Tenth Circuit Holds Testimony Showing Juror Dishonesty Inadmissible

By Megan Marlatt

In United States v. Benally, the Tenth Circuit held that juror testimony from deliberations showing that other jurors had lied during voir dire was inadmissible under F.R.E. 606(b).  Fed. R. Evid. 606(b).  546 F.3d 1230, 1241-42 (10th Cir. 2008).  The Tenth Circuit added its voice to the Circuit Split about what can be done under F.R.E. 606(b) when juror testimony from deliberations revealed that jurors have been dishonest during voir dire.  Under F.R.E. 606(b), all juror testimony concerning things that were said during deliberations is inadmissible in appellate hearings.  Among other things, discussions during deliberations involving outside influences, such as newspapers, are exempted from the rule, and thus admissible.

In Benally, after a guilty verdict had been entered, a juror came forward claiming that during deliberations, certain jurors had discussed their racial biases toward the Native American defendant and that those racial biases became a critical factor in their entering the guilty verdict.  This alarmed the defendant because during voir dire, the Judge asked: “Would the fact that the defendant is Native American affect your evaluation of the case?” and “Have you ever had a negative experience with any individuals of Native American descent?”  Each of the jurors selected for trial answered both of those questions negatively.  Upon hearing this information, counsel for Benally had the juror who came forward, along with another juror who gave a corroborating statement sign affidavits.  The district court admitted testimony from these two jurors, claiming F.R.E. 606(b) did not apply and granted a new trial.  The Tenth Circuit held that such testimony was inadmissible under F.R.E. 606(b).

The Ninth Circuit and the Third Circuit have also ruled on the admissibility of juror testimony showing that jurors lied during voir dire, both coming to different conclusions.  The Ninth Circuit has held, as did the district court in Benally that such testimony is admissible and warrants a new trial.  In Hard v. Burlington Northern R.R., jurors were asked during voir dire if they had ever been employed by the railroad and if yes, about the nature of that employment.  812 F.2d 482, 484 (9th Cir. 1987).  After the trial, it was discovered that one juror, who had stated his employment was “retired” had worked for the railroad for many years.  The Court ruled that post-trial juror affidavits were admissible because, “[w]here, however, those [past personal] experiences [of jury members’] are related to the litigation, as they are here, they constitute extraneous evidence which may be used to impeach the jury’s verdict.”

The Third Circuit, like the Tenth Circuit in Benally, ruled that under 606(b) such testimony would be inadmissible because it does not fall under one of the three 606(b) exceptions to the admissibility of juror testimony.  Williams v. Price, 343 F.3d 223, 236 (3rd Cir. 2003).

While the Hard case involved a juror lying about his employment by the defendant, the Benally and Williams cases involved jurors lying about their racial prejudices during voir dire.  Perhaps there is really no circuit split and the nature of juror Frasier’s knowledge of the defendant Burlington Northern Railroad in Hard is distinguishable as an outside influence for the purposes of F.R.E. 606(b) whereas a juror’s racial bias is not an outside influence.