Noticeboard
| Date | 01 May 2006 |
| Published date | 01 May 2006 |
| DOI | 10.1350/ijep.2006.10.2.134 |
| Subject Matter | Noticeboard |
NOTICEBOARD
NOTICEBOARD
NOTICEBOARD
Extraneous material in the jury room—United States
Under Colorado law, the penalty for first degree murder is life imprisonment
unless the jury unanimously finds that it is convinced beyond reasonable doubt
applying ‘reasoned judgment’ and ‘a further moral assessment’ that the
defendant should be sentenced to death. There is much speculation about how a
jury decides whether to impose the death penalty (for example, S. Sundby, A Life
and Death Decision: A Jury Weighs the Death Penalty (Palgrave MacMillan: 2005)). On 3
October 2005, without comment, the United States Supreme Court (Colorado v
Harlan 2005 WL 2414331) declined a prosecution application that it review the
Colorado Supreme Court’s 3 to 2 majority decision in People vHarlan 109 P 3d 616
(2005) which upheld a lower court decision to vacate the death penalty sentence
imposed by a jury on a defendant convicted of first degree murder. At all stages of
the trial, the Harlan jury had been admonished to focus on the evidence in the case
and the law as explained by the court and ‘nothing else whatsoever’. The majority
found those warnings had been ignored.
Inquiry into the jury’s deliberations is prohibited by the Colorado Rules of
Evidence 606(b). However, jurors may be questioned whether extraneous preju-
dicial information was improperly brought to their attention. The jurors’
testimony eight years after the trial was confused and contradictory allowing only
a finding that one or more jurors had, without authorisation, taken a bible, a bible
index and handwritten notes concerning biblical passages into the jury room
during the penalty phase deliberations and that biblical passages commanding
the death penalty for murder and obedience to civil authorities had been shared
with at least one other juror. The majority held that these items were extraneous
materials and their introduction into the jury room improper. Colorado Rules of
Evidence 606(b) prevented the court from considering juror testimony about
the impact of this material on the deliberations or on a juror’s mental processes.
Instead, the majority then applied an objective test. Was there a reasonable possi-
bility that the information had influenced the verdict to the defendant’s
134 E & P
detriment? An affirmative answer was given which took into account:
1. the relationship of the extraneous information to critical issues;
2. the authoritativeness of the source consulted;
3. whether the search for extraneous information was juror-initiated;
4. whether the information was passed by one juror to another;
5. timing;
6. whether the information was likely to influence the ‘typical [Colorado]
juror’.
The majority concluded that they could ‘no longer say that Harlan’s death
sentence was not influenced by passion, prejudice or some other arbitrary factor’.
No disapproval was expressed about jurors studying the Bible in their hotel rooms
overnight. It was the presence of the ‘the written word’ in the jury room to which
exception was taken.
We do not hold that an individual juror may not rely on and discuss
with the other jurors during deliberations his or her religious
upbringing, education, and beliefs in making the extremely difficult
‘reasoned judgment’ and ‘moral decision’ he or she is called upon to
make…Weholdonlythatitwasimproperforajurortobringthe
Bible into the jury room to share with other jurors the written
Leviticus and Romans texts during the deliberations; the texts had
not been admitted into evidence or allowed pursuant to the trial
court’s instructions. We expect jurors to bring their backgrounds
and beliefs to bear on their deliberations but to give ultimate consid-
eration only to the facts admitted and the law as instructed. (per
Hobbs J, at 42)
This passage implies that if a juror holding out against the death penalty had been
induced to change her vote by silently recalling Leviticus 24:20–21 and Romans
13:1, this would have been all right and, also, that the jurors could, Quaker-style,
have prayed together for insight. To an atheist, the latter might seem not far
removed from consulting a ouija board (as to which see RvYoung [1995] QB 324).
What if the biblical passages discussed had been recited aloud from memory?
What if a Muslim juror had swayed another Muslim juror by reciting memorised
passages from the Qur’an or Hindu jurors had discussed the Bhagavad Gita? How
would a Jewish defendant feel about this, if it was brought to his attention? In the
context of jury deliberations, it is doubtful whether there is a bright line between
‘extraneous information’ and ‘intrinsic knowledge and belief’.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 135
NOTICEBOARD
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