5.11 Impeaching the Jury’s Verdict

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

5.11 IMPEACHING THE JURY'S VERDICT

In a bifurcated trial, a jury loses power over its guilty verdict only when it is "discharged from service at the close of trial. . . . Prior to discharge, . . . the jury retains the power to revisit its guilty verdict." ²⁶³ Although the

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Virginia Court of Appeals cautioned against a defendant attempting to inject "residual doubt" about guilt into the sentencing phase, the trial judge should have set aside the verdict when, during the sentencing stage, the jury sent the judge four notes indicating that they made a mistake in their guilty verdict.

After the jury has been discharged, the traditional rule is that jurors may not impeach their verdict by testifying as to statements made during deliberations. But the Sixth Amendment requires that this no-impeachment rule give way to permit the trial court to consider whether a juror made clear statements indicating that he relied on racial stereotypes or animus to convict a criminal defendant. The party challenging the no-impeachment bar must make a threshold showing that the racial animus was a significant factor in the juror's vote to convict. ²⁶⁴

Mir Aimal Kasi v. Commonwealth ²⁶⁵ rejected the defendant's request to subpoena jurors for interrogation based on newspaper accounts that the jury imposed the death penalty because the defendant "had attacked the American way of life" and that he was a "terrorist." The Virginia Supreme Court stated:

Virginia has been more careful than most states to protect the inviolability and secrecy of jury deliberations. . . . Generally, we have limited findings of prejudicial juror misconduct to activities of jurors that occur outside the jury room. ²⁶⁶

Outside influences that have warranted investigation into juror misconduct or reversal of a jury verdict include: (i) photographs not admitted into evidence that were taken into the jury room; (ii) an almanac consulted by a juror who reported his findings to the jury during deliberations; and (iii) an unauthorized view of the crime scene by the jury. ²⁶⁷ "[A]ny private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is . . . deemed presumptively prejudicial." ²⁶⁸ The presumption of prejudice arises upon a showing of two

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elements: that an extraneous contact with or by a member of the jury took place and that such contact was about the matter pending before the jury. ²⁶⁹

In situations...