Tanner v. United States
483 U.S. 107 (1987)

Justice O'Connor delivered the opinion of the Court.

[Tanner and Conover were convicted on various counts of mail fraud.] The day before petitioners were scheduled to be sentenced, Tanner filed a motion, in which Conover subsequently joined, seeking continuance of the sentencing date, permission to interview jurors, an evidentiary hearing, and a new trial. According to an affidavit accompanying the motion, Tanner's attorney had received an unsolicited telephone call from one of the trial jurors, Vera Asbul. Juror Asbul informed Tanner's attorney that several of the jurors consumed alcohol during the lunch breaks at various times throughout the trial, causing them to sleep through the afternoons. The District Court continued the sentencing date, ordered the parties to file memoranda, and heard argument on the motion to interview jurors. The District Court concluded that juror testimony on intoxication was inadmissible under Federal Rule of Evidence 606(b) to impeach the jury's verdict. The District Court invited petitioners to call any nonjuror witnesses, such as courtroom personnel, in support of the motion for new trial. Tanner's counsel took the stand and testified that he had observed one of the jurors "in a sort of giggly mood'' at one point during the trial but did not bring this to anyone's attention at the time....

While the appeal of this case was pending before the Eleventh Circuit, petitioners filed another new trial motion based on additional evidence of jury misconduct. In another affidavit, Tanner's attorney stated that he received an unsolicited visit at his residence from a second juror, Daniel Hardy. Despite the fact that the District Court had denied petitioners' motion for leave to interview jurors, two days after Hardy's visit Tanner's attorney arranged for Hardy to be interviewed by two private investigators. The interview was transcribed, sworn to by the juror, and attached to the new trial motion. In the interview Hardy stated that he "felt like ... the jury was on one big party.'' Hardy indicated that seven of the jurors drank alcohol during the noon recess. Four jurors, including Hardy, consumed between them "a pitcher to three pitchers'' of beer during various recesses. Of the three other jurors who were alleged to have consumed alcohol, Hardy stated that on several occasions he observed two jurors having one or two mixed drinks during the lunch recess, and one other juror, who was also the foreperson, having a liter of wine on each of three occasions. Juror Hardy also stated that he and three other jurors smoked marijuana quite regularly during the trial. Moreover, Hardy stated that during the trial he observed one juror ingest cocaine five times and another juror ingest cocaine two or three times. One juror sold a quarter pound of marijuana to another juror during the trial, and took marijuana, cocaine and drug paraphernalia into the courthouse. Hardy noted that some of the jurors were falling asleep during the trial, and that one of the jurors described himself to Hardy as "flying.'' Hardy stated that before he visited Tanner's attorney at his residence, no one had contacted him concerning the jury's conduct, and Hardy had not been offered anything in return for his statement. Hardy said that he came forward "to clear my conscience'' and "[b]ecause I felt ... that the people on the jury didn't have no bsiness being on the jury. I felt ... that Mr. Tanner should have a better opportunity to get somebody that would review the facts right.''

The District Court, stating that the motions "contain supplemental allegations which differ quantitatively but not qualitatively from those in the April motions,'' denied petitioners' motion for a new trial. The Court of Appeals for the Eleventh Circuit affirmed. 772 F.2d 765 (1985). We granted certiorari, 479 U.S. --, 107 S. Ct. 397, 93 L. Ed. 2d 351 (1986), to consider whether the District Court was required to hold an evidentiary hearing, including juror testimony, on juror alcohol and drug use during the trial.... Petitioners argue that the District Court erred in not ordering an additional evidentiary hearing at which jurors would testify concerning drug and alcohol use during the trial. Petitioners assert that, contrary to the holdings of the District Court and the Court of Appeals, juror testimony on ingestion of drugs or alcohol during the trial is not barred by Federal Rule of Evidence 606(b). Moreover, petitioners argue that whether or not authorized by Rule 606(b), an evidentiary hearing including juror testimony on drug and alcohol use is compelled by their Sixth Amendment right to trial by a competent jury.

By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict. See 8 J. Wigmore, Evidence 2352, pp.696-697 (McNaughton rev. ed. 1961) (common-law rule, originating from 1785 opinion of Lord Mansfield, "came to receive in the United States an adherence almost unquestioned''). Exceptions to the common-law rule were recognized only in situations in which an "extraneous influence,'' Mattox v. United States, 146 U.S. 140, 149, 13 S. Ct. 50, 53, 36 L. Ed. 917 (1892), was alleged to have affected the jury. In Mattox, this Court held admissible the testimony of jurors describing how they heard and read prejudicial information not admitted into evidence. The Court allowed juror testimony on influence by outsiders in Parker v. Gladden, 385 U.S. 363, 365, 87 S. Ct. 468, 470, 17 L. Ed. 2d 420 (1966) (bailiff's comments on defendant), and Remmer v. United States, 347 U.S. 227, 228-230, 74 S. Ct. 450, 450-452, 98 L. Ed. 654 (1954) (bribe offered to juror). See also Smith v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982) (juror in criminal trial had submitted an application for employment at the District Attorney's office). In situations that did not fall into this exception for external in

Lower courts used this external/internal distinction to identify those instances in which juror testimony impeaching a verdict would be admissible. The distinction was not based on whether the juror was literally inside or outside the jury room when the alleged irregularity took place; rather, the distinction was based on the nature of the allegation. Clearly a rigid distinction based only on whether the event took place inside or outside the jury room would have been quite unhelpful. For example, under a distinction based on location a juror could not testify concerning a newspaper read inside the jury room. Instead, of course, this has been considered an external influence about which juror testimony is admissible. See United States v. Thomas, 463 F.2d 1061 (C.A.7 1972). Similarly, under a rigid locational distinction jurors could be regularly required to testify after the verdict as to whether they heard and comprehended the judge's instructions, since the charge to the jury takes place outside the jury room. Courts wisely have treated allegations of a juror's inability to hear or comprehend at trial as an internal matter. See Government of the Virgin Islands v. Nicholas, 759 F.2d 1073 (C.A.3 1985); Davis v. United States, 47 F.2d 1071 (C.A.5 1931) (rejecting juror testimony impeaching verdict, including testimony that jurors had not heard a particular instruction of the court).

Most significant for the present case, however, is the fact that lower federal courts treated allegations of the physical or mental incompetence of a juror as "internal'' rather than "external'' matters. In United States v. Dioguardi, 492 F.2d 70 (C.A.2 1974), the defendant Dioguardi received a letter from one of the jurors soon after the trial in which the juror explained that she had "eyes and ears that ... see things before [they] happen,'' but that her eyes "are only partly open'' because "a curse was put upon them some years ago.'' Id., at 75. Armed with this letter and the opinions of seven psychiatrists that the letter suggested that the juror was suffering from a psychological disorder, Dioguardi sought a new trial or in the alternative an evidentiary hearing on the juror's competence. The District Court denied the motion and the Court of Appeals affirmed. The Court of Appeals noted "[t]he strong policy against any post-verdict inquiry into a juror's state of mind,'' id., at 79, and observed: "The quickness with which jury findings will be set aside when there is proof of tampering or external influence ... parallel the reluctance of courts to inquire into jury deliberations when a verdict is valid on its face.... Such exceptions support rather than undermine the rationale of the rule that possible internal abnormalities in a jury will not be inquired into except 'in the gravest and most important cases.' '' Id., at 79, n.12, citing McDonald v. Pless, supra, 238 U.S., at 269, 35 S. Ct., at 785. The court of appeals concluded that when faced with allegations that a juror was mentally incompetent, "courts have refused to set aside a verdict, or even to make further inquiry, unless there be proof of an adjudication of insanity or mental incompetence closely in advance ... of jury service,'' or proof of "a closely contemporaneous and independent post-trial adjudication of incompetency.'' 492 F.2d, at 80....

The Court's holdings requiring an evidentiary hearing where extrinsic influence or relationships have tainted the deliberations do not detract from, but rather harmonize with, the weighty government interest in insulating the jury's deliberative process. See Smith v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982) (juror in criminal trial had submitted an application for employment at the District Attorney's office); Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954) (juror reported attempted bribe during trial and was subjected to investigation). The Court's statement in Remmer that "[t]he integrity of jury proceeding must not be jeopardized by unauthorized invasions," id., at 229, 74 S. Ct., at 451, could also be applied to the inquiry petitioners seek to make into the internal processess of the jury.

There is little doubt that post-verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict seriously disrupt the finality of the process.... Moreover, full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of post verdict scrutiny of juror conduct. See Note, Public Disclosures of Jury Deliberations, 96 Harv. L. Rev. 886, 888-892 (1983).... [P]etitioners argue that substance abuse constitutes an improper "outside influence'' about which jurors may testify under Federal Rule of Evidence 606(b). In our view the language of the Rule cannot easily be stretched to cover this circumstance. However severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an "outside influence'' than a virus, poorly prepared food, or a lack of sleep....

Justice MARSHALL, with whom Justice BRENNAN, Justice BLACKMUN, and Justice STEVENS join, dissenting in part.

Every criminal defendant has a constitutional right to be tried by competent jurors. This Court has long recognized that "[d]ue process implies a tribunal both impartial and mentally competent to afford a hearing,'' Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S. Ct. 651, 652, 56 L. Ed. 1038 (1912), "a jury capable and willing to decide the case solely on the evidence before it.'' Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78 (1982). If, as is charged, members of petitioners' jury were intoxicated as a result of their use of drugs and alcohol to the point of sleeping through material portions of the trial, the verdict in this case must be set aside. In directing district courts to ignore sworn allegations that jurors engaged in gross and debilitating misconduct, this Court denigrates the precious right to a competent jury. Accordingly, I dissent from that part of the Court's opinion....

Despite the seriousness of the charges, the Court refuses to allow petitioners an opportunity to vindicate their fundamental right to a competent jury. The Court holds that petitioners are absolutely barred from exploring allegations of juror misconduct and incompetency through the only means available to themexamination of the jurors who have already voluntarily come forward. The basis for the Court's ruling is the mistaken belief that juror testimony concerning drug and alcohol abuse at trial is inadmissible under Federal Rule of Evidence 606(b) and is contrary to the policies the Rule was intended to advance.

I readily acknowledge the important policy considerations supporting the common-law rule against admission of jury testimony to impeach a verdict, now embodied in Federal Rule of Evidence 606(b): freedom of deliberation, finality of verdicts, and protection of jurors against harassment by dissatisfied litigants. See, e.g., McDonald v. Pless, 238 U.S. 264, 267-268, 35 S. Ct. 783, 784-785, 59 L. Ed. 1300 (1915); Advisory Committee's Notes on Fed. Rule Evid. 606(b), 28 U.S.C. App., p.700. It has been simultaneously recognized, however, that "simply putting verdicts beyond effective reach can only promote irregularity and injustice.'' Ibid. If the above-referenced policy considerations seriously threaten the constitutional right to trial by a fair and impartial jury, they must give way. See Parker v. Gladden, 385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966); Mattox v. United States, 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892).

In this case, however, we are not faced with a conflict between the policy considerations underlying Rule 606(b) and petitioners' Sixth Amendment rights. Rule 606(b) is not applicable to juror testimony on matters unrelated to the jury's deliberations. By its terms, Rule 606(b) renders jurors incompetent to testify only as to three subjects: (i) any "matter or statement'' occurring during deliberations; (ii) the "effect'' of anything upon the "mind or emotions'' of any juror as it relates to his or her "assent to or dissent from the verdict''; and (iii) the "mental processes'' of the juror in connection with his "assent to or dissent from the verdict.'' Even as to matters involving deliberations, the bar is not absolute.

It is undisputed that Rule 606(b) does not exclude juror testimony as to matters occurring before or after deliberations. See 3 D. Louisell & C. Mueller, Federal Evidence 290, p.151 (1979); cf. Note, Impeachment of Verdicts by JurorsRule of Evidence 606(b), 4 Wm. Mitchell L. Rev. 417, 431, n.88 (1978). But, more particularly, the Rule only "operates to prohibit testimony as to certain conduct by the jurors which has no verifiable manifestations,'' 3 J. Weinstein & M. Berger, Weinstein's Evidence ;pg606[04], pp.606-28 (1985); as to other matters, jurors remain competent to testify. See Fed. Rule Evid. 601. Because petitioners' claim of juror misconduct and incompetency involves objectively verifiable conduct occurring prior to deliberations, juror testimony in support of the claims is admissible under Rule 606(b)....

Even if I agreed with the Court's expansive construction of Rule 606(b), I would nonetheless find the testimony of juror intoxication admissible under the Rule's "outside influence'' exception. As a common sense matter, drugs and alcohol are outside influences on jury members. Commentators have suggested that testimony as to drug and alcohol abuse, even during deliberations, falls within this exception. "[T]he present exception paves the way for proof by the affidavit or testimony of a juror that one or more jurors became intoxicated during deliberations.... Of course the use of hallucinogenic or narcotic drugs during deliberations should similarly be provable.'' 3 Louisell & Mueller, Federal Evidence, 289, pp.143-145 (footnote omitted). See 3 Weinstein & Berger, Weinstein's Evidence, supra, ;pg606[04], pp.606-29-606-32 ("Rule 606(b) would not render a witness incompetent to testify to juror irregularities such as intoxication ... regardless of whether the jury misconduct occurred within r without the jury room''). The Court suggests that, if these are outside influences, "a virus, poorly prepared food, or a lack of sleep'' would also qualify. Distinguishing between a virus, for example, and a narcotic drug is a matter of line-drawing. Courts are asked to make these sorts of distinctions in numerous contexts; I have no doubt they would be capable of differentiating between the intoxicants involved in this case and minor indispositions not affecting juror competency....

The Court acknowledges that "post verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior,'' but maintains that "[i]t is not at all clear ... that the jury system could survive such efforts to perfect it.'' Petitioners are not asking for a perfect jury. They are seeking to determine whether the jury that heard their case behaved in a manner consonant with the minimum requirements of the Sixth Amendment. If we deny them this opportunity, the jury system may survive, but the constitutional guarantee on which it is based will become meaningless.

I dissent.


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