It's been a while since I posted about something in the jumbled swamp of Texas criminal law that I wish I could change
. There are so many possibilities, I suppose, that it's hard for me to pick out any one thing. But since this issue came up in a colleague's case today, I'll throw it out there. (Note: What follows is a hypothetical, loosely based on my colleague's case, not a precise account of all the proceedings. No facts that affect the material legal issues, however, are changed.)
Let's say you represent someone charged with murder and your defense is identity--you don't deny the victim was murdered, but you say that your client didn't do it. At trial, you feel like you have done a pretty good job at poking holes in the state's case, creating reasonable doubt through their own witnesses. You call a couple witnesses of your own to shore some things up. For various reasons, you and your client decide that he should not testify. Despite your best efforts, the jury finds your client guilty and sentences him to prison. Then let's say that after the trial, one of the jurors sort of casually mentions something to you about the defendant not testifying. Just to be thorough, let's say that you have your investigator contact some of the jurors and ask them if they would mind answering some questions about their service. You don't force any of them to talk to you (not that you have any way of forcing them), and two or three of them say that the defendant's failure to testify affected their decision to convict. You'd think you would get a new trial out of that, right? Or, at least, you'd be able to present those statements by the jurors as evidence at a hearing on a motion for new trial. Well, you'd be wrong.
Rule 21.3 of the Texas Rules of Appellate Procedure permits a court to grant a defendant a new trial based on jury misconduct for a number of reasons. These include situations where the jurors decided by lot or some other game of chance (the old "heads, he's guilty; tails, he's not guilty" scenario); where the jury received evidence about the case from a source other than evidence produced at trial; and when "the jury engaged in such misconduct that the defendant did not receive a fair and impartial trial." So, what's the problem? Based on that rule, you'd think that you would get a new trial if you could establish that some jurors improperly, and in violation of the cour'ts clear instructions, considered the defendant's failure to testify as a fact against him. Right? At the very least, you would be able to present evidence of the jury misconduct at a hearing on your motion for new trial. Well, that's where things get sticky.
Rule 606 of the Texas Rules of Evidence prohibits former jurors from testifying as to anything that affected their deliberations except whether an "outside influence was improperly brought to bear" upon a juror. This means, that you cannot present any juror testimony (live or by affidavit) to establish that they violated the court's instructions not to consider the defendant's failure to testify--or anything else for that matter. You couldn't present juror testimony establishing that a juror voted to convict because of a bias or prejudice against the race or religion of the defendant or for any other reason clearly contrary to the law. Basically, you're screwed. You have a right to a new trial if the jury engaged in gross misconduct, but you have almost no way of proving they did.
Texas appellate courts enforce this rule strictly, repeatedly upholding trial court decisions to bar juror testimony, even in the face of statutory (that it violates Rule 21.3) and constitutional (that it violates the 5th, 6th, 7th, and 14th amendments) challenges. In one case, during deliberations, the jury repeatedly sent out notes stating that one of the jurors was insisting that she would consider the defendant's failure to testify regardless of the court's instruction not to do so. At one point, the note begged the court for guidance because they were worried that any future action by the jury would be unfair. Unphased by this development, the court merely instructed the jury to follow their instructions and repeatedly denied the defendant's motions for mistrial. Eventually, the jury convicted. At a motion for new trial, the trial court barred any juror testimony as to whether that juror or any other improperly considered the defendant's failure to testify. The appellate court upheld that decision.
This rule needs to change. I understand the policy reasons behind the rule. They don't want parties or their supporters harassing jurors in an effort to undo a verdict. But, that interest can be protected without such a drastic rule that excludes all juror testimony. It is already a felony to harass, intimidate, or threaten a juror based on his or her service. It is also a violation of attorney ethical rules to say anything to a juror merely to harass or embarrass the juror. Those protections--if properly enforced--are sufficient to protect jurors from harassment and intimidation. A blanket rule barring all juror testimony--even when that testimony establishes gross jury misconduct and a clear violation of a defendant's right to a fair trial--goes too far.
Rule 606 is bad law and bad policy. It is bad law when you deny a defendant any meaningful procedure to effectively enforce his consitutional rights. And it is bad policy when you allow a verdict to stand despite jurors' blatant disregard of their oath and their duty to follow the law.