The purpose of the trial is to seek the truth of an event. “What happened?” Used to prove this event is evidence. However, the course of evidence is focused on how evidence at trial is actually limited. The judge acts as the gatekeeper of what gets in and what does not. See FRE 611.

Why is the evidence limited? For several reasons, some obvious and others not so much. The obvious reason is that the trial does not need repetitive information that would extend the trial unnecessarily. However, the ironic reason is that we systematically mistrust juries. We limit evidence so that the jury will not be either confused or misled (believing that the jury can be easily confused or misled). The ironic part of this statement is that, as soon as there is a jury verdict, we hold fast to that decision and zealously defend the private reasoning of the jury. See the following cases (Tanner outlining the rule and Warger carving out an exception).

Evidence works with observations and inferences. Observations can only approach certainty (some eyewitness accounts can be misleading). Most evidence focuses on inferences. You are presented with material that leads the jury to believe that that the person was more or less probable to have done something.

FRE 606

Tanner v. United States

483 U.S. 107 (1987).

Tanner lost, and appealed.


Can jury testimony be heard regarding the potential intoxication of jury members during the trial and deliberations?


Rule 606(b) denotes the finality of a case, and limits jury testimony except for when the testimony expounds on an outside influence on the jury. Otherwise, all testimony must come from court personal observing the public actions of the jury.


The influence of alcohol on a jury is an internal influence, not outside and thus jury testimony on that influence is not admissible. Affirmed.


After Tanner was convicted, a jury member approached Tanner’s attorney and said that several members of the jury was intoxicated during the trial, causing long naps. As a result, the attorney sought a continuance on the sentencing, a hearing to discuss the statement, and leave to interview other jury members.

During the trial, the attentiveness of the jury was questioned only once. Without more, the trial court did not grant leave to interview other witnesses and did not grant a new trial.

While waiting for an appeal, another jury member approached Tanner and informed him of additional improper jury behavior. Despite the additional statement, the court of appeals affirmed the trial court’s ruling.


The purpose of a jury decision is to impart a finality of the decision which should not be questioned expect for in extremely rare circumstances. These circumstances should be when the jury member is influenced by outside forces. An example of an outside force is a jury member seeking employment with the court. Inside influences include mental capacity, or (in this case), alcohol consumption. As such, testimony about alcohol consumption coming from a jury member cannot be used to impeach a jury decision. Instead, that testimony would need to come from personnel outside of the jury. Additionally, had the jury member come forth before the decision, that testimony could be used.

The dissent agrees with the reasoning but disagrees on the timing. Rule 606(b) discusses any influence on jury deliberations. Therefore, testimony could be allowed by a jury member to discuss improper conduct outside of the deliberation room (i.e. during the presentation of the trial).

Additional Notes

The majority stuck with their ruling for four main reasons:

  1. Jurors can deliberate without fear or oversight
  2. Protects jurors from harassment by lawyers and the public
  3. Ensures the finality of verdicts
  4. Maintains community trust in jury verdicts.

However, the court still wants to show that parties are given their constitutionally protected rights. They say that the rights are still protected because the system provides the court opportunities to sift out bad jurors early on through:

  • Voir Dire
  • Observing the jury during trial
  • Jurors reporting other jurors before the verdict
  • Non-jurors reporting jurors of misconduct.

But see State v. Sauls.

Warger v. Shauers, 547 U.S. 40 (2014).

Warger was involved in a motorcycle accident with Shauers which cost Warger his leg. So he sued and lost. Later, he discovered that the jury foreman stated that his daughter was involved in an accident and would have ruined her life if she had been sued. Because every jury member was asked if they could judge without bias at voir dire, an affirmative response was dishonest.

Warger sought a new trial and lost in both trial, on appeal, and towards the Supreme Court. The court reasoned that bias within voir dire would naturally lead into the jury deliberations. The experience of the juror was also an internal experience, not external.

However, the justices reserved the right to revisit the issue in the extreme case of racial bias and dishonesty within voir dire.

Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017).

After a verdict, a juror approached the attorney and reported another jury for making several racial statements about the defendant (being a hispanic). Both the trial and Colorado Supreme Court said that a juror testimony could not be admitted because of Tanner. However when this case was overturned at the Supreme Court level because this was a violation of a Sixth Amendment right to an impartial jury.

To qualify, racial animus needs to be shown that it was a significant factor that led to the outcome of the jury verdict. Off-hand comments do not qualify. The majority spent some time showing how this exception still upholds the policy considerations outlined in Tanner above.

However, the dissent argued that by allowing this one exception, other exceptions will arise on the same grounds based on other protected classes (sex, religion, etc.).

Additional Notes

Few remedies after verdict

Make sure the jury gets high-quality evidence

Screening is the basis of evidence law


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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