Juror misconduct revisited


With the summer doldrums revealing no Maine cases of particular import upon which I wish to riff, let's take a look at a recent Maine district court decision, because it treats the same issue that was addressed in a First Circuit decision summarized in my August 5 entry: juror misconduct.

The district court decision is U.S. v. Fuentes.  2:12-cr-50-DBH, United States v. Fuentes  There, as it explains, the Court (Hornby, J.) vacates a criminal conviction and orders a new trial based on a comment that someone reported that a juror had made while the trial was ongoing that led the Court to conclude that the juror had prejudged guilt.

It is a typically thoughtful and comprehensive opinion from Judge Hornby, and in it he discusses his equally thoughtful and deliberate approach to the investigation he undertook regarding this misconduct.  The portion I want to focus on is footnote 3:

"I did not put any of the interviewees under oath. At the time of interviewing the Probation Officer it did not occur to me and no one requested it. For the other two interviews, my concern was to obtain all that those individuals could tell me without frightening them with the formalities of an evidentiary hearing and what that might mean in its consequences for them. I already had the Probation Officer’s report of what the supervisee had said to her, and it was a matter of confirming or contradicting that report and seeking further elaboration. I did allow the supervisee to have his lawyer with him because he was still awaiting sentencing before another judge. For the juror, I feared that legal proceeding formalities would result in his refusing to answer questions. In other words, my focus throughout was on obtaining all the available information to assess the impartiality of the jury for the trial just ended, not what might be available for further proceedings against the individuals being interviewed. I also understood First Circuit caselaw to allow me the discretion whether or not to examine them under oath. See, e.g., United States v. Boylan, 898 F.2d 230, 258-59 (1st Cir. 1990).Comments at the time of the juror interview led me to believe that the government considered an evidentiary hearing with testimony under oath necessary, and I therefore asked the parties to brief that issue. Since neither brief refers to the issue, however, I consider it abandoned."

Your intrepid blogger looked at Boylan, which does indeed give trial judges wide berth in how they want to conduct investigations of juror misconduct.  I also trotted around the courts of appeal and noted that (a) generally, they seem to take witnesses' testimony under oath if there's a chance that a conviction will be vacated (even a First Circuit decision); but (b) there doesn't seem to be any case law that says testimony has to be under oath.  (Note:  This was not a scorched earth search, just a trot.)  And, in any event, this footnote seems to say that the U.S. Attorney's office waived the issue by not briefing it.

What struck me in reading this footnote wasn't so much that the interviews which culminated in the decision to vacate the conviction were not done under oath, but the reason why: "my concern was to obtain all that those individuals could tell me without frightening them with the formalities of an evidentiary hearing and what that might mean in its consequences for them."

It's my understanding that we put people under oath because we think that we are more likely to have them tell the truth if they are sworn.  You want them to be frightened with the formalities of an evidentiary hearing, because of the gravity of the need for truthful testimony.

An investigation of juror misconduct is different from testimony taken during the trial itself, in that the result of the investigation can only lead to vacating the conviction, which is allowed a re-do.  Still, it's a pretty big step to vacate a conviction for juror misconduct.  But in any event, I would think that the goal is still the same: to get to the truth of the matter.

I understand on one level the perspective that putting an interviewee under oath might scare them, and that if they are scared, they are less likely to be as candid.  As the footnote explains, the Court appeared to want to avoid having the juror clam up.  If you are carrying out an investigation like this, I would think that a driving goal is to gather as much information as you can.

But in theory, whatever you do manage to get out of a witness is supposed to be more likely true if it's under oath - otherwise why put anyone under oath in judicial proceedings?  Which is more critical in this context - getting a witness to say something, or making sure that what s/he says is true?