CRE 606

History

Source: Entire rule amended and effective and committee comment added and effective September 27, 2007. COMMITTEE COMMENT Rule 606(b) has been amended to bring it into conformity with the 2006 amendments to the federal rule, providing that juror testimony may be used to prove that the verdict reported was the result of a mistake in entering the ver- dict on the verdict form. The federal amend- ment responded to a divergence between the text of the Rule and the case law that had established an exception for proof of clerical errors. See Fed. R. Evid. 606(b) advisory com- mittee notes (2006 Amendments); see also Stewart v. Rice, 47 P.3d 316 (Colo. 2002). ANNOTATION Law reviews. For article, ‘‘Rule 606(b): Competency of Jurors as Witnesses’’, see 25 Colo. Law. 47 (Mar. 1996). For article, ‘‘Ad- missibility of Juror Affidavits Under C.R.E. 606(b)’’, see 32 Colo. Law. 61 (Mar. 2003). For article, ‘‘People v. Harlan: The Colorado Su- preme Court Takes a Step Toward Eliminating Religious Influence on Juries’’, see 83 Den. U.L. Rev. 613 (2005). For article, ‘‘Uncovering Juror Racial Bias’’, see 96 Denv. L. Rev. 309 (2019). Where a juror makes a clear statement that indicates he or she relied on racial ste- reotypes or animus to convict a criminal de- fendant, the sixth amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee. Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017). Not every offhand comment indicating ra- cial bias or hostility will justify setting aside the no-impeachment bar to allow further ju- dicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating fac- tor in the juror’s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, in- cluding the content and timing of the alleged statements and the reliability of the proffered evidence. Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017). Purpose of this rule is to reinforce the final- ity of jury verdicts, to protect the sanctity of jury deliberations, and to safeguard the privacy of jurors; however, in cases where result of jury deliberations are substantially undermined due to fundamental flaws in deliberation process, courts must weigh these policies against over- riding concern that parties to judicial process be assured of fair result. Ravin v. Gambrell by and through Eddy, 788 P.2d 817 (Colo. 1990). Section (b) has three fundamental pur- poses: To promote finality of verdicts, shield verdicts from impeachment, and protect jurors from harassment and coercion. Stewart v. Rice, 47 P.3d 316 (Colo. 2002). Section (b) allows juror testimony on the question of whether extraneous prejudicial information was improperly brought to the jurors’ attention. People v. Harlan, 109 P.3d 616 (Colo. 2005). The common law in Colorado supports a plain meaning application of section (b) and its two stated exceptions. Stewart v. Rice, 47 P.3d 316 (Colo. 2002). Section (b) precludes the use of jurors’ post-verdict statements to the court to im- peach the unanimous verdict. Granting of new trial based upon jurors statements improper even if statements made prior to the jury being disbursed. Hall v. Levine, 104 P.3d 222 (Colo. 2005). This rule contains no exception for clerical error. Stewart v. Rice, 47 P.3d 316 (Colo. 2002). The Colorado supreme court amended sec- tion (b) in 2007 to add an exception for a mistake in entering a verdict on the verdict form. Malpica-Cue v. Fangmeier, 2017 COA 46, 395 P.3d 1234. The mistake exception in section (b) is nar- row and limited to cases in which the verdict rendered is not the verdict to which the jury agreed. Malpica-Cue v. Fangmeier, 2017 COA 46, 395 P.3d 1234. An exception to the rule that a trial court cannot reconvene a discharged jury applies when the jury has not yet dispersed, there is no evidence that the jury has been subjected to outside influences from the time of the initial discharge to the time of re-empanelment, and the jury remains under the de facto control of the court. It was appropriate to modify a judg- ment that relied on an ambiguous verdict form based on the proceedings following the dis- charge of the jury because the foregoing re- quirements were met. Hanna v. State Farm Ins. Co., 169 P.3d 267 (Colo. App. 2007). Trial court erred in refusing to reconvene a discharged jury the day the trial ended. The jurors, who were still in the courthouse, made a mistake on the verdict form and wanted to fix it. Malpica-Cue v. Fangmeier, 2017 COA 46, 395 P.3d 1234. Jury foreman’s statements concerning a possible clerical mistake in filling out dollar amounts of verdict forms held not precluded by this rule. Kading v. Kading, 683 P.2d 373 (Colo. App. 1984). Jury foreman’s affidavit that a clerical er- ror was made on the verdict form justifies an evidentiary hearing on the issue to ascertain the jurors’ true verdict. Malpica-Cue v. Fangmeier, 2017 COA 46, 395 P.3d 1234. The affidavit does not, by itself, require changing the verdict. The court must attempt to ascertain whether the foreman’s position actu- ally reflects the views of all of the jurors. Malpica-Cue v. Fangmeier, 2017 COA 46, 395 P.3d 1234. Manner in which district court polled jury regarding perceived inconsistent verdicts ex- ceeded the bounds of section (b). Court vio- lated rule by engaging in a detailed and lengthy conversation with the jury regarding its delib- erative confusion. Where none of the rule’s ex- ceptions applied, the manner of the court’s questioning of the jury was obviously erroneous as it resulted in impermissible jury testimony that revealed the mental processes of the jurors. People v. Juarez, 271 P.3d 537 (Colo. App. 2011). A two-part inquiry determines whether ex- traneous prejudicial information was im- properly brought to the jurors’ attention. First, the court decides whether extraneous in- formation was improperly before the jury, and then, second, based on the objective ‘‘typical juror’’ standard, the court determines whether use of the extraneous information posed a rea- sonable probability of prejudice to the defen- dant. This inquiry is a mixed question of law and fact. The appellate court defers to the trial court’s findings of historical facts if supported by competent evidence and reviews the conclu- sions of law de novo. People v. Harlan, 109 P.3d 616 (Colo. 2005). Extraneous information encompasses any information that is not properly received into evidence or included in the court’s instruc- tions. Extraneous information is improper whether or not the court specifically warned against its use. People v. Harlan, 109 P.3d 616 (Colo. 2005). Competent evidence supports the trial court’s finding that the jury considered extraneous in- formation in the jury room in the form of Bible passages related to the death penalty. People v. Harlan, 109 P.3d 616 (Colo. 2005). Text messages stored on cell phone not extraneous information. Text messages at is- sue were stored in cell phone that was admitted into evidence without qualification or limita- tion, and the jury used the cell phone as a cell phone is intended to be used by turning it on and discovered information within the scope and purview of the admitted evidence. People v. Garrison, 2012 COA 132M, 303 P.3d 117. Jurors may rely on their professional and educational expertise to inform their delib- erations so long as they do not bring in legal content or specific factual information learned from outside the record. Kendrick v. Pippin, 252 P.3d 1052 (Colo. 2011). For purposes of determining what consti- tutes ‘‘extraneous prejudicial information’’, ‘‘legal content’’ refers to a statement of law that is inconsistent with or supplemental to the instructions provided by the trial court. People v. Newman, 2020 COA 108, 471 P.3d 1243. Juror’s pre-existing personal expertise or knowledge of a general nature does not con- stitute extraneous information. Juror may use his or her particular pre-existing knowledge of mathematics to analyze admitted evidence of relevant locations and distances and the speed of defendant’s vehicle. Kendrick v. Pippin, 222 P.3d 391 (Colo. App. 2009), rev’d on other grounds, 252 P.3d 1052 (Colo. 2011). Juror’s statement during deliberations re- garding the severity of a charged offense does not constitute extraneous information because the statement was based on the juror’s general knowledge or personal experience. Therefore, the statement cannot be used to im- peach the verdict. People v. Holt, 266 P.3d 442 (Colo. App. 2011). In order to determine whether improper introduction of extraneous information into the jury room created a reasonable possibil- ity that the jury’s verdict was influenced to the detriment of the defendant, the following factors may be considered: (1) How the extra- neous information relates to critical issues in the case; (2) how authoritative the source con- sulted is; (3) whether a juror initiated the search for extraneous information; (4) whether the in- formation obtained by one juror was brought to the attention of another juror; (5) whether the information was presented before the jury reached a unanimous decision; and (6) whether the information would be likely to influence a typical juror to the detriment of the defendant. People v. Harlan, 109 P.3d 616 (Colo. 2005). A reasonable possibility exists that Bible ma- terial introduced into the jury room could have influenced a typical juror to vote for the death penalty instead of a life sentence; therefore, the defendant was prejudiced, and the death penalty sentence must be vacated. People v. Harlan, 109 P.3d 616 (Colo. 2005). Use of dictionary by a juror to obtain a definition of the crime with which the defendant was charged was improper and constituted mis- conduct. Wiser v. People, 732 P.2d 1139 (Colo. 1987). However, defendant bears the burden of proving that use of a dictionary definition posed a reasonable possibility of prejudice to him. People v. Holt, 266 P.3d 442 (Colo. App. 2011). Juror’s use of the internet to obtain infor- mation about a drug prescribed to the defendant was improper and constituted misconduct. People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff’d on other grounds, 97 P.3d 932 (Colo. 2004). Inquiry by juror about source of jury in- structions to friend who was a legal secretary was misconduct which had potential for distort- ing the deliberations of the jury. Wiser v. People, 732 P.2d 1139 (Colo. 1987). Section (b) bars a court from considering juror affidavits if they do not address matters within the two stated exceptions: Extraneous prejudicial information improperly brought to the juror’s attention or improper outside influ- ence exerted upon a juror. Stewart v. Rice, 47 P.3d 316 (Colo. 2002); People v. Richardson, 184 P.3d 755 (Colo. 2008). Whether section (b) prohibits juror testi- mony alleging juror misconduct depends on the nature of the misconduct alleged, not when it occurred. People v. Archuleta, 2021 COA 49, 491 P.3d 1172. A jury verdict may not be impeached by affidavit except in very limited circumstances involving external influence improperly bearing upon the jury. People v. Graham, 678 P.2d 1043 (Colo. App. 1983), cert. denied, 467 U.S. 1216 (1984). A jury verdict in a criminal case may not generally be impeached by affidavits of jurors unless there has been external influence on the jury or there has been jury misconduct. People v. Collins, 730 P.2d 293 (Colo. 1986); People v. Garcia, 752 P.2d 570 (Colo. 1988); People v. Burke, 2018 COA 166, 452 P.3d 124. Defendant convicted of theft by receiving may not use affidavit of jury foreman to show that jury’s finding regarding value of items in- volved in theft was based on speculation. People v. McCoy, 764 P.2d 1171 (Colo. 1988). Affidavits concerning jurors’ mental pro- cesses held inadmissible. Rome v. Gaffrey, 654 P.2d 333 (Colo. App. 1982); People v. Collins, 730 P.2d 293 (Colo. 1986); Ravin v. Gambrell by and through Eddy, 788 P.2d 817 (Colo. 1990); Davis v. Lira, 817 P.2d 539 (Colo. App. 1991), rev’d on other grounds, 832 P.2d 240 (Colo. 1992). Juror’s affidavit about her physical condition and her position as holding out alone against other jurors cannot be received under this rule. Gambrell by and through Eddy v. Ravin, 764 P.2d 362 (Colo. App. 1988), aff’d, 788 P.2d 817 (Colo. 1990). Juror’s affidavit and testimony about her physical condition and its effect on her ability to hold out against the other jurors’ yelling consti- tuted an improper inquiry into her thought pro- cesses and emotions and was, therefore, inad- missible. People v. Ferrero, 874 P.2d 468 (Colo. App. 1993). Juror’s affidavits concerning mental pro- cesses in determining the amount of the verdict, including specific statements that the damages awarded were to pay for the plaintiff’s attorney fees were not admissible and could not be used to impeach the jury award. Munoz v. State Farm Mut. Auto. Ins. Co., 968 P.2d 126 (Colo. App. 1998). Trial court properly considered affidavit alleging coercion against a juror and hearing testimony from juror who asserted the miscon- duct. People v. Collins, 730 P.2d 293 (Colo. 1986). Testimony concerning jurors’ mental pro- cesses held inadmissible and such testimony cannot serve as basis for denial of defendant’s postconviction motion. People v. Crespin, 682 P.2d 58 (Colo. App. 1984), rev’d on other grounds, 721 P.2d 688 (Colo. 1986). Witness’ testimony as to the juror’s fear was an improper inquiry into the juror’s thought processes and emotions and was, therefore, in- admissible. People v. Harrison, 746 P.2d 66 (Colo. App. 1987). Testimony at hearing as to the jurors’ emo- tional reactions to extraneous information was excludable as improper inquiry into the jurors’ thought processes and emotions during delib- erations. People v. Ferrero, 874 P.2d 468 (Colo. App. 1993). Court may only consider evidence of ob- jective circumstances and overt coercive acts by other members of jury and may not con- sider the effect this conduct had on the minds of the jurors. People v. Rudnick 878 P.2d 16 (Colo. App. 1993). A juror may not testify as to the wrong exercise of his judgment or his confusion on the law or the facts or his misunderstandings. People v. Collins, 730 P.2d 293 (Colo. 1986). Courts are precluded by section (b) from engaging in direct post-verdict investigations into the deliberative processes of jurors. Wil- son v. O’Reilly, 867 P.2d 92 (Colo. App. 1993). But where court simply asked the juror if this in fact was her verdict and where only the juror’s answers to the court’s questions dis- cussed the jury’s deliberations, court’s actions were consistent with section (b). People v. Barnard, 12 P.3d 290 (Colo. App. 2000). When juror was questioned about whether the verdict in favor of defendant as reported by a written special verdict was her verdict and juror responded ‘‘no’’, judge should have declared a mistrial or directed the jurors to deliberate further; by engaging in extended questioning as to why the juror had said the verdict was not hers, the court and counsel improperly delved into the deliberations and mental processes of the jurors and risked un- duly influencing the juror to conform to the signed verdict. Simpson v. Stjernholm, 985 P.2d 31 (Colo. App. 1998). Trial court erred by failing to strike affi- davit of juror in which he stated he dissented from the jury’s award because he thought the award inadequate. Neil v. Espinoza, 747 P.2d 1257 (Colo. 1987). Rule applicable to the impeachment of a certificate of ascertainment and assessment in eminent domain proceedings. Aldrich v. District Court, 714 P.2d 1321 (Colo. 1986). To prevail on motion for new trial on basis of juror testimony alleging misconduct, movant must establish he was prejudiced by the misconduct. People v. Hernandez, 695 P.2d 308 (Colo. App. 1984); Wiser v. People, 732 P.2d 1139 (Colo. 1987); People v. Garcia, 752 P.2d 570 (Colo. 1988); Ravin v. Gambrell by and through Eddy, 788 P.2d 817 (Colo. 1990); People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff’d on other grounds, 97 P.3d 932 (Colo. 2004). Test for setting aside jury verdicts in both civil and criminal actions is not whether the impropriety actually influenced a juror, but whether it had the capacity of doing so. Ravin v. Gambrell by and through Eddy, 778 P.2d 817 (Colo. 1990). One seeking to set aside a verdict based on allegations of improper extraneous influence on the jury must establish the fact of such influence and also that there was a reasonable possibility of prejudice. Wilson v. O’Reilly, 867 P.2d 92 (Colo. App. 1993). Evidentiary hearing on jury misconduct. In order to constitute grounds for setting aside a verdict because of any unauthorized or im- proper communication with the jury, it is in- cumbent upon defendant to show that he was prejudiced thereby. The determination of whether prejudice has occurred is a matter within the sound discretion of the trial court. People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev’d on other grounds, 712 P.2d 1023 (Colo. 1986); People v. Garcia, 752 P.2d 570 (Colo. 1988). Review of whether a new trial is required because of juror misconduct is a mixed ques- tion of law and fact. The court must apply a normal deferential standard to the trial court’s factual findings, but review de novo the trial court’s conclusions of law. People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff’d, 97 P.3d 932 (Colo. 2004). Defendant not entitled to a new trial as a result of influence upon two jurors by other jurors absent evidence of threats, abuse, or any coercion beyond mere argumentation. People v. Black, 725 P.2d 8 (Colo. App. 1986). To prevail on a motion for a new trial based on exposure of jurors to extraneous information or influences, defendant must es- tablish that he was prejudiced by the exposure. People v. Harrison, 746 P.2d 66 (Colo. App. 1987). Prejudice is shown if the jurors’ exposure to extraneous information or influences establishes a reasonable possibility that the extraneous in- formation affected the verdict. People v. Harri- son, 746 P.2d 66 (Colo. App. 1987). However, defendant cannot claim preju- dice resulting from his own conduct as a ground for setting aside the verdict. People v. Harrison, 746 P.2d 66 (Colo. App. 1987). In determining whether a new trial is re- quired due to juror misconduct, the court must determine whether there is a reasonable possibility that the extraneous contact or influ- ence affected the verdict, so as to require a new trial only where there is a reasonable possibility that verdict was tainted by introduction of out- side information or influences into jury delib- erations. Wiser v. People, 732 P.2d 1139 (Colo. 1987); People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff’d, 97 P.3d 932 (Colo. 2004). New trial required where there was reason- able possibility that jury verdict was affected by bailiff’s remark that if a verdict could not be reached the judge might make jury deliberate for up to two weeks. Gambrell by and through Eddy v. Ravin, 764 P.2d 362 (Colo. App. 1988), aff’d, 788 P.2d 817 (Colo. 1990). Trial court erred by failing to consider part of a juror’s affidavit discussing another juror’s potential misrepresentation or conceal- ment of prejudicial beliefs during voir dire. Black v. Waterman, 83 P.3d 1130 (Colo. App. 2003). Trial court properly considered affidavits of three jurors in determining whether an en- velope containing defendant’s suppressed state- ment which had been accidentally taken to the jury room affected the jury’s determination. People v. Smith, 856 P.2d 26 (Colo. App. 1992). Trial court abused its discretion in denying a motion for new trial which was filed be- cause the jury foreman obtained extraneous information that was pertinent to the issue of the credibility of the accused versus the vic- tim. People v. Fox, 862 P.2d 1000 (Colo. App. 1993). No abuse of discretion to deny new trial when jury foreman obtained extraneous infor- mation that was not pertinent to the issue at trial and did not share that information with the other jurors. People v. Bohl, 2018 COA 152, 446 P.3d 907. Trial court erred in granting a new trial based on the jury’s supposed mental pro- cesses. Despite any initial appearance of confu- sion, once a jury has rendered a consistent final verdict it is inappropriate to set aside the verdict because of the court’s speculation that the con- fusion may have continued. People v. Angell, 917 P.2d 312 (Colo. App. 1995). Rule applicable to deliberations prior to a verdict. The integrity of jury deliberations and assurance that jurors will be protected from coercion are no less important in the process of attempting to reach a verdict than they are in the process of polling a jury once the verdict is reached. To hold otherwise would disserve the purpose of section (b) and expose individual jurors to potential harassment or pressure that the rule was designed to avoid. People v. Riv- ers, 70 P.3d 531 (Colo. App. 2002). Court did not err in giving a special inter- rogatory to the jury before the jury an- nounced its decision. The special interrogatory was necessary to ensure the validity of the ver- dict on the felony murder charge and was not a post-verdict statement under section (b). People v. Doubleday, 2012 COA 141M, 369 P.3d 595, rev’d on other grounds, 2016 CO 3, 364 P.3d 193. Applied in T.S. v. G.G., 679 P.2d 118 (Colo. App. 1984); People v. Cornett, 685 P.2d 224 (Colo. App. 1984); People v. Mollaun, 194 P.3d 411 (Colo. App. 2008).