Mass. R. Evid. 606
Mass. Guid. Evid. 606
Subsection (a). This subsection, which is taken verbatim from Fed. R. Evid. 606(a) and is nearly identical to Proposed Mass. R. Evid. 606(a), reflects Massachusetts practice.
Subsection (b). This subsection is taken from Proposed Mass. R. Evid. 606(b) and is derived from Commonwealth v. Tavares, 385 Mass. 140, 153-157, cert. denied, 457 U.S. 1137 (1982), and Commonwealth v. Fidler, 377 Mass. 192, 196-198 (1979). In Tavares, 385 Mass. at 155 n.25, the court stated that Proposed Mass. R. Evid. 606(b) "is the federal rule, and is in accord with the current Massachusetts rule admitting evidence of extraneous information and excluding evidence of mental processes" (quotation and citations omitted). See also Commonwealth v. Walker, 379 Mass. 297, 304 (1979); Woodward v. Leavitt, 107 Mass. 453, 466-467 (1871); Commonwealth v. DiBenedetto, 94 Mass. App. Ct. 682, 688(2019) (jurors' testimony that they misunderstood unanimity requirement during deliberations incompetent to set aside verdict).
The Doctrine of "Extraneous Matter." In Fidler, 377 Mass. at 200, the court held that "if specific facts not mentioned at trial concerning one of the parties or the matter in litigation were brought to the attention of the deliberating jury by a juror . . . such misconduct may be proved by juror testimony." The court cautioned, however, that "evidence concerning the subjective mental processes of jurors" is not admissible to impeach their verdict. Id. at 198. The challenge for courts is to make the distinction between "overt factors and matters resting in a juror's consciousness." Id. See Commonwealth v. Heang, 458 Mass. 827, 858 (2011) (pressure from other jurors during deliberation was not extraneous influence). In Commonwealth v. Guisti, 434 Mass. 245 (2001), the court offered further guidance by defining the concept of an "extraneous matter." "An extraneous matter is one that involves information not part of the evidence at trial and raises a serious question of possible prejudice" (citations and quotation omitted). Id. at 251. Some illustrations of this concept include "(1) unauthorized views of sites by jurors; (2) improper communications to the jurors by third persons; or (3) improper consideration of documents not in evidence" (citations omitted). Fidler , 377 Mass. at 197. See Fitzpatrick v. Allen, 410 Mass. 791 (1991) (home medical reference book brought into jury room); Markee v. Biasetti, 410 Mass. 785 (1991) (jurors took unauthorized view and made measurements at accident scene). See also Commonwealth v. Blanchard, 476 Mass. 1026, 1026-1027 (2017) (judge's binder containing information not in evidence at trial, inadvertently brought to jury room during deliberations, constitutes extraneous materials). But see Commonwealth v. Miller, 475 Mass. 212 (2016) (gun magazine not prejudicial).
Extraneous Matter Prior to Discharge. A judge who becomes aware before the jury is discharged that a juror may have been exposed to extraneous matter should ask whether the juror
"read, saw, heard, or otherwise became aware of the extraneous materials during the jury's deliberations. The judge should then inquire into the effect of the exposure on the particular juror, with the focus of the question or questions being whether the juror can deliberate without being influenced by the materials. In asking about the effect of the extraneous materials on the individual juror, the judge should caution the juror not to speculate about the effect on any other juror or on the jury as a whole."
Blanchard, 476 Mass. at 1027. Before questioning the juror, the judge should caution the juror to avoid revealing anything about the substance of the jury's deliberations, including where the jurors stand. Id. at 1027-1028.
Contacting Jurors Post-Discharge. A lawyer's ability to contact jurors after the verdict is regulated by Mass. R. Prof. C. 3.5(2015) and Commonwealth v. Moore, 474 Mass. 541 (2016). In Moore, the Supreme Judicial Court modified the prohibition against attorney-originated communications established by Commonwealth v. Fidler . Id. at 548. The court discussed the revisions to Mass. R. Prof. C. 3.5, effective July 1, 2015, noting that the prohibition against inquiring into the substance of jury deliberations remained intact. Attorneys may initiate contact with jurors, but only after giving opposing counsel five business days' notice. The notice must include "a description of the proposed manner of contact and the substance of any proposed inquiry to the jurors, and, where applicable, a copy of any letter or other form of written communication the attorney intends to send." Moore, 474 Mass. at 551-552. If a communication with a juror leads the lawyer to suspect that there was an extraneous influence on the jury, the lawyer may obtain an affidavit from the juror without prior court approval, but the affidavit "must focus on extraneous influences, and not the substance of the jury's deliberations or the individual or collective thought processes of the juror or the jury as a whole." Id.
Procedure for Determining Whether Jury Was Influenced by an "Extraneous Matter." A party alleging that a jury was exposed to a significant extraneous influence "bears the burden of demonstrating that the jury were in fact exposed to the extraneous matter. To meet this burden he may rely on juror testimony." Commonwealth v. Fidler, 377 Mass. 192, 201 (1979).
Further inquiry by the court is not required where "there has been no showing that specific facts not mentioned at trial concerning one of the parties or the matter in litigation were brought to the attention of the deliberating jury" (emphasis and quotations omitted). Commonwealth v. Drumgold, 423 Mass. 230, 261 (1996). See Commonwealth v. McQuade, 46 Mass. App. Ct. 827, 833(1999). "The question whether the party seeking an inquiry has made such a showing is properly addressed to the discretion of the trial judge." Commonwealth v. Dixon, 395 Mass. 149, 152 (1985). See Commonwealth v. Colon, 482 Mass. 162, 167-168 (2019) (no abuse of discretion where judge conducted extensive voir dire of remaining jurors and found them to be unafraid and impartial after dismissing two deliberating jurors who expressed fear of defendant, including one who raised gang-related concerns during deliberations despite no evidence of gangs presented at trial). There is always a danger that when questioned about the existence of an extraneous matter a juror will respond
"with an answer that inappropriately reveals aspects of the deliberations. Giving cautionary instructions to each juror at the outset of the inquiry and, if necessary, again during the inquiry will reduce the likelihood of answers that stray into revelation of the jury's thought process. The jurors can be instructed to respond about any information that was not mentioned during the trial (appropriate), but not to describe how the jurors used that information or the effect of that information on the thinking of any one or more jurors (inappropriate). Once any juror has established that extraneous information was mentioned, by whom, and whether anyone said anything else about the extraneous information (not what they thought about it or did with it), the inquiry of that juror is complete. As soon as the judge determines that the defendant has satisfied his burden of establishing the existence of an extraneous influence, the questioning of all jurors should cease."
Commonwealth v. Kincaid, 444 Mass. 381, 391-392 (2005).
A defendant seeking a new trial bears the burden of showing that the jury was exposed to extraneous material, at which point the burden shifts to the Commonwealth to prove beyond a reasonable doubt that the defendant was not prejudiced by the exposure. Fidler, 377 Mass. at 201. See Commonwealth v. Miller, 475 Mass. 212, 221-222 (2016) (Where the extraneous matter was "not attached to any crucial issue" in the case, and there was substantial evidence of the defendant's guilt, the trial judge properly refused to grant a new trial even though a juror had brought a gun magazine to the jury room.). The same burden-shifting approach applies in a civil case, except that the party opposing the new trial need only show that there is "no reasonable likelihood of prejudice" from the extraneous material. Fitzpatrick v. Allen, 410 Mass. 791, 796 (1991); Markee v. Biasetti, 410 Mass. 785, 788-789 (1991).
Ethnic or Racial Bias. When the defendant files an affidavit from one or more jurors stating that another juror made a statement "that reasonably demonstrates racial or ethnic bias" and the jury's credibility is at issue, the judge must first determine whether the defendant has proved by a preponderance of the evidence that the juror made the biased statement. Commonwealth v. McCowen, 458 Mass. 461, 494 (2010). Second, if the answer to the first question is "yes," the judge must determine whether the defendant has proved by a preponderance of the evidence
"that the juror who made the statements was actually biased because of the race or ethnicity of a defendant, victim, defense attorney, or witness. A juror is actually biased where her racial or ethnic prejudice, had it been revealed or detected at voir dire, would have required as a matter of law that the juror be excused from the panel for cause." (Citations omitted.)
Id. at 495. A juror's statement may establish such a strong inference of actual bias "that proof of the statement alone may suffice." Id. at 496. Nevertheless, a judge must typically consider the statement's content and the context in which it was made to decide if it shows the juror's actual racial or ethnic bias, or if it could be interpreted in a way that fails to establish bias. Id. A criminal defendant who has proven a juror's actual bias is entitled to a new trial without demonstrating that the jury's verdict was affected by the juror's bias. Id. Third, even if the defendant fails to prove that the juror was actually biased, if the answer to the first question is "yes," the judge must determine "whether the statements so infected the deliberative process with racially or ethnically charged language or stereotypes that it prejudiced the defendant's right to have his guilt decided by an impartial jury on the evidence admitted at trial" (citations omitted). Id. at 496-497. Even though racial or ethnic bias is not an extraneous matter, see Commonwealth v. Laguer, 410 Mass. 89, 97 (1991), this third question is subject to the same analysis used to evaluate extraneous influences on the jury. If the defendant meets the burden of establishing that the statement was made, "the burden then shifts to the Commonwealth to show beyond a reasonable doubt that the defendant was not prejudiced by the jury's exposure to these statements." McCowen, 458 Mass. at 497. In making this determination, the judge must not receive any evidence concerning the effect of the statement on the thought processes of the jurors, but instead must focus on its "probable effect" on a "hypothetical average jury." Id.
The procedure established by Commonwealth v. McCowen does not apply to questions of ethnic or racial bias that arise after the jury is sworn but prior to the verdict. Commonwealth v. Quiles, 488 Mass. 298, 314-317 (2021). In these circumstances, a judge must investigate the potential of racial, ethnic, or other improper bias in the jury room "without invading the jury's deliberative process." Commonwealth v. Ralph R. , 490 Mass. 770, 780, 784 (2022) (judge erred by not conducting further inquiry in response to foreperson's statement that there had been "discriminating comments" in jury room, where judge acknowledged he did not know what foreperson had meant before finding statement insincere). When confronted with a report of "potential discrimination" in the jury room, the judge "must first determine whether the report is credible such that further inquiry is required," resolving any uncertainty in favor of conducting a preliminary inquiry. Id. at 784. The judge has discretion to determine the "proper form and scope" of the preliminary inquiry and whether any further inquiry is warranted to assess whether the jury's impartiality has been affected. Id. If the judge decides not to conduct any inquiry because the report lacks credibility, the judge should explain the basis for that credibility determination on the record. Id. at 785. Upon a finding that racial or ethnic bias exists, the judge has the authority to dismiss for good cause jurors found to harbor bias. The judge must also be satisfied that the claimed bias will not affect the ability of the remaining jurors to render an impartial verdict. Quiles, 488 Mass. at 314-317. See also Commonwealth v. Tavares, 385 Mass. 140, 155-156, cert. denied, 457 U.S. 1137 (1982) (establishing procedure for investigating juror misconduct during trial while excluding evidence of mental processes).
Discharge of a Juror During Empanelment. Even prior to trial, a potential juror who may not be impartial due to the effect of an extraneous matter such as bias or prejudice may be excused by the court. See G. L. c. 234, § 28; G. L. c. 234A, § 39; Mass. R. Crim. P. 20(b)(2). If the jury has not been sworn, the judge has discretion to excuse a juror without a hearing or a showing of extreme hardship based on information that the juror may not be indifferent. See Commonwealth v. Gambora, 457 Mass. 715, 731-732 (2010) (juror dismissed based on report by court officer that she was observed in the hallway during a break speaking to persons who then joined a group which included members of the defendant's family); Commonwealth v. Duddie Ford Inc. , 409 Mass. 387, 392 (1991). "It is generally within the judge's discretion . . . to determine when there exists a substantial risk that extraneous issues would influence the jury such that an individual voir dire of potential jurors is warranted." Commonwealth v. Holloway, 44 Mass. App. Ct. 469, 472(1998).
Discharge of a Juror During Trial. In Commonwealth v. Jackson, 376 Mass. 790 (1978), the Supreme Judicial Court addressed the procedure for evaluating the effect of possibly prejudicial material on members of the jury and the proper judicial response:
"When material disseminated during trial is reliably brought to the judge's attention, he should determine whether the material goes beyond the record and raises a serious question of possible prejudice. A number of factors may be involved in making that determination, including the likelihood that the material reached one or more jurors. If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror's exposure to the material and its effects on the juror's ability to render an impartial verdict."
Id. at 800-801. The trial judge must determine the nature of the extraneous matter before exercising discretion as to whether to discharge a juror. See Id. (individualized questioning of juror appropriate given concerns of exposure to prejudicial media publicity during trial). See, e.g., Commonwealth v. Alicea, 464 Mass. 837, 848-849 (2013) (judge has "considerable discretion" to ensure that jurors remain impartial and indifferent; when jurors reported to court officer that one juror had made up his mind, judge was warranted in giving jury forceful instruction and appointing foreperson early to ensure compliance with instructions, rather than conducting voir dire); Commonwealth v. Stewart, 450 Mass. 25, 39 (2007) (trial judge acted properly in asking jury collectively whether anyone had seen anything while coming into or exiting courtroom based on court officer's report that door to lockup had been left open while defendant was inside cell); Commonwealth v. John, 442 Mass. 329, 339-340 (2004) (no error in declining to discharge juror who expressed personal fear due to nature of case); Commonwealth v. Maldonado, 429 Mass. 502, 506-507 (1999) (judge did not abuse her discretion in removing one juror who expressed fear for her personal safety as a result of evidence of defendant's association with a gang); Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 813-815(2018) (judge did not abuse his discretion in allowing a juror to remain empanelled following multiple colloquies with the juror to allay the juror's concerns about jury duty impacting his studies and to correct the juror's personal opinions and assumptions regarding the applicable law and the function of the jury generally). See also Commonwealth v. Francis, 432 Mass. 353, 369-370 (2000). Cf. Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 259(2002) (judge erred in accepting a juror's note about a matter of extraneous influence without making inquiry of the juror).
Sleeping Jurors. A judge who observes or receives a reliable report that a juror is asleep must intervene promptly. Commonwealth v. Ralph R., 490 Mass. 770, 777-779 (2022) (factors to consider in determining reliability of report include timing and specificity of report and presence or absence of corroboration). By contrast, "[w]here a judge has only tentative information that a juror may be sleeping, it is sufficient to note the report and monitor the situation." Commonwealth v. Alleyne, 474 Mass. 771, 778 (2016). See Commonwealth v. Vaughn, 471 Mass. 398, 413 (2015) ("report of a sleeping juror was not sufficiently reliable to warrant further action"). If a judge makes a "preliminary conclusion that information about a juror's inattention is reliable, the judge must take further steps to determine the appropriate intervention." Commonwealth v. McGhee , 470 Mass. 638, 644 (2015). Although a judge has "substantial discretion in this area," "[t]ypically, the next step is to conduct a voir dire of the potentially inattentive juror, in an attempt to investigate whether that juror 'remains capable of fulfilling his or her obligation to render a verdict based on all of the evidence.'" Id., quoting Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181(2009). The judge has discretion as to the nature of the intervention and is not required to conduct a voir dire in every complaint regarding jury attentiveness. Commonwealth v. Beneche, 458 Mass. 61, 78 (2010). Compare Commonwealth v. Ray, 467 Mass. 115, 134 (2014) (no error in declining to discharge juror observed sleeping at various points in the trial after judge conducted voir dire of juror and was satisfied that juror could fairly participate in deliberations), with McGhee, 470 Mass. at 642-646 (failure of trial judge to conduct further inquiry concerning report of sleeping juror necessitated new trial).
Discharge of a Deliberating Juror. The problems associated with the effect of an extraneous matter on the jury also may arise before the jury returns a verdict. General Laws c. 234, § 26B, provides that if, at any time after a case has been submitted to the jury and before the jury have agreed on a verdict, a juror "dies, or becomes ill, or is unable to perform his duty for any other good cause shown to the court," the judge may discharge the juror, substitute an alternate selected by lot, and permit the jury to renew their deliberations. See Mass. R. Crim. P. 20(d)(3). "[G]ood cause includes only reasons personal to a juror, that is, reasons unrelated to the issues of the case, the juror's views on the case, or his relationship with his fellow jurors" (quotations omitted). Commonwealth v. Francis, 432 Mass. 353, 368 (2000). See Commonwealth v. Williams, 486 Mass. 646, 658-659 (2021) (error to discharge deliberating juror where "juror's reluctance to begin deliberations anew was at least in part influenced by his relationship" and disagreement with other jurors); Commonwealth v. McCowen, 458 Mass. 461, 488-489 (2010) (after jury reported it was deadlocked, judge was warranted in removing deliberating juror based on a finding that a "palpable conflict" existed due to the arrest of the father of the juror's son, who was being prosecuted by the same district attorney's office that was prosecuting the case on trial). The judge must conduct a hearing before a juror is discharged, and may say, for example, "I am going to ask you a question. I cannot ask you, and you cannot tell me about your deliberations or relationship with the other jurors during deliberations. If you answer my question referencing either, I will have to interrupt you." Williams, 486 Mass. at 656. See Commonwealth v. Holley, 478 Mass. 508, 529-531 (2017) (judge did not err in dismissing juror who became ill during deliberations where "the judge telephoned the juror in the presence of counsel, questioned her, invited counsel to suggest further questions, and made specific findings of good cause" no error in judge rejecting "defense counsel's request that he ask the juror about her ability to deliberate, as that question came close to touching upon the content of the deliberations"). Great care must be taken in such cases that a dissenting juror is not allowed to avoid the responsibility of jury service. See, e.g., Commonwealth v. Garcia, 84 Mass. App. Ct. 760, 770(2014) (judge improperly dismissed deliberating juror without first determining a valid reason, personal to the juror and unrelated to juror's views about the case or relations with other jurors); Commonwealth v. Rodriguez, 63 Mass. App. Ct. 660, 675-676(2005) (holding that discharge of deliberating juror was error).
Required Instruction After Discharge of Deliberating Juror. After dismissing a deliberating juror, the judge "must instruct the jury to disregard all prior deliberations and begin its deliberations again" (quotation omitted). Commonwealth v. Connor, 392 Mass. 838, 844 n.2 (1984). See Holley, 478 Mass. at 530-531 (holding it was sufficient to instruct jury to begin their deliberations "anew with a new jury of twelve people" and "not to simply pick up where [they] left off" where juror's illness was "clearly a personal problem"); Commonwealth v. Zimmerman, 441 Mass. 146, 151 (2004) ("A judge is not required in every case to adhere to the precise language we used in [ Connor ].").