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  • Writer's pictureBrian Foley

Woodlands Criminal Defense Attorney - Texas Rules of Evidence Series Rule 606 Juror as Witness

Woodlands Criminal Defense Attorney - Brian Foley

Rule 606 is another rule that seems like it should be pretty obvious. If you get selected to be on the jury that is hearing the case, you can't testify as a witness. And once again lawyers make rules that are sensitive to other lawyers attempts to not piss off other jurors. If you'd like to call a juror as a witness the other lawyer doesn't have to object to this in front of the jury. "The court must give a party an opportunity to object outside the jury's presence." Phew! That was a close one, I might have had to object to the foreman testifying in front of him. I mean if this is happening in your trial, things have gone off the rails. I smell a reversal or more likely an agreement that ends the litigation based on whatever is crazy enough to have happened to make a juror or party think that it is okay for a juror to testify.

Remember in Rule 605 about the judge being a witness? That rule said you don't even need to object to preserve error. This rule about jurors testifying doesn't have the same protection. So if you're a lawyer and you don't object to a juror being called as a witness you are going to waive your right to appeal on that issue. But hey, at least you don't have to object in front of the jury.

Rule 606 does have an important purpose found in part (b) which discusses juror testimony during an Inquiry into the validity of a verdict or Grand Jury indictment. A juror may not testify about statements made during deliberations, the effect of anything on that juror's or another juror's vote, and the court may not receive a juror's affidavit on these matters.

This is because the jury deliberation and Grand Jury process is secret, confidential, and immune from review. Oh wait . . . there are two exceptions - 1. The juror can testify about all of that if there was an outside influence which was improperly brought to bear on any juror or (2) to rebut a claim that the juror was not qualified to serve on the jury.

Well if you have a rule that makes deliberations confidential and secret and then you have an exception that says well you can testify about all that if you are talking about some outside influence what good is the rule in the first place? The United States Supreme Court has held that a defendant may be denied an evidentiary hearing despite affidavits from jurors that numerous jurors drank alcohol, smoked marijuana, sold a quarter pound of marijuana between jury members, and did cocaine. Tanner v. United States, 483 U.S. 107, 115-117 (1987). The Supreme Court went on to basically say, sure there is misconduct but we can't trash the whole system because of it. "[T]here 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." Id.

Imagine being the guy convicted in that case. The court agrees that there is evidence jurors were doing drugs while your case was being tried and the court says, "tough."


So what is an outside influence and therefore the subject of proper examination of the jury deliberation process through juror testimony? It is not defined by the rules. However, outside influence must "originate from sources other than the jurors themselves." Golden Eagle Archery Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex. 2000). In Golden Eagle a juror "“held up a document which showed the name of Wal-Mart and said something to the effect that the plaintiff had probably already gotten a big settlement from Wal-Mart and did not need any more money out of this case.” Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 366 (Tex. 2000). This was held not to be an outside influence because it was the conduct of a juror and not someone outside the jury.

I think a good example would be someone from the street throwing a message into the jury room during the deliberation that had suggestions about what to do with the case. A juror could properly testify that a paper airplane or wadded up paper flew through the window at about the same time that person X was walking by the courtroom. What the juror couldn't do is then talk about what the other jurors said in response because that would not be testimony about an outside influence but would rather be testimony about deliberations. However if the jurors took a break and two jurors were in the hallway talking by themselves and not as a deliberative jury body then this conversation would not count as deliberations and the Rule 606 requirements would not apply.

Rule 606. Juror’s Competency as a Witness

(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or

indictment, a juror may not testify about any statement made or incident that occurred during the

jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental

processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or

evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify:

(A) about whether an outside influence was improperly brought to bear on any juror; or

(B) to rebut a claim that the juror was not qualified to serve.


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