When we left the story of People v. McNeely or the Bad Blogging Juror, the California Court of Appeals had ordered the trial judge to interview Juror No. 8, author of the steamy deliberations diary, and his colleagues. The trial judge is assigned to find out two things in this investigation: whether the verdict was coerced or compromised, and whether it's possible to overcome the "presumption of prejudice" No. 8 created when he lied in voir dire about being a lawyer.
Inspired by Juror No. 8, I left you with a cliffhanger of my own: half of that order probably couldn't have been made under the federal rules. And the blog? Cases like this really aren't about the blog at all.
Bringing jurors back to ask about the verdict: California yes, federal rules no
Under the Federal Rules of Evidence, and the many state rules modeled after them, there would likely be no juror reunion to figure out whether Juror No. 8 coerced McNeely's verdict, or whether the jurors improperly compromised. As we've seen, Rule 606(b) limits these inquiries to "extraneous prejudicial information" and "outside influence":
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
The California rules are different, though, and their Evidence Code section 1150(a) seems to let judges question jurors about anything that might have influenced the verdict, internal or external:
1150. (a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined. (b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict.
(I don't know what that subdivision (b) means; there doesn't seem to be a 606(b) equivalent somewhere else in the rules that it might refer to, and I didn't look at case law. If you're from California, feel free to write in on this.)
It's not about the blog
As for the blog part, juror blog cases have come up before. This March the National Law Journal ran an article about this New Hampshire case where a juror blogged, and that in turn was the talk of the blogs for many days. "Should jurors be allowed to blog?" is the way the question is phrased sometimes, and I hope we keep answering that they should.
It's not about the blog. A blog is just a way of talking, and jurors have been talking for a really long time. They sometimes talk about the case, although they've been instructed not to. They talk about the deliberations, sometimes after the verdict and sometimes before they're done. And they sometimes talk about their biases in ways they never mentioned in jury selection.
Whether we learn about it from jurors' co-workers (as in New Jersey's recent State v. Loftin, discussed here), or from post-trial juror interviews (as in the recent Procter & Gamble/Amway verdict), or from articles the jurors wrote (like New Jersey state senator Robert Martin), the point is what the juror said, not where he chose to say it. Good instructions and a good Ask from the court, and good voir dire questions from the lawyers -- do you blog, do you Twitter, do you comment, do you Facebook, do you YouTube, do you Flickr, do you dream of writing a legal potboiler -- will get us through most trials without a Juror No. 8. Where he does slip through, a prohibition on blogging wouldn't have stopped him.
I say this in enormous self-interest; I love a good juror blog. When this series continues, I'll offer two recent ones, each with a little humor and a nice lawyer lesson.
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Note:
I've left out the more interesting legal issue here: the juror's lie in voir dire, and the "presumption of prejudice" that flows from it in California. Different jurisdictions handle this differently, and I have to leave the whole topic for another post. If you're in a hurry and you happen to live in Florida, Robert Kelley has your juror concealment cases collected here.
