On Aug. 4, 2006, under the stony gaze of the presidents on Mount Rushmore, Randy Shauers, a young man driving at high speed in a pickup truck, clipped a motorcycle driven by Gregory Warger, who suffered numerous injuries, including the amputation of the lower part of his left leg. Although Warger sued Shauers for negligence, the jury returned a verdict in favor of the defendant.
After the trial, juror Stacey Titus approached Warger's attorney, alleging that the jury forewoman, Regina Whipple, may have unduly biased the panel during deliberations. According to Titus, Whipple told other jurors that her daughter had been at fault in a similar collision that left a man dead, and that had her daughter been found negligent, it would have "ruined her life." Titus claimed Whipple's disclosure improperly influenced the rest of the jurors. Warger's counsel filed an appeal with the district court of South Dakota, alleging that Whipple deliberately lied during jury selection (voir dire) about her ability to be impartial. The district court denied Warger's petition, ruling that juror statements made during deliberations cannot be used as the basis for an appeal.
Although Federal Rule of Evidence 606(b) does prohibit appeals based on statements that jurors make during deliberations, there are three exceptions: when jurors make a mistake in filling out the verdict form, when extraneous prejudicial information is improperly brought to the jury's attention (for example, through pretrial publicity or third-party contact, such as a judge or attorney communicating with jurors) or when an outside influence is improperly brought to bear on jurors. In Warger v. Shauers, the U.S. Supreme Court, which has agreed to hear the case, will focus on this last exception.
Lower courts disagree about whether juror testimony can be used to seek a new trial based on juror dishonesty during voir dire. Some courts (including the 8th and 10th Circuits and the district court that excluded Titus's statement) disallow juror statements about other jurors, citing that such statements fall outside the purview of 606(b). However, other courts (including the 9th and D.C. Circuits) frequently consider juror reports regarding dishonesty, noting that if a juror's personal experiences are related to the litigation in question, such experiences may constitute "outside influence" if jurors lie about those biases during jury selection. The U.S. Supreme Court will try to resolve this inconsistency, but regardless of its decision, the mere possibility of juror bias should spur research into the weight that such bias (as well as juror dishonesty about it) may have on jury verdicts. Voir dire, after all, may be ill-equipped to fully identify instances of juror bias for several reasons.
First, attorneys may fail to ask jurors questions that adequately uncover bias. Asking broad questions may gloss over specific juror biases. However, asking precise questions may highlight some instances of bias while sidestepping others. Second, research by Richard Nisbett and Timothy Wilson suggests that people aren't always aware of their biases. Third, even if jurors are aware of their biases, they may still reason that they can remain fair and impartial. Finally, jurors may feel uncomfortable discussing their inability to be fair or impartial in the presence of other prospective jurors.
Even when jurors are aware of their biases, it may be difficult to detect their prejudices if they lie about them during voir dire. Psychologists have long been interested in detecting lies (William Moulton Marston introduced his first polygraph in 1915), yet research continues to show that trained professionals in law enforcement are rarely better than novices at detecting deception. Given trained detectives' difficulties in deception detection, attorneys would be hard pressed to discover juror dishonesty during voir dire. Thus, statements that jurors make to their colleagues in the deliberation room may be the best tool to discern dishonesty, and allowing such statements under Federal Rule of Evidence 606(b) may be the best way to address juror lies.
While research suggests that biases can affect jurors' legal decisions, of more concern is the impact that such biases may have on other jurors. While many studies suggest that jurors' backgrounds may affect their own case perceptions and verdict decisions, discovering the extent to which a single juror's bias may sway the rest of the panel should be a goal of psychological research.
