might have been the source for this finding. A solution to this dilemma is to give the jury a verdict form in which they write down the values they used and the formula. Or, better yet, you write down the formula and they fill in the blanks.]
    • It took me a while to understand the instruction properly, and I frankly think that the court misled the jurors, although the result the jury reached is stupid, but, the jury asked!
  • [CB] If the judge agrees that the jury erred, should she grant a new trial? [YES.] Does FRE 606(b) allow such affidavits? [NO!] Could Henderson have asked the trial judge, at the time the jury announced its verdict, to ask the jury how it understood the instruction?
  • Authors' Answers:
  • [No Juror Testimony and No Affidavits allowed]
    The affidavits of the jurors arguably describe "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," which is prohibited by the rule. Jury miscalculation of damages or misunderstanding of the court's instructions is generally considered to be the type of error that cannot be challenged under FRE 606(b).
  • For jury errors of this type, it is sometimes possible to sidestep the proscription of FRE 606(b) and have the judgment reversed on other grounds, such as insufficiency of the evidence to support the verdict.
  • Malavet
    • Note that while you cannot ask the jurors about misunderstanding the instructions, you can nonetheless order a new trial based on a finding that the jury clearly failed to follow its instructions, or order remittitur on the ground that the award is excessive.
    • However, there are certain grounds for reversal of the jury verdict that fall completely outside of FRE 606(b), as I think Problem 6-C illustrates. Note that this includes failure to follow instructions, although this cannot be proved by jury testimony or affidavits, but may be inferred by the court in granting a new trial motion.
    • What about bias (such as racism)? Some courts have ruled that bias cannot be explored through post-verdict juror testimony or affidavits, but others hold that bias can be considered an "outside influence" and thus properly inquired into under FRE 606(b).

Flipping a Coin? (A note by Prof. Malavet)

      • Philip J. Givens II was convicted or murder by a Kentucky jury that flipped a coin ("heads" meant guilty and "tails" meant not guilty; it was heads). The judge was told about it and immediately declared a mistrial. Mr. Givens recently pleaded guilty to second-degree manslaughter rather than face a second trial. (Louisville, Courier-Journal, June 13, 2001, Metro Section, page 1-B.)
      • The case that originates the juror non-impeachment rule in the common law, Vaise v. Delaval, involved allegations of jurors "tossing up" (flipping a coin) which the court refused to allow to be proved by juror affidavits. Vaise v. Delaval, 99 Eng. Rep. 944 (KB 1785)
      • In fact, allegations of jurors reaching the verdict by an act of chance were sadly common in the King’s Bench during this period. See, e.g., Vaise v. Delaval, 99 Eng. Rep. 944 (KB 1785) (allegation that jury “tossed up” (flipped a coin)); Hale v. Cove, 93 Eng. Rep. 753 (1795) (“The jury having sat up all night, agreed in the morning to put two papers into a hat, marked P. and D. and so draw lots; P. came out, and they found for the plaintiff”; verdict vacated, apparently not based on juror testimony given reference to Vaise); Foster v. Hawden, 83 Eng. Rep. 520 (KB) (“Trespass tried by Nisi Prius in Northumberland : the jury not agreeing cast lots for their verdict, and gave it according to lot; for which, upon the motion of Levinz, the verdict was set aside ; and ordered the jury to attend here next term to be fined.”; Foster notes that “in a case between The King and the Lord Fitzwater [83 Eng. Rep. 487 (KB)], a verdict was set aside for the same cause”; Parr v. Seames, 94 Eng. Rep. 993 (KB) (court would have accepted juror affidavits in support of contention that they reached their verdict “by hustling half-pence in a hat”); Philips v. Fowler, 92 Eng. Rep. 1190 (KB) (allegation that “the jury cast lots”).
      • The discussion of this point in Peña-Rodríquez seems to suggest that flipping a coin would be covered by the rule.

6.4 What about bias (such as racism)?

  • Race, Juries and Courts
    • Literature on Implicit Bias in Courts
      • Jerry Kang; Mark Bennett; Devon Carbado; Pam Casey, Implicit Bias in the Courtroom, 59 U.C.L.A. L. Rev. 1124 (2012);
      • [Judge] Mark W. Bennett, The Implicit Racial Bias in Sentencing: The Next Frontier, 126 Yale L.J.F. 391 (2016);
      • Justin D. Levinson; Mark W. Bennett; Koichi Hioki, Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes, 69 Fla. L. Rev. 63 (2017).
    • Literature on Actual Bias and its Significance
      • Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 331-36 (1987).
      • Charles Lawrence, Unconscious Racism Revisited: Reflections on the Impact and Origins of “The Id, The Ego, and Equal Protection,” 40 Conn. L. Rev. 931 (2008).
      • Jasmine B. Gonzalez Rose, Toward a Critical Race Theory of Evidence, 101 Minn. L. Rev. 2243 (2017).
    • Jury Instructions on Actual and Implicit Bias
      • Judge Mark W. Bennett's instructions are found in
        • Jerry Kang; Mark Bennett; Devon Carbado; Pam Casey, Implicit Bias in the Courtroom, 59 U.C.L.A. L. Rev. 1124 (2012).
      • Implicit Bias Instruction (pp. 1182-3)
        • Do not decide the case based on “implicit biases.” As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.
      • Explicit Bias Instruction (p. 1183).
        • In all criminal cases, Judge Bennett also instructs on explicit biases using an instruction that is borrowed from a statutory requirement in federal death penalty cases:
          • You must follow certain rules while conducting your deliberations and returning your verdict:
          • ***
          • Reach your verdict without discrimination. In reaching your verdict, you must not consider the defendant's race, color, religious beliefs, national origin, or sex. You are not to return a verdict for or against the defendant unless you would return the same verdict without regard to his race, color, religious beliefs, national origin, or sex. To emphasize the importance of this requirement, the verdict form contains a certification statement. Each of you should carefully read that statement, then sign your name in the appropriate place in the signature block, if the statement accurately reflects how you reached your verdict.
      • Verdict Form Certification
        • By signing below, each juror certifies that consideration of the race, color, religious beliefs, national origin, or sex of the defendant was not involved in reaching his or her individual decision, and that the individual juror would have returned the same verdict for or against the defendant on the charged offense regardless of the race, color, religious beliefs, national origin, or sex of the defendant.
  • Peña-Rodríguez v. Colorado, 580 U.S. ___(S.Ct. March 6, 2017)
    • Reading is the slip opinion that is linked above.
    • SCOTUS, 5-3 rules that the 606(b) jury inquiry privilege must give way to the 6th Amendment right to an impartial jury: "A constitutional rule that racial bias in the justice system must be addressed —including, in some instances, after the verdict has been entered— is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right."
  • Certiorari had been granted by SCOTUS in April 2016 in
    • Peña-Rodríguez v. Colorado to resolve the question whether racist anti-Mexican (really anti-Latinx) expressions by juror could be proved with fellow juror testimony to impeach the verdict.
      • SCOTUS No. 15-606
      • Opinion below: 350 P.3d 287 (Colorado Supreme Ct. 2015) (4-3 decision. Dissenting three judges cited Villar.)
      • Raises FRE 606(b), 6th Amendment, Due Process and possibly Equal Protection questions.
      • Oral argument was heard during the afternoon session of Monday, October 11, 2016, which was the first day of arguments of the second week of the term because Monday the 10th was a holiday.

Problem 6-F. "Women Drivers"

Should Peña-Rodríguez be expanded to cover gender discrimination?

    • History of Race and Gender Discrimination in Peremptory
      • And there is certainly evidence of historical discrimination against women in this country that may promote a particularly lively discussion in the #metoo era.  It may be helpful to note that the protections against racial discrimination in the context of peremptory strikes that originated with Batson v. Kentucky, 476 U.S. 79 (1986)were eventually expanded to discrimination based upon gender. See J.E.B. v. Alabama ex rel., 511 U.S. 127 (1994) (peremptory challenges may not be exercised on the basis of gender); SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) (peremptory challenges may not be exercised on the basis of sexual orientation).  
      • If a juror makes clear statements demonstrating that his anti-female bias and the criminal defendant’s gender were significant factors in his vote to convict, does Peña-Rodriguez entitle the defendant to present post-verdict juror testimony to prove these points?
    • Bias and intimidation?
      • In the Problem, the male juror not only reveals his bias against the defendant herself, but also accuses holdout jurors of refusing to convict because of pro-female bias linked to their own gender. Although the majority in Robinson rejected such statements in the context of race, the dissent thought biased statements against fellow jurors implicating a decision to convict were covered by Peña-Rodriguez.  
    • No-Contact Order Violated?
      • If a juror’s racist or sexist remarks demonstrate a clear bias that affected a vote to convict, is exclusion appropriate solely on the basis of a trial court’s no-contact order?