Jury secrecy during deliberations.

• Author: Markovitz, Alison
• Position: Case Note

Jurors are expected to follow the law and participate in deliberations, yet under current law there is no way for a judge to ensure that this occurs. United States v. Brown(1) illustrates this problem. After thirteen weeks of trial and five weeks of deliberations, one of the jurors in the case sent a note to the judge stating, "I Bernard Spriggs am not able to discharge my duties as a member of the jury."(2) The judge called juror Spriggs into the courtroom to question him about why he was unable to continue deliberating. After an abbreviated and inconclusive exchange, the judge cut off his questioning, deciding that any additional inquiry would intrude on the secrecy of the jury's deliberations.(3) Although the judge's interrogation did not establish decisively why the juror wished to be discharged, the judge ruled that the juror should be dismissed for "just cause"(4) on the ground that the juror would not follow the law and therefore could not fulfill his duties.(5) Three weeks after the dismissal of juror Spriggs, eight weeks after the start of deliberations, and twenty-one weeks after the beginning of the trial, the remaining eleven jurors returned with a guilty verdict. This verdict did not stand; on appeal, the D.C. Circuit overturned the jury's conviction, finding that juror Spriggs was improperly dismissed.

The Federal Rules of Criminal Procedure allow a judge to dismiss a juror "for just cause,"(6) but do not elaborate on what might constitute just cause for dismissal. Three federal circuits--the D.C. Circuit in United States v. Brown,(7) the Second Circuit in United States v. Thomas,(8) and, most recently, the Ninth Circuit in United States v. Symington(9)--have limited a judge's discretion to dismiss a nondeliberating juror for cause. These courts found that if there is "any possibility"(10) or "any reasonable possibility"(11) that the juror's refusal to deliberate stems from her views about the sufficiency of the evidence in the case, the judge can neither investigate further nor dismiss the juror. The usual result is a hung jury.

Because inquiries to establish just cause are restricted, the trial judge is unable to dismiss a nondeliberating juror if there is any ambiguity about why the juror will not participate in deliberations.(12) This outcome did not go unnoticed by these three appellate courts. As the court in Brown recognized, "unless the initial request for dismissal [of a nondeliberating juror] is transparent, the court will likely prove unable to establish conclusively the reasons underlying it."(13) The three courts, however, preferred to restrict a judge's investigatory power over the alternative: intruding on the secrecy of the jury's deliberations.

The courts in Brown, Thomas, and Symington explained that "the need to safeguard the secrecy of jury deliberations requires the use of a high evidentiary standard for the dismissal of a deliberating juror."(14) They found preserving the secrecy of jury deliberations to be more important than investigating whether just cause exists for dismissal. As the Thomas court explained,

[W]e are compelled to err in favor of the lesser of two evils--protecting the secrecy of jury deliberations at the expense of possibly allowing irresponsible juror activity. Achieving a more perfect system for monitoring the conduct of jurors in the intense environment of a jury deliberation room entails an unacceptable breach of the secrecy that is essential to the work of juries in the American system of justice. To open the door to the deliberation room any more widely and provide opportunities for broad-ranging judicial inquisitions into the thought processes of jurors would, in our view, destroy the jury system itself.(15) For these courts, the question of which value should prevail was a simple one: They would tolerate jurors who disregarded the law, jurors who refused to deliberate, and hung juries, rather than intrude, even slightly, on the sanctity of the jury's deliberations.

This Note argues that the courts in Brown, Thomas, and Symington struck the wrong balance between jury secrecy and judicial inquiry. These courts placed too much emphasis on the secrecy of a jury's deliberations and too little trust in a judge's ability to question deliberating jurors impartially. They failed to appreciate the difference between postverdict juror secrecy, which is protected by Federal Rule of Evidence 606(b), and preverdict juror secrecy, which is neither as well-defined nor as absolute. In relying on a generalized conception of jury secrecy, these courts did not recognize that the values and policy rationales supporting postverdict secrecy are not parallel to the concerns that apply while a jury is still deliberating. This Note asserts that, to strike a more appropriate balance between secrecy and preverdict judicial inquiry, the restrictions on judicial investigation adopted in Brown, Thomas, and Symington should be relaxed. When a problem arises in the jury room, judges should be given more latitude to question deliberating jurors in order to determine whether a juror should be dismissed for just cause.

Part I examines the use of the jury secrecy rationale in Brown, Thomas, and Symington to limit a judge's ability to investigate whether a juror can be dismissed for just cause. Part II discusses the historical development and limits of postverdict juror secrecy, focusing on the impeachment doctrine. Part III explains the policies underlying postverdict secrecy and the inapplicability of these policies to the preverdict context. Part IV explores uniquely preverdict values that compete with jury secrecy during deliberations. This Part first examines what is expected of the jury during deliberations, namely that it be a fully participatory and actively deliberating body, and then looks at the protection of holdout jurors during deliberations. Part V describes the role of preverdict judicial inquiry in mediating between a protection of jury secrecy and other preverdict concerns. Part VI concludes that viewing preverdict secrecy based solely on an analogy between preverdict and postverdict secrecy fails to appreciate the different values that come into play before and after a verdict is reached. When a deliberating jury is experiencing problems with one or more of its members, narrowly tailored judicial inquiry can strike an appropriate balance between protecting secrecy and promoting the preverdict values of full participation and active deliberation.

1. JUROR DISMISSAL AND JURY SECRECY IN BROWN, THOMAS, AND SYMINGTON

   Until 1983, when a judge in a criminal trial was presented with an incapacitated or disqualified juror, she would have to discharge the juror and declare a mistrial unless the parties had agreed before trial to accept a jury of less than twelve in the event of juror dismissal. This situation resulted from the combination of Federal Rule of Criminal Procedure 23(b), which required a unanimous verdict of twelve jurors unless the parties had stipulated otherwise,(16) and Rule 24(c), which required the court to dismiss alternate jurors at the start of deliberations.(17) If a juror had to be excused after the beginning of deliberations, the effect of strict compliance with these two rules was a mistrial.

   In order to remedy this problem, Congress amended Rule 23(b) in 1983. This amendment allowed a judge, upon a finding of just cause, to dismiss a juror even absent agreement among the parties, and then permitted the remaining eleven members of the jury to render a verdict. Rule 23(b) now reads:

   Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.(18) As the Advisory Committee's note to this rule states, the rationale behind this change was that "when a juror is lost during deliberations ... it is essential that there be available a course of action other than mistrial."(19) Consequently, when a trial judge finds "just cause" to dismiss a juror, a verdict can be reached by the remaining eleven members.

   1. Limiting Just Cause for Dismissal

      The D.C. Circuit in Brown was the first court to overturn a trial judge's finding of just cause under Rule 23(b).(20) The decision in Brown rested on the premise that "a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the evidence."(21) This restriction on dismissal under Rule 23(b) was based on the defendant's right to a unanimous verdict.(22) The Brown court found that the judge' s questioning of the juror in this case left an "ambiguous" record.(23) Since it was possible that the juror was a holdout, the court held that the trial judge erred in dismissing the juror.(24)

      The Thomas court agreed with Brown's limitation on juror dismissal. The Second Circuit in Thomas overturned a conviction, stating that the judge should not have dismissed a deliberating juror based on his intent to nullify the law.(25) While the Second Circuit held that intent to nullify could constitute just cause for dismissal,(26) the court found that it was unclear in this case whether the juror's position resulted from a desire to nullify or, instead, from reservations about the sufficiency of the evidence.(27)

      The Ninth Circuit in Symington was the third and most recent appellate court to limit a trial judge's ability to dismiss a juror under Rule 23(b). The court held that "if the record evidence...