Supreme Court of Montana Grapples With Jury Impeachment Issues in “Undue Influence” Case Where Juror Looked Up the Definition of “Undue” on His Phone

Similar to its federal counterpart, Montana Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

So, in a case involving a challenge to a will on the ground that it was the product of “undue influence,” would testimony about a juror looking up the definition of “undue” on their phone be admissible under Rule 606(b) and grounds for a new trial or hearing? That was the question addressed by the Supreme Court of Montana in its recent opinion in Matter of Estate of Burns, 540 P.3d 1029 (2023).

In addressing this issue, the court first held that

The fundamental claim [the decedent’s daughter] made in her objection to the probate of the 2016 will was that [her sister-in-law] exerted undue influence on [the decedent] at the end of his life. In Instruction No. 16, the District Court instructed the jury that “[u]ndue influence exists when a confidential relationship or a position of authority is used to take an unfair advantage of the testator’s weakness of mind, or to take a grossly oppressive and unfair advantage of the testator’s necessities or distress.” Despite this instruction, [a juror] consulted external sources when distinguishing between influence and undue influence. Just as in Allers, the jury’s use of external sources is a proper subject for a juror’s affidavit under Rule 606(b) and raises an inference of misconduct.

That said, the court found that this was not enough to grant relief, holding as follows:

In his affidavit, juror Wood explained that during deliberation he found a Google definition of the term “undue” as “unwarranted or inappropriate because excessive or disproportionate.” Though the language differs from the definition used in Instruction No. 16, the difference is not material like it was in Allers. The definitions of “oppressive” and “unfair,” used in the instructions given to the jury, and “excessive” and “disproportionate,” used in the definition found by Wood, all contain an element of one party possessing an inappropriately outsized power over another. See Black’s Law (Bryan A Garner ed., 11th ed. 2019) (defining oppressive as “[t]he act or an instance of unjustly exercising authority or power …”; unfair persuasion as “[a] type of undue influence in which a stronger party achieves a result by means that seriously impair the weaker party’s free and competent exercise of judgment;” excessive as “[t]he action of exceeding one’s authority or overstepping a prescribed limit …”; and disproportionate as “[h]aving too much or too little … in comparison with something else in size, amount, importance[.]”). These definitions show that, in the context of persuasion over another, the terms used in the court’s instruction and Wood’s research are not substantially different. Unlike in Allers, where the extraneous definition eliminated a crucial element from a legal claim, the definition found by Wood does not materially affect the instruction in a meaningful way….

Further, the evidence available does not demonstrate a likelihood that the jury’s verdict was influenced by juror Wood’s research. Four members of the jury attested that they either did not know of or did not rely on Wood’s extraneous research. The facts of this case are more analogous to those in Stebner. There we concluded that a juror’s research regarding the definition of the term“preponderance” did not require a new trial….We reasoned that because “no new information” came from the extraneous definition, and several jurors testified they did not rely on the extraneous material at all, the extraneous influence did not prejudice the appellant’s right to a fair trial….The presumption of misconduct raised by the evidence is sufficiently refuted in this case. Lindsay has not shown that her substantial rights were prejudiced by the jury’s use of extraneous research.

That said, the court did 

nonetheless reiterate a point we made in Stebner—the use of personal devices by jurors during deliberation is an emerging and increasing problem….We again encourage district courts across Montana to include in their cautionary instructions to all juries, both at the beginning and at the conclusion of trial, a firm prohibition against internet research during trial and deliberations.

-CM