NC Supreme Court overturns decision by lower court, rules that verdict will stand despite affidavits detailing alleged juror misconduct
In a case pitting the right to a fair trial against the sanctity of the jury system, the N.C. Supreme Court has ruled that juror affidavits detailing a fellow juror’s misconduct cannot support a plaintiff’s bid for a new trial.
The Oct. 7 decision reverses findings by the trial court and state Court of Appeals. Both courts determined that affidavits from two jurors who accused a fellow juror of misconduct were admissible. The affidavits alleged that a juror had announced during the trial, and before hearing the plaintiff’s evidence, that he was going to side with the defendant and any attempts to change his mind would be futile.
Reacting to the affidavits, the trial court set aside the jury’s verdict and ordered a new trial. The appellate court affirmed the ruling. Appealing to the Supreme Court, the defendants argued that both lower courts had erred because the juror affidavits were inadmissible under the N.C. Rules of Evidence, which holds that such affidavits cannot be used to invalidate a jury’s verdict.
The court agreed, finding that state case law going back to the 1800s and legislation passed in the 1980s prevented juror affidavits about “internal influences,” which includes comments made by other jurors, from being used to impeach a verdict.
In the decision, Justice Barbara A. Jackson wrote that “allowing consideration of affidavits like those at issue [in this case] could encourage dissatisfied litigants to annoy, embarrass, and harass jurors until some evidence of juror misconduct is uncovered in the hopes of delaying or perhaps undermining implementation of a verdict.”
The 21-page decision is Cummings v. Ortega, Lawyers Weekly No. 11-06-1028. The full text of the ruling can be found at www.nclawyersweekly.com.
An attorney for the defendant says the decision protects the state’s jury system and clarifies, once and for all, the rule on admissibility of juror affidavits in motions for new trials. But the plaintiff’s attorney complains that the ruling overextends the reach of the rule and strips his client, along with future litigants, of the right to a fair and impartial jury.
Raleigh attorney Robert O. Crawford III, who represented the defendants in their appeal, said, “I think it really is important that they decided it this way, because otherwise I do think, and I argued this to the Supreme Court, that if they did not read the rule this way it could really lead to a lot of challenging of jury verdicts by disgruntled litigants.”
Crawford added that “there probably won’t be many more cases on this issue because the issue has been clarified.”
The plaintiff’s attorney, Patrick E. Neighbors of The Neighbors Law Firm in Cary, had argued that the rule on the inadmissibility of juror statements does not apply to misconduct that occurs before a case goes to a jury for deliberation.
Neighbors cited a section of the rule which states that “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations.”
“It’s pretty obvious to me,” Neighbors said. “The [rule] by its text only applies to statements or conduct arising during jury deliberations.”
But the court rejected Neighbors’ argument, determining that it is not the timing of the alleged misconduct but the nature of the allegations that guides the applicability of the rule. Any other interpretation would “vitiate the policies underlying the rule,” the court found.
“The court’s holding creates an absolute ban on any information arriving from other jurors as to a trial irregularity,” Neighbors said. “In my opinion, the judge should have some discretion to ensure a fair and impartial trial process for North Carolina’s citizens, regardless of the source of the information.”
A medical malpractice defense lawyer who was not involved in the case, Elizabeth E. McConnell of Northup McConnell & Sizemore in Asheville, supports the court’s decision. She fought a similar legal battle in 2002, when opposing counsel sought a new trial based, in part, on juror affidavits about how a particular piece of evidence in a wrongful death action affected the jury’s decision. The court did not grant a retrial.
“I think it’s completely improper to confront a juror after a verdict and suggest to them they did something improper and made the wrong decision,” she said. “The cases are often emotional and difficult on the jury.”
In May 2005, Penny Cummings filed a lawsuit alleging that Dr. Agnes Ortega, owner of Women’s Health Care Specialists in Sanford, injured her during a minimally invasive surgery called diagnostic laparoscopy.
A Harnett County Superior Court jury reached a unanimous verdict in December 2008, finding that Ortega was not liable for Cummings’ injuries.
After the verdict, two jurors, Rachel Simmons and Joel Murphy, filled out affidavits accusing fellow juror Charles Githens of misconduct. Simmons contacted Neighbors shortly after the trial, and she referred him to Murphy.
In her Jan. 2, 2009, affidavit, Simmons said Githens had told other jurors during the trial that “his mind was made up, that the jurors could agree with him or they would sit there through the rest of the year.” She also said that “there was not a full and frank discussion of the evidence,” because of Githens comments.
Murphy’s affidavit, filed 10 days after Simmons’ affidavit, corroborated the allegations of misconduct. He also said that Githens had “exhibited extremely disruptive behavior and was extremely discourteous to the female jurors in the case, to the extent that I believe it affected their ability to express their opinions about the evidence.”
Superior Court Judge Steve A. Balog ruled that the affidavits were admissible as they related to “juror misconduct occurring prior to deliberation of the jury.” In April 2009, he ordered a new trial.
The defense tracked down Githens, who filled out an affidavit denying that he’d done anything wrong during the trial, and appealed Balog’s ruling. But the Court of Appeals affirmed the decision, spurring the defense to file for discretionary review, which the Supreme Court granted on Dec. 15, 2010.
Ruling of law
In reversing the lower courts, the Supreme Court looked back to 1821, when the N.C. Supreme Court first decided in State v. M’Leod that the common law rule prevented juror testimony from unraveling verdicts.
The rule, based on a 1785 ruling out of England in Vaise v. Delaval, is “intended to protect and promote the jury system,” Justice Jackson wrote in the decision.
In July 1983, the N.C. General Assembly enacted legislation codifying the state’s Rules of Evidence, holding that new trials can be ordered based on juror testimony, but only when the testimony pertains to “extraneous prejudicial information” or “any outside influence” that improperly influenced the jury.
The state Supreme Court has defined external influences as information that is disclosed to jurors without being introduced as evidence. Internal influences include information that comes directly from jurors, such as a juror’s comments about their opinion of a case.
Githens’ comments, while “troubling,” reflected his “state of mind about the case,” and “this state of mind is precisely the type of information that [the rule] excludes,” Jackson wrote.
The court’s decision also relied on the U.S. Supreme Court’s 1985 ruling in Tanner v. United States, which held that juror testimony about other jurors using drugs and alcohol during a criminal trial could not support a post-verdict motion for a new trial. Allowing juror testimony regarding misconduct would have a chilling effect on juries and prevent open discussions in the jury room, the court found.
“Like the Court in Tanner, we acknowledge that in some cases the losing party may obtain evidence of substantial injustice or unfairness,” Jackson wrote, “but we are uncertain ‘that the jury system could survive’ even the most well-intentioned ‘efforts to perfect it.’”
Case name: Cummings v. Ortega
Court: N.C. Supreme Court
Judge: Barbara A. Jackson
Attorneys for appellant: Robert O. Crawford III, Renee B. Crawford and Arienne E. Blandina (Raleigh)
Attorney for appellee: Patrick E. Neighbors (Cary)
Issue: Are juror affidavits that allege misconduct on the part of a fellow juror admissible to support a plaintiff’s motion for a new trial?
Holding: No, because that the juror statements are inadmissible pursuant to Rule 606(b) of the N.C. Rules of Evidence.
Effect: Clarifies the rule on the admissibility of juror affidavits, and prevents litigants from seeking new trials based on such affidavits.