noting that ORCP 64 B(1) is divided into two subparts—the first part “inquires into any ‘[i]rregularity in the proceedings of the court, jury or adverse party’ ” and the second “asserts as grounds for a new trial ‘any order of the court, or abuse of discretion’ ” (quoting ORCP 64 B(1)
How later courts described this case
- noting that ORCP 64 B(1) is divided into two subparts—the first part “inquires into any ‘[i]rregularity in the proceedings of the court, jury or adverse party’ ” and the second “asserts as grounds for a new trial ‘any order of the court, or abuse of discretion’ ” (quoting ORCP 64 B(1)
- “[W]e hold that juror affidavits or testimony seeking to impeach a jury’s verdict based upon allegations that the jurors misunderstood the effect of their verdict are inadmissible[.]”
Written by the judges who cited it.
The opinion
JONES, J.,
concurring.
I concur completely with the majority opinion, but write separately only to call attention to the fact that the legislature, for some unknown reason, in the last moments of the 1981 legislative session deleted proposed OEC Rule 606(b), which was identical to its federal counterpart. FRE 606(b) reads:
“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 or to 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 concerning a matter about which he would be precluded from testifying be received for these purposes.”
The rule renders a juror incompetent to testify about juror deliberations except concerning 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. Had Rule 606(b) been enacted and applied, this case should never have arisen. The jurors were neither competent to testify nor to state to the court that they misunderstood the effect of their verdict.
I further question the procedure utilized in this case in “making the record.” From what I can ascertain from the audio record, two jurors, after “ex parte” communication with defense counsel, approached the bench immediately after the jury had been discharged and made statements to the court. *662 The statements were neither given under oath, nor given in the presence of the parties or plaintiffs counsel. Six days later all the jurors were summoned back to court, but once again they were not sworn. They simply made statements.
The proper procedure to follow in “making a record” of possible juror misconduct or for setting aside verdicts for irregularity is for the court to call all the lawyers, all the parties and all the jurors back into open court, to swear all the jurors, to record the proceedings and to allow counsel for both sides an opportunity to ask only questions which are permissible within the ambit of this decision or 606(b) if it is enacted.
As Professor Kirkpatrick cautions:
“It should be noted that contacting jurors after a trial to determine whether misconduct may have occurred is often prohibited by local court rule. See, e.g., Rule 2.02, Multnomah County Circuit Court Rules. See also DR 7-108(D), (E), (F) and (G) of the Code of Professional Responsibility; Opinion No. 142, Oregon State Bar Legal Ethics Opinions, PROFESSIONAL RESPONSIBILITY MANUAL (1981). In Niemela v. Collings, 267 Or 369 , 517 P2d 268 (1973), the court held that a juror’s affidavit taken in violation of local court rule will not be considered in ruling upon a motion for a new trial.”
Kirkpatrick, Oregon Evidence 223 (1982).
Lawyers should not engage in unsolicited ex parte interrogations of jurors after disappointing verdicts. If misconduct or irregularity is brought to counsel’s attention, the court should be notified, and the court should summon the jurors back to court and proceed as suggested.