Supreme Court of Nebraska Finds Juror’s Statements About Reputation of Victim’s Family During Deliberations Didn’t Allow For Jury Impeachment

Similar to its Federal Rule of Evidence 606(b), Nebraska Rule of Evidence 27-606(2) 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 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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes.

So, are a juror’s statements about the reputation of the victim’s family “extraneous prejudicial information” allowing for jury impeachment? According to the recent opinion of the Supreme Court of Nebraska in State v. Allen, 992 N.W.2d 712 (Neb. 2023), the answer is “no.”

In Allen, Keith Allen was accused of murdering the victim — Brett Torres — and claimed self-defense. After the defendant was convicted,

Two jurors noted that three fellow jurors had originally felt the case was one of self-defense, but that those jurors changed their opinions after discussing the law and facts with other jurors. One juror indicated that during a break when there were only two or three jurors in the room, another juror mentioned the Torres family.

Specifically,

In exhibit 300, a juror averred that “[t]he reputation of the Torres family came up during deliberations.” According *679 to the juror, “[e]veryone knew something about the Torres family” and “[its] reputation of being a mafia-type family was mentioned”; “it was stated that if this goes bad, meaning the outcome was not what the Torres family wanted, it may be bad for us (the jurors).”

The juror averred to having been, along with two other jurors, originally of the opinion that Allen acted in self-defense and eventually “the lone hold-out juror with this opinion.” “The other jurors were not threatening or derogatory,” but the averring juror felt “pressure to give up [that] honest opinion of not guilty,” because the other jurors “wanted to … go back to their lives and get the case over.”

In finding that this was not extraneous prejudicial information allowing for jury impeachment, the court held that

The shooting in the instant case took place, and the trial was held, in North Platte, Nebraska, a city of the first class having a population of more than 5,000 but fewer than 100,000 inhabitants. It was foreseeable that members of the community where Allen and Torres lived might have knowledge of the reputation of the Torres family. There is no allegation that this knowledge was deliberately concealed during voir dire. The proper time to have raised the issue of the potential impact of the jurors’ knowledge of the reputation of the Torres family was during voir dire. 

More fundamentally, the reputation of Torres’ surviving extended family was generalized knowledge available to a significant portion of the community that did not directly relate to the litigation. The reputation of the Torres family was not specific to the factual circumstances of the case. It was not relevant to whether Allen killed Torres with deliberate and premeditated malice.

And the jurors’ speculation, based on this community knowledge, that they might suffer some harm from the Torres family if Allen were not convicted, is not information from an external source at all. Such speculation originated within the jurors from their general body of experiences, prejudices, or improper motives, which we have explained are not extraneous influences. This speculative fear is similar to that presented in U.S. v. Krall. The Eighth Circuit Court of Appeals held in Krall that a juror’s fear the Internal Revenue Service might retaliate if the juror did not convict the defendant of filing false tax returns went to the juror’s own mental process and subjective prejudices or improper motives and was not external information. Such speculative fear is distinct from evidence that an outside threat was actually brought to bear upon a juror.

-CM