ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE
PO Box 41213
Phoenix, AZ 85080-1213
TEL: (480) 812-1700
FAX: (480) 812-1736
SAMBO DUL, SB# 030313 [email protected]
AMY KALMAN, SB#024978 [email protected]
ARIZONA CAPITAL REPRESENTATION PROJECT
101 East Pennington Street, Suite 201
Tucson, AZ 85701
TEL: (520) 229-8550
NATMAN SCHAYE, SB# 07095 [email protected]
Arizona Attorneys for Criminal Justice (“AACJ”) and the Arizona Capital Representation Project (“ACRP”) wish to draw the Court’s attention to supplemental authority lending further support to AACJ and ACRP’s Comment in opposition to the Petition to Adopt Proposed Rule 23.5.
On August 5, 2014, the Arizona Court of Appeals, Division 1, issued its decision in American Power Products, Inc. v. CSK Auto, Inc., 1 CA-CV 12-0855, 2014 WL 3877037, 692 Ariz. Adv. Rep. 22, (Ariz. Ct. App. Aug. 5, 2014). In that case, plaintiff sued defendant over the sale of electric scooters and sought $5 million in damages. The trial lasted 12 days and involved thousands of pages of exhibits and 24 witnesses. Following trial, the jury deliberated for an hour or two and then returned a 6-2 verdict for plaintiff in the amount of $10,733. Plaintiff’s investigator interviewed several jurors post-verdict and obtained two affidavits stating that the deliberations were not fair and that most of the jurors refused to consider the evidence and just wanted to go home. One affidavit further stated that, during deliberations, the bailiff entered the room and was asked how long deliberations usually last, to which the bailiff responded “an hour or two should be plenty.” The trial court denied plaintiff’s request for a new trial and an evidentiary hearing regarding whether jury deliberations were improperly curtailed as a result of the bailiff’s comment. In remanding the case, the Court of Appeals acknowledged that Arizona Rule of Evidence 606(b)(1) prohibits impeachment of a jury verdict with jurors’ affidavits concerning deliberations. However, Rule 606(b)(2) permits consideration of juror testimony to determine whether “extraneous prejudicial information was improperly brought to the jury’s attention.” Thus, though the content of the affidavits concerning the deliberations themselves was inadmissible, the bailiff’s comment regarding the usual length of deliberation was admissible on the issue of prejudice. The Court of Appeals explained that a statement from a bailiff regarding how long the jury should deliberate relates to a substantive procedural issue and violates Arizona Rule of Civil Procedure 39(e)’s limitations on the communications a bailiff may have with jurors. Accordingly, the Court of Appeals remanded for the trial court to determine whether an evidentiary hearing would be feasible considering the passage of time since trial and to determine whether plaintiff suffered prejudice from the improper ex parte communication, warranting a new trial.
Though this example of juror misconduct occurred in the context of a civil, rather than criminal, matter, such misconduct may also arise in criminal cases, and would similarly not be discovered absent a party’s post-verdict investigation and communication with willing jurors. In American Power Products, the misconduct would not have been discovered had plaintiff not engaged investigators to interview willing jurors post-verdict. If Proposed Rule 23.5 were to be adopted, criminal defendants and their counsel would be barred from engaging in the very investigation performed by plaintiff in American Power Products that lead to discovery of misconduct necessitating an evidentiary hearing and, potentially, a new trial. As discussed in detail in AACJ and ACRP’s Comment, such a prohibition would both impede defense attorneys’ ability to thoroughly and competently represent their clients and prevent discovery and presentation of valid constitutional claims in violation of criminal defendants’ rights.