The Fifth Amendment to the United States Constitution is often referred to as the “Due Process Clause” for its prohibition of depriving any person of “life, liberty, or property, without due process of law…” Of course, the Fifth Amendment applies to companies, as well as individuals, and both groups are certainly protected both inside and outside the courtroom. The focus of this article concerns the narrow issue of juror bias and whether its discovery requires a hearing or other indepth investigation into the otherwise impenetrable realm of jury deliberations.
In the matter of Fleshner v. Pepose Vision Institute, P.C., plaintiff was fired by a surgical clinic after speaking with a federal investigator concerning improprieties about how employees were compensated for overtime. She sued for wrongful termination, among other causes of action. The matter was tried before a jury, which awarded plaintiff $125,000, including $30,000 in actual damages and $95,000 in punitives.
After the jury was dismissed, a juror approached defense counsel and reported that during deliberations, another juror made anti-Semitic statements about a defense witness. Later, a different juror approached defense counsel and advised that several anti-Semitic statements were made, but did not specify exactly what was said. One of the jurors eventually submitted a sworn affidavit along these lines.
Armed with the affidavit, defense counsel filed a motion for new trial on several bases, including juror misconduct. The trial court denied the motion, concluding that jury deliberations are “sacrosanct” and that the juror’s alleged statements did not constitute misconduct requiring a new trial. The matter was eventually appealed to the Missouri Supreme Court, which reversed the trial court in holding that in light of the jurors’ reports of religious bias towards one of the trial witnesses, the trial court should have conducted an evidentiary hearing to at least determine whether the offensive statements were made. If so, and assuming they were made during deliberations (as opposed to a lunch break or other occasion where the jury is “out”), “then the motion for new trial should be granted as the parties would have been deprived of their right to a trial by 12 fair and impartial jurors.” 304 S.W. 3d 81, 89-90 (Mo. 2/9/10).
The Missouri Supreme Court’s ruling in Fleshner is at odds with a 1785 English case where Lord Mansfield established a prohibition on juror testimony after learning that a jury he empaneled had reached a verdict by drawing lots. The “Mansfield Rule” generally provides that evidence about juror misconduct during deliberations may not be used to impeach a jury’s verdict.
How does the apparent contradiction between the Mansfield Rule and Fleshner affect the corporate litigant who fears that juror bias toward a defense witness or any other significant bias has interfered with the legal process and otherwise deprived the litigant of his or her Fifth Amendment right to due process? First, the litigant’s attorney must make sure he or she preserves a complete record of the bias from juror witnesses to the comments. As with substantive trial issues, without a complete record of the bias, the issue may not be presented as an issue for appeal.
Second, inherent in the attorney’s duty to preserve a complete record is the duty to uncover the details and develop them. In Fleshner, the issue concerned anti-Semitic remarks. In your case, the bias may concern race, religion, gender or any of several other types of prohibited bias. Regardless of how descriptive, crude or mean-spirited, it is probably not enough if the best your lawyer can do is to suggest that a witness was biased against your company in general.
Finally, be advised that in this author’s opinion, Fleshner is probably the exception, not the rule. For example, Federal Rule of Evidence 606 expressly limits jurors to testifying only about whether extraneous prejudicial information was improperly brought to the jury’s attention, whether any outside influence was brought to bear on any juror or whether there was a mistake in entering the verdict onto the verdict form. There is no federal “right” under the Federal Rules of Evidence or the Federal Rules of Civil Procedure to a full-blown post-trial evidentiary hearing whereby the losing party calls all the jurors as witnesses in an effort to make a case for bias in the deliberation room.
In the event you are involved in a situation concerning juror bias, we recommend contacting your attorney to address this issue.
~~ Patrick E. Costello ~~