Com. v. Fidler

• Citation: 385 N.E.2d 513,377 Mass. 192
• Parties: COMMONWEALTH v. John W. FIDLER.
• Decision Date: 30 January 1979
• Court: United States State Supreme Judicial Court of Massachusetts

Page 513

385 N.E.2d 513

377 Mass. 192

COMMONWEALTH v. John W. FIDLER.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 4, 1978.

Decided Jan. 30, 1979.

Michael J. McHugh, Legal Asst. to the Dist. Atty., Cambridge, for the Commonwealth.

James W. Lawson, Boston, for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

ABRAMS, Justice.

By its application for further appellate review the Commonwealth seeks reversal or modification of an Appeals Court decision pertaining to the impeachment of jury verdicts through evidence both of "extraneous" outside influences on the jury and of intra-jury communications. This issue was raised by the defendant's motion for a new trial which was denied by the trial judge. ¹ The Commonwealth also urges this court to speak to the issue of the conduct of post-verdict interrogation of jurors by litigants or by counsel. We are in agreement with the Appeals Court in concluding that a hearing must be held. We reach our result on different grounds, and we limit the scope of the hearing.

We state only those facts relevant to the hearing on the motion for a new trial. Fidler based his motion on allegations that the jurors' deliberations were influenced by matters they had been instructed to disregard, and by extraneous matters not introduced in evidence. In support of this motion Fidler offered the affidavit of a juror named Russell. The Russell affidavit alleged four instances of juror misconduct during deliberations.

Two of the alleged instances of misconduct involved consideration by the jurors of matters the judge had instructed them to ignore. The affidavit alleged that there was "extensive discussion" of one defense witness's testimony (elicited on cross-examination) that he had given similar testimony in a previous trial for a defendant who had been convicted of armed robbery three or four months earlier. The judge had struck that testimony and instructed the jury to disregard it.

Russell's affidavit also alleged that during the jury's deliberation there was "significant talk" concerning a remark by the judge on Fidler's ability to take the stand. ² The judge instructed the jury that any reference he made to Fidler's ability to testify was inadvertent. He told them to strike the remark from their minds because Fidler had no obligation to take the stand.

The affidavit alleged that in addition to considering material struck by the judge, the jurors were exposed to information which was not admitted or even discussed at trial. One juror allegedly stated to the others, "People who run around with guns like that ought to be afraid. Maybe someone might shoot at them, someday." The affidavit alleged that another juror responded, "They did shoot at him last month and almost got him in Charlestown." Russell then allegedly said, "I thought we weren't supposed to know anything about this case ahead of time," and the juror denied knowing anything about the case in advance.

The affidavit states that after trial Russell approached an assistant district attorney at the court house, and asked to whom she should report jury misconduct. Russell was referred to a State police detective, but she "was not satisfied." She then called the American Civil Liberties Union on whose advice she contacted Fidler's attorney.

A hearing was held on Fidler's motion at which defense counsel offered the Russell affidavit. The judge refused to consider the affidavit, or to take oral testimony from Russell and denied the motion.

The Commonwealth argues that the judge's refusal to accept the Russell affidavit is mandated by the rule prohibiting use of juror testimony to impeach jury verdicts. Woodward v. Leavitt, 107 Mass. 453 (1871). Harrington v. Worcester, Leicester & Spencer St. Ry., 157 Mass. 579, 32 N.E. 955 (1893). Commonwealth v. Meserve, 156 Mass. 61, 30 N.E. 166 (1892). Bridgewater v. Plymouth, 97 Mass. 382 (1867). Capen v. Stoughton, 16 Gray 364 (1860). Cook v. Castner, 9 Cush. 266 (1852). See Greenberg, Impeachment of Jury Verdicts, 53 Marq.L.Rev. 258, 260-263 (1970).

The rule against juror impeachment of a verdict first appeared in Vaise v. Delaval, 99 Eng.Rep. 944 (K.B.1785), and was soon adopted in this country. ³ The policy supporting the rule was stated in McDonald v. Pless, 238 U.S. 264, 267-268, 35 S.Ct. 783, 59 L.Ed. 1300 (1915), where the Court stated that without the rule, "(j)urors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference." Other policies advanced in support of the rule include reducing incentives for jury tampering, promoting the finality of verdicts, and maintaining confidence in jury verdicts. Government of the V. I. v. Gereau, 523 F.2d 140, 148 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). Wallin, To Impeach or Not to Impeach: The Stability of Juror Verdicts in Federal Courts, 4 Pepperdine L.Rev. 343, 344 (1977).

The Massachusetts rule on juror impeachment of a verdict is expressed in Woodward v. Leavitt, 107 Mass. 453, 460 (1871): "The proper evidence of the decision of the jury is the verdict returned by them upon oath and affirmed in open court; it is essential to the freedom and independence of their deliberations that their discussions in the jury room should be kept secret and inviolable; and to admit the testimony of jurors to what took place there would create distrust, embarrassment and uncertainty." We still adhere to our rule which requires courts to protect jurors and their verdicts from unwarranted intrusions and which emphasizes the importance of the finality of jury verdicts.

However, contrary to the Commonwealth's claim, our rule does not create an absolute prohibition against juror testimony to impeach a verdict. In Woodward v. Leavitt, supra at 466, we concluded that juror testimony is admissible to establish the existence of an improper influence on the jury, but is not admissible to show the role which the improper influence played in the jury's decisions. ⁴ See Commonwealth v. Harrison, 368 Mass. 366, 331 N.E.2d 873 (1975). Under our rule we have upheld the admission of juror testimony to demonstrate that a juror took an unauthorized view, but not to show the effect of the view on the jurors' deliberations. Harrington v. Worcester, Leicester & Spencer St. Ry., 157 Mass. 579, 581-583, 32 N.E. 955 (1893). The Supreme Court drew the same distinction in Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). See also People v. Hutchinson, 71 Cal.2d 342, 349, 78 Cal.Rptr. 196, 455 P.2d 132, cert. denied, 396 U.S. 994, 90 S.Ct. 491, 24 L.Ed.2d 457 (1969); People v. DeLucia, 20 N.Y.2d 275, 278-279, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967). ⁵

We think our rule limiting juror testimony to the existence of extraneous "disturbing" influences protects jurors and their verdicts. It also protects litigants from the "disturbing influence" of extraneous matters. See Woodward, supra at 466.

The Commonwealth's suggestion of an inflexible rule excluding all juror testimony offered to impeach verdicts achieves stability at the expense of doing justice between the parties a result not consistent with the ideal of trial by an impartial jury. 53 Marq.L.Rev., Supra at 274. Litigants are entitled to a decision on the evidence at trial, governed by the rules of evidence. Therefore, we conclude that Woodward does not prohibit juror testimony from showing, for example, that a jury verdict may have been based on: (1) unauthorized views of sites by jurors (Harrington v. Worcester, Leicester & Spencer St. Ry., 157 Mass. 579, 581, 32 N.E. 955 (1893), People v. DeLucia, 20 N.Y.2d 275, 278-280, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967)); (2) improper communications to the jurors by third persons (Mattox v. United States, 146 U.S. 140, 148-150, 13 S.Ct. 50, 36 L.Ed. 917 (1892), People v. Hutchinson, supra, 71 Cal.2d at 348-351, 78 Cal.Rptr. 196, 455 P.2d 132); or (3) improper consideration of documents not in evidence (United States v. Thomas, 463 F.2d 1061, 1063-1065 (7th Cir. 1972) (juror consideration of newspaper article)). See cases collected at 4 Pepperdine L.Rev., Supra at 358-364. Where a verdict is the product of misconduct based on extraneous matter, an inflexible rule that bars the best evidence of that misconduct does not serve the interests of providing a fair and just trial for litigants. 53 Marq.L.Rev., Supra.

Moreover, juror testimony concerning the existence of extraneous influences does not, in our view, unduly intrude on jury deliberations. The existence of such influences often can be objectively ascertained, and many times the evidence can be corroborated. People v. DeLucia, 20 N.Y.2d 275, 279, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967). We do not think that allowing such evidence will result in unduly extended litigation or in wholesale upsetting of jury verdicts. People v. Hutchinson, supra, 71 Cal.2d at 350, 78 Cal.Rptr. 196, 455 P.2d 132. Carlson & Sumberg, Attacking Jury Verdicts: Paradigms for Rule Revision, 1977 Ariz.St.L.J. 247, 252. Our decision does not permit evidence concerning the subjective mental processes of jurors, such as the reasons for their decisions. ⁶ However, we conclude that, "(w)here overt factors are present by which the verdict's validity can be objectively assessed, the law's commitment to a just result warrants receiving evidence as to the alleged acts of misconduct. But where the juror would testify solely to matters resting in his own consciousness, the dubious value of the testimony is outweighed by the need for stability in verdicts" and the testimony should be...