§606 Competency of Juror as Witness

• Library: Evidence Restated Deskbook (2021 Ed.)

§606 Competency of Juror as Witness

A. At the trial. A jury member is not competent to testify as a witness in the trial of a case in which that person is sitting as a juror.

B. Inquiry into validity of verdict

1. To support verdict. A juror may testify in person or by affidavit in support of a verdict.

2. To impeach verdict.

a. General rule. The testimony or affidavit of a juror is inadmissible for the purpose of impeaching the jury's verdict based on matters inherent in the verdict.

b. Exceptions. But jurors may testify about juror misconduct occurring (i) outside the courtroom, such as the gathering of extrinsic evidence through independent investigation by jurors or juror communications with or coming from third persons; and (ii) inside the jury room evincing ethnic or religious bias or prejudice.

C. To show nondisclosure during voir dire. A juror may testify to the intentional or unintentional nondisclosure of material information requested during voir dire.

Notes

A. At the trial

A jury member in Missouri is not competent to testify in a case in which that person is sitting as a juror. "Whether such person should be a witness or juror must obviously be settled in advance. A trial court should always be very careful not to leave any one on the jury who is incompetent, and certainly not one who knows facts which would make him a material witness." State v. Marshall, 198 S.W. 451, 452 (Mo. App. S.D. 1917). See § 494.470, RSMo 2016, which prohibits a witness or person summoned as a witness in any cause to be sworn as a petit juror in the same cause.

The rule of incompetency does not apply to an excused panel member. See Gilliam v. City of St. Louis, 766 S.W.2d 172, 173–74 (Mo. App. E.D. 1989); E.C. Robinson Lumber Co. v. Cottonseed Delinting Corp., 207 S.W.2d 63, 66 (Mo. App. S.D. 1947).

B. Inquiry into validity of verdict

Juror testimony in support of a verdict

Missouri cases have expressly approved testimony of jurors in support of the jury verdict. See:

· State v. Babb, 680 S.W.2d 150, 152 (Mo. banc 1984) (jurors may testify in person or by affidavit "that no disturbing influence was brought to bear upon them, and that they were not interfered or tampered with")

· State v. Underwood, 57 Mo. 40, 52 (1874)

· State v. Hayes, 637 S.W.2d 33, 38–39 (Mo. App. E.D. 1982)

Matters inherent in the verdict: mental processes and innermost thoughts

The general rule in Missouri is that the testimony or affidavit of a juror is inadmissible for the purpose of impeaching the jury's verdict based upon matters inherent in the verdict. Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623, 642 (Mo. banc 2013); see also State v. West, 425 S.W.3d 151, 154–55 (Mo. App. W.D. 2014). This is so regardless of where the conduct testified about occurs—inside or outside of the juror room. Smith, 410 S.W.3d at 642–43. Accordingly:

A juror who has reached his conclusions on the basis of evidence for his consideration may not have his mental processes and innermost thoughts put on a slide for examination under the judicial microscope. A juror may not testify concerning matters inherent in the verdict, such as that the juror did not understand the law as contained in the court's instructions, or that he did not join in the verdict, or that he voted a certain way due to a misconception of the evidence, or misunderstood the statements of a witness, or was mistaken in his calculations, or other matters resting alone in the juror's breast. Two policy considerations require the exclusion of this type of testimony. First, there would be no end to litigation if verdicts could be set aside because one juror reportedly did not correctly understand the law or accurately weigh the evidence. Second, there is no legitimate way to corroborate or refute the mental process of a particular juror.

Smith, 410 S.W.3d at 642 (internal quotations and citations omitted); see also State v. Bolden, No. ED 94705, 2011 WL 4366416 (Mo. App. E.D. Nov. 22, 2011).

A juror will not be heard to impeach his own verdict or the verdict of a jury of which he was a member. State v. Harding, 734 S.W.2d 871, 875 (Mo. App. E.D. 1987). "The rule is perfectly settled, that jurors speak through their verdict, and they cannot be allowed to violate the secrets of the jury room, and tell of any partiality or misconduct that transpired there, nor speak of the motives which induced or operated to produce the verdict." Strong v. State, 263 S.W.3d 636, 643 (Mo. banc 2008) (quotation omitted). Juror testimony is improper if it merely alleges matters inherent in the verdict, which include a juror not joining in the verdict. Fleshner, 304 S.W.3d at 87. This prohibition against impeaching the verdict promotes finality of verdicts and protects jurors from harassment by unsuccessful litigants.

Bolden at *5; Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 87 (Mo. banc 2011).

Matters inherent in the verdict include a juror:

· not understanding the law as stated in the instructions;

· not joining in the verdict;

· voting a certain way due to misconception of the evidence;

· misunderstanding the statements of a witness; and

· being mistaken in regard to calculations.

Fleshner, 304 S.W.3d at 87; State v. Bolden, 371 S.W.3d 802, 805 n.2 (Mo. banc 2012); see also State v. West, 425 S.W.3d 151, 154–155 (Mo. App. W.D. 2014) (there was no error in the trial court denying the proffer of testimony submitted by juror...