Supreme Court of Colorado Finds Juror Saying a Judge Told a Prior Jury That Their Verdict Needed to be Unanimous Not Grounds for Jury Impeachment

Similar to its federal counterpart, Colorado Rule of Evidence 606(b) states the following:

(b) Inquiry into validity of verdict or indictment. 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 his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

So, imagine that a jury is initially deadlocked during deliberations before a juror

mentioned a previous jury they [sic] she served on, in which the jury was told by the judge “I don’t want a hung jury, and I want you guys to stay as long as you need to become unanimous.” That juror stated that she was told in the previous trial by the judge that the jury must deliberate until a unanimous verdict was reached….The original juror who referenced her previous jury service, presented that information as the factual information about the law that the jury was required to reach a unanimous verdict.

Would this constitute extraneous prejudicial information, allowing for jury impeachment? According to the recent opinion of the Supreme Court of Colorado in Clark v. People, 2024 WL 3284574 (Colo. 2024), the answer is “no.”

In Clark, the facts were as stated above. In rejecting the defendant’s appeal, concluding as follows:

First, the juror’s statement was not “legal content.” The retelling of a prior jury experience, even the specific recollection of a judge’s alleged statement about jury deliberations, is not a “statement of law.” Second, the fact that the juror’s statement is based on prior experience and was not the result of independent investigation further compels us to find that the statement was not extraneous. After all, “[a]s a practical matter, it is impossible to select a jury free of preconceived notions about the legal system or to prevent discussion of such information in the jury room.”…

Third, even if we concluded that the juror’s statement was extraneous legal content, unlike in Niemand and Wiser, it was not relevant to the jury’s decision. The statement did not concern any definition or element of the crimes with which Clark had been charged. But even beyond that, the statement did not relate to any other matter the jury was charged with deciding. How long the jury was required to deliberate did not have anything to do with whether the prosecution had met its burden of proof.

Therefore, the trial court correctly determined that the statement described in Juror LL’s affidavit did not constitute “extraneous prejudicial information” under CRE 606(b).

-CM