Juror Testimony and Selection: Warger v. Shauers

In October, the Supreme Court heard the case Warger v. Shauers. Simply put, the case dealt with the privacy of juror testimony and dishonesty during jury selection.

Case Background

In South Dakota in 2006, motorcyclist Gregory P. Warger collided with a truck, lost part of his leg, and sued the truck driver. He lost in court, but after the trial, a juror, Stacey Titus told Warger’s lawyer that the forewoman of the jury, Regina Whipple, had made her decision based on her family’s experiences, specifically her daughter’s responsibility for a fatal accident. She said that if her daughter was sued, her life would have been ruined. Warger sought a new trial based on Titus’s testimony but lower courts refused to hear the case, based on a long line of precedents and a rule of evidence that severely limits the type of evidence allowed in judicial proceedings (e.g. NOT evidence that clues people into the jury’s deliberation process). Warger appealed and appealed and appealed until…circuit split! and the Supreme Court agreed to hear the case.

There might be a problem with the facts of the case. The court record doesn’t contain Ms. Whipple’s account of the events. She said in an interview that she had never tried to use her daughter’s car accident as testimony in deliberation because her daughter had never been in a car accident.


The Supreme Court has long refused to examine juries’ deliberations. In the 1984 case McDonough v. Greenwood, the Court decided that verdicts could be challenged because of inaccurate answers given during juror selection only if the juror failed to honestly answer a question and that honest answer would be a sufficient cause for a challenge.

In the 1987 case Tanner v. United States, the Court turned a blind eye to a jury that had been consuming copious amounts of alcohol, marijuana, and cocaine during deliberation. Former Justice Sandra Day O’Connor, writing for the majority, concluded that the costs of examining jury deliberation far outweighed the costs. For instance, if jurors knew their deliberations could be analyzed afterward, they might not be as candid, a necessity in juridical proceedings. They also might be discouraged to take unpopular positions. Former jurors might be harassed. And it could undermine the integrity of juries, the sixth amendment, by eliminating juries’ finality.

Additionally, Congress passed the Federal Rules of Evidence in order to prevent testimony about deliberation from jurors. Article VI, Rule 606 says that “a juror may not testify about any statement made or incident that occurred during the jury’s deliberations” under an inquiry into the validity of the verdict, with a few exceptions, one of which is whether “(B) an outside influence was improperly brought to bear on any juror.”

Most of the jury in 12 Angry Men (1957)

Lying during jury selection is possibly a violation of the sixth amendment right to an impartial jury. But this is not to say that receiving an invalid verdict is the same as being heard by a partial jury. One can happen without the other. The line is not so clear.

Lying during jury selection is also a fairly common problem, or at least it’s not unheard of. For instance, racist jurors will often hide their racial prejudices during selection, promising to be fair but, of course, failing to fulfill that promise. Justice Samuel Alito considered a case of this sort in 2003 on an appeals court. Though the case didn’t require looking into jury deliberations to decide, Alito seemed unhappy with the prospect.


Warger claims that receiving an invalid verdict is not the same as being heard by a partial jury; in fact he is not objecting to how the jury came to their conclusion but rather who was on the jury. Warger also claims that Californian state and federal courts have allowed similar challenges – based on accusations that jurors had been dishonest during selection.

Warger’s case is pretty small in scope and ambition. If the Supreme Court rules in his favor, he doesn’t automatically get a new trial but rather he gets to use juror testimony to try to get a new trial. This is because Titus’s testimony isn’t very indicative of much. Warger, represented by Kannon K. Shanmugam, is arguing that the validity of the verdict is not being challenged; rather, at issue is the composition of the jury. So the question asked in the trial is whether the right to an impartial jury is outweighed by the secrecy of jury deliberation.

In oral argumentation, it became increasingly clear that the justices were not ready to look into the content of jury deliberation which would be necessary in the juror’s claim that the forewoman had exhibited some prejudice. Justice Ruth Bader Ginsburg made clear that that sort of foray was prohibited by the Federal Rules of Evidence. Justice Elena Kagan criticized Warger’s thin-slicing. A verdict can be invalid because of what happens in the jury room, and also because of the jury itself.

Justice Alito was worried about “litigation gamesmanship,” in which lawyers ask particularly tricky or odd questions to jury candidates so they can later seek new trials based on what was said during deliberation. Shanmugam responded that in the states that allowed inquiries, like California, these problems did not arise.

The respondent’s lawyer, Sheila L. Birnbaum, was only asked a few questions, including a series by Justices Alito and Elena Kagan about the possibility for exceptions for juror dishonesty about racial bias, an argument made by Warger’s lawyer. Birnbaum said that should be left to Congress, who wrote the original Federal Rules of Evidence. Justice Antonin Scalia warned that the Court should not start making exceptions. As an aside, it’s not so clear that Congress is responsible. While the original Federal Rules of Evidence did say that Congress was in charge of changing rules, more recent adjustments to the Federal Rules of Civil Procedure as well as the Federal Rules of Criminal Procedure, both of which would in effect change the Federal Rules of Evidence, have stated that changes should originate with the Court and merely be approved by Congress, according to Florida International University Law Professor Howard Wasserman at PrawfsBlawg.

While Shanmugam invoked the McDonough case, it became exceptionally clear that that case did not involve juror testimony about what happened during deliberations.

There was an incredible difference in the amount of questions asked of each side. While Shanmugam was asked a normal amount of questions (he was asked 32 questions), Birnbaum and Sarah E. Harrington, a government lawyer who sided with Birnbaum, were asked very few questions (14 for Birnbaum and an incredibly rare zero for Harrington). This imbalance is a very good indication of a winner (the side with fewer questions asked often emerges victorious).


The Court predictably decided 9-0 against Warger; in other words, it is not okay to use juror testimony about events during deliberation. The decision, written by Justice Sonia Sotomayor, states that the Federal Rules of Evidence would apply to any investigation of sorts in which the jury’s verdict might be invalidated, which includes efforts to prove a juror lied during jury selection.

Sotomayor carved out an exception for jurors with “extraneous prejudicial information,” which wouldn’t apply in this circumstance. Sotomayor used Tanner as precedent. In that decision, the Supreme Court had cited a few other cases in which they ruled insanity, inability to read English, and hearing troubles as all invalid reasons to use juror testimony.

Sotomayor also wrote there were alternate ways to prevent lying individuals from serving in juries. Parties can bring forward evidence of prejudice before a verdict is rendered. Nonjuror evidence can also be used after the verdict is rendered.

Sotomayor also addressed the racism question by identifying certain instances of juror prejudice that may abridge the defendant’s right to a fair jury. In those cases, the court can identify if there ought to be more safeguards to protect the integrity of the process.

Extra Reading

Oral argument is here.

Decision is here.

Adam Liptak describes the case in the New York Times on September 15, 2014.

Adam Liptak describes oral argumentation in the New York Times on October 8, 2014.

Roger C. Park describes oral argumentation at SCOTUS Blog on October 9, 2014.

Adam Liptak describes the decision in the New York Times on December 9, 2014.

Roger C. Park describes the decision at SCOTUS Blog on December 10, 2014.

Richard Re comments on the decision at his blog on December 10, 2014.


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