North Dakota Allows for Jury Impeachment the Verdict Was Arrived at by Chance

November 12, 2024

North Dakota Rule of Evidence 606(b) provides as follows:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s declaration or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror;

(D) a mistake was made in entering the verdict on the verdict form.

Much of North Dakota Rule of Evidence 606(b) is Similar to its federal counterpart. For example, in its recent opinion in Samaniego v. State, 2024 WL 4455218 (N.D. 2024), the Supreme Court of North Dakota ruled that jurors couldn’t impeach their verdict by testifying that they held the defendant’s decision not to testify against him.

But North Dakota Rule of Evidence 606(b)(2)(C) contains an exception not present in the federal rule, one that cuts against the case at the origin of the anti-jury impeachment rule.

As I wrote in Dismissed With Prejudice,

Prior to 1785, English courts “sometimes received” post-trial juror testimony and affidavits concerning juror misconduct, “though always with great caution.” In that year, English Chief Justice Lord Mansfield decided Vaise v. Delaval, where he was confronted with post-trial affidavits by jurors indicating that “the jury being divided in their opinion, had tossed up,” i.e., resolved the case by “flipping a coin or some other method of chance determination.” Mansfield deemed the affidavits inadmissible by applying the then-popular Latin maxim, nemo turpitudinem suam allegans audietur (a “witness shall not be heard to allege his own turpitude”). According to Mansfield, jurors were not competent to impeach their own verdicts, and thus themselves, because “a person testifying to his own wrongdoing was, by definition, an unreliable witness.” Vaise thus became the basis for “Mansfield’s Rule,” “a blanket ban on jurors testifying against their own verdict,” although, according to Mansfield, post-trial testimony concerning jury misconduct could be admissible if it came from another source, “such as from some person having seen the [deliberations] through a window, or by some such other means.”

Under North Dakota Rule of Evidence 606(b) and every state counterpart I had seen, jurors would be precluded from impeaching their verdict with evidence that they flipped a coin to reach a verdict after being deadlocked. But, as the language of North Dakota Rule of Evidence 606(b)(2)(C) makes clear, North Dakota’s counterpart does allow jury impeachment if “the verdict was arrived at by chance.” And so, jurors in North Dakota would be able to impeach their verdict if they reached it by flipping a coin, drawing straws, etc.

-CM