Problems in the “jury” room

In United States v. Schloff, we had an issue with extraneous influences in the “jury” room. The two senior members essentially argued that the Army reputation for dealing with sexual assaults was relevant to their findings–and a guilty result ensued.

At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].

Through luck, we discovered this post-trial, and the ACCA set aside the findings and allowed a new trial. In a footnote, the court observed the standard rule about jury deliberations.

See Mil. R. Evid. 606(b)(1). “[T]he purpose of [Mil. R. Evid. 606(b)] is to protect ‘freedom of deliberation,’ protect ‘the stability and finality of verdicts,’ and protect court members ‘from annoyance and embarrassment.’” United States v. Loving, 14 M.J. 213, 236 (C.A.A.F. 1994) (quoting United States v. Bishop, 11 M.J. 7, 9 (C.M.A. 1981) (citing McDonald v. Pless, 238 U.S. 264, 267-68 (1915)).

At that new trial, the one specification was prosecuted, and one of the two complaining witnesses (of the two specifications on which the client was acquitted initially) testified under MRE 413. The case resulted in an acquittal.

A new case from Ohio reminds us of both the limits and the exceptions to questioning the “jury” about their deliberations.

Ohio has a rule of evidence similar to MRE 608 (and, of course, the FRE). That rule, or rather evidence of problems in the “jury” room, became an issue in Nian v. Warden, ___ F.3d ___, 2021 U.S. App. LEXIS 11242, 2021 WL 152 6509 (6th Cir. 2021).

Following his guilty verdict, Nian filed a motion for a new trial on May 13, 2015. Nian alleged that a juror had improperly introduced extraneous information—including his criminal record and national origin—into deliberations, and he requested an evidentiary hearing. Attached to his motion was an affidavit from Jacquelyn Cox, a juror on his case, who stated that another juror had introduced into deliberations facts about Nian being from Sierra Leone and having a prior criminal record, which she felt influenced the verdict.

Nian v. Warden, N. Cent. Corr. Inst., No. 18-3938,at *3-4.

After reviewing the law and facts, the court found the error was not harmless so they reversed the lower court and remanded the case back to the state court to consider the jury issue further.

There are a number of CCA opinions discussing the operation of Mil. R. Evid. 606. For an early case,

Our review of the case law interpreting Fed.R.Evid. 606(b) and Mil.R.Evid. 606(b) leads us to two conclusions: First, evidence of information acquired by a court member during deliberations from a third party or from outside reference materials may be extraneous prejudicial information which is admissible under Mil.R.Evid. 606(b) to impeach the findings or sentence. Second, the general and common knowledge a court member brings to deliberations is an intrinsic part of the deliberative process, and evidence about that knowledge is not competent evidence to impeach the members’ findings or sentence. See United States v. Caro-Quintero, 769 F. Supp. 1564, 1577 n. 7 (C.D.Cal. 1991), aff’d sub nom. United States v. Bernabe-Ramirez, 42 F.3d 1403 (9th Cir. 1994). A contrary result would undercut the policy behind Mil.R.Evid. 606(b) “of promoting finality in litigation and of protecting the members from harassment and second-guessing.”

United States v. Straight, 42 M.J. 244, 250 (C.A.A.F. 1995).