Mimesis Law
19 November 2019

Why Steven Avery’s Juror Can’t Change the Result

Jan. 12, 2016 (Mimesis Law) — Does it matter whether one of Steven Avery’s jurors says that he was bullied by other jurors, or that they reached a compromise, rather than firmly establishing guilt beyond a reasonable doubt?

In short, no.

Why not?

Because Wisconsin, like most states, forbids jurors from testifying about their deliberations under most circumstances, so long as that testimony serves to “impeach the verdict.”

So let’s say, for instance, that at your trial, it turns out that one of the jurors lied about something important. She said that she could be impartial. After she got through selection, she confided to another juror during deliberations that she would vote guilty in every trial, because the government would not arrest someone unless he was guilty.

So, now the defendant is convicted. There was a person on the jury who refused to consider the evidence or allow for the possibility of innocence. He is one of the thousands of victims of the sort of jury nullification urged by prosecutors, who tell juries to apply their “common sense” to reasonable doubt, or distract them from the evidence by urging them to “send a message to the community.”

The defendant tries to get a new trial by calling in the juror who was confided to. But he can’t, because he runs right smack dab into Wisconsin’s version of Federal Rule of Evidence 606 (b).

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 the juror’s 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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.

To paraphrase, jurors can almost never testify about how something that happened in the jury room has affected them.

How strictly enforced is this rule? Well…

“[F]our male jurors did not limit themselves to alcohol, however. They smoked marijuana “[j]ust about every day.” . In addition, two of them ingested “a couple lines” of cocaine on several occasions.  At times, two of the jurors used all three substances — alcohol, cocaine, and marijuana”

That’s Tanner v. United States, which held that your verdict still stands even if the jury consumes and sells drugs during your trial, and that no juror can testify about what happened.

Which is funny, because a huge part of criminal appeals is trying to convince a judge that a jury might have decided otherwise without some misstatement of law or fact by the judge or the prosecutor. The test is usually called something like “harmless error.”

So, without Rule 606, the defense attorney might do something like call a juror up, ask him about the trial, and ask whether the results would have been different had some piece of evidence been admitted or excluded.

Chances are, the juror would be pretty bad at knowing how a piece of evidence would affect his verdict. Jurors tend to be eager to please, in fact, and will often assure a lawyer that he tried a great case or that the outcome was close even when most of their time in deliberations was spent speculating on the punishment his client would receive.

That might not be a very accurate system, and it could lead to serious problems of finality. Very few people would want to be jurors if it meant the continuous interruption of their lives over the course of years (in other words, if they suffered the same fate as every presumptively innocent person who happens to be under indictment).

But it might still be more accurate than having a group of judges read the transcript, try to figure out how obviously guilty the defendant was, and evaluate the error based on their notion of what a “reasonable juror” might find. A “reasonable juror,” after all, tends to have opinions very much like those of an Ivy League-educated lawyer with a McMansion and a Big Law pedigree.

And the court’s professed interest in finality is weakened a bit in that jurors can easily be prosecuted for perjury if they misstate something during selection, for instance, whether they know the defendant. Their testimony can be used for everything except making the verdict seem unfair.

Also, if we truly worried about inconveniencing jurors, wouldn’t we just make the rule a privilege that a juror could assert, rather than an absolute prohibition on their testimony? After all, the juror in Steven Avery’s case might very well love to come forward and testify about his experiences in the jury room. It’s not the juror’s convenience we protect by stopping his testimony, it’s that of the prosecutor and the judge.

Ultimately, juries remain a black box. After a verdict, lawyers rarely know how the jury reached its conclusion, whether they followed their instructions, or how reasonable they were in looking at the evidence. Instead, our system simply resigns itself to hope for the best without examination.

So maybe what we’re hoping for is a different sort of finality. Not peace of mind for jurors. Not reaching the right result and sticking to it.

Maybe what we’re hoping is that, if we don’t uncover how the jury reached its verdict, we won’t have to overturn it. For as long as acquittals can’t be reviewed on appeal, prosecutors and judges will have little interest in seeing how the sausage is made. For as long as this evidence remains hidden, questionable convictions will remain unquestioned.

2 Comments on this post.

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  • Cornflake S. Pecially
    12 January 2016 at 12:43 pm - Reply

    So the juror claimed the decision came under duress. The filmmakers go on Today show (questionable venue imho but whatever) to “make some news”.

    Here is what Demos said on the Today Show:

    “They told us really that they were afraid that if they held out for a mistrial that it would be easy to identify which juror had done that and that they were fearful for their own safety,”

    You go with a source link from People Magazine whose editors  choose to lave out the first bit and runs with:

    “What they told us was that they feared for their personal safety,”

    Then you write a post about how a juror may have bullied (presumably by other jurors) and there is nearly zero chance this juror’s  revelation, if there was even such a revelation, will make a damn bit of difference even if he or she were to come forward. Because rules…

    Perhaps, but if this juror’s statement is accurately portrayed by Demos and in fact is not whole cloth fabrication by the juror in the first place, it would seem obvious that the jurors would have known who the hold out was but the jurors supposed concern is of an “outside” entity being able to ascertain who the hold out was.

    Was he or she threatened from an outside source? We don’t know, but if there was an outside threat, that’s a little different post about a whole new  conundrum.

    “except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.”

    So the moral of my comment:

    Do the editors of People, The Today Show, and the New York Times snort cocaine and smoke weed when they party together and if so should anyone give a shit?

    Thanks for the post though.

    Keep cutting and examining the carrot and celery rules before this  “but, but, but… it shouldn’t be that way” sentiment this flick has generated burns the stew and forever destroys its potential for some constructive consideration of the entire recipe.

    P.S. Just for the record I think  Len Kachinsky contacted the juror in question through a Finnish Death Metal porn site and threatened to send him or her a Christmas card of his grinning mug every year FOREVER, if the jury hung.

    P.S.S. Is Fault Lines gonna throw a Len Kachinsky look alike fundraiser bash this spring or what?

  • Peter
    12 January 2016 at 8:29 pm - Reply

    “prosecutors and judges will have little interest in seeing how the sausage is made” — Generalizes to the justice system as a whole, wouldn’t you say? Some guy centuries ago–was it Locke? Probably Locke…–said something about twelve being the magic number, and something else about democracy and a fair trial. Twelve it is! Carefully selected to be robots free of human emotion. It’s like Aristotle’s proof that women have fewer teeth than men. No need to actually count teeth.