26 October 2015

Calling a Juror Back to Testify About the Verdict

Can you call jurors back to testify about the way a decision was made or about how they didn't really agree, but they acquiesced because of pressure from other jurors?

No (at least not in Virginia), unless the juror is going to testify about an influence from outside the evidence provided in court.

Research that I did on this point a couple weeks back:
A. Lord Mansfield's Rule (Common Law Rule): 

 No inquiry allowed as to jury deliberations.

Vaise -v- Delaval, 1 T.R. 11, 99 Eng. Rep. 944 (K.B. 1785):  The court refused to receive affidavits from two jurors indicating that they had decided on their verdict by tossing a coin to resolve the issue. The court cannot receive an affidavit from a juror as to the nature of the juror’s deliberations.

B. Previous Common Law Rule (no longer in effect since 1785):

Allowed as to (1) misbehavior or (2) partiality.

 Norman v. Benmont Willes, 484, 125 Eng. Rep. 1281 (C.P 1744):  “In cases of this sort where the objection could not appear of record, we always admitted of affidavits-as in respect to a misbehavior of any of the jury, or any declaration made by any of them, either before or after the verdict to show that a jury man was partial."

B. Virginia Rule:

Steptoe v. Flood's Adm'r, 72 Va. 323 (1879):  It is certainly a general rule that affidavits of jurors to impeach their verdict should be rejected, first, because they would tend to defeat their own solemn acts under oath; second, because their admission would open a door to tamper with jurymen after they have given their verdict; and third, because they would be the means, in the hands of a dissatisfied juror, to destroy a verdict at any time after he had assented to it. 

Clark v. Commonwealth, 135 Va. 490 (1923):  [I]f each juror gave his assent to this verdict, the accused had no right to inquire how or why he arrived at it. The deliberations of the jury and the motives which actuate them in arriving at a verdict are secret and usually even jurors themselves will not be allowed to impeach their verdict by testimony as to secret motives which controlled them, or misunderstanding instructions of the court, the effects of the evidence, the measure of their verdict and the like.

Federal Deposit Ins. Corp. v. Mapp's Ex'r, 184 Va. 970 (1946):  The testimony of jurors concerning their deliberations and proceedings is not admissible. It is not competent for a juror to testify what did or did not influence him.

Fuller v. Commonwealth, 190 Va. 19 (1949):  [A]fter the discharge of the jury a juror will not be heard to impeach the verdict to which he has agreed by saying that he misunderstood the instructions of the court.

Mir Aimal Kasi v. Commonwealth, 256 Va. 407 (1998):  Virginia has been more careful than most states to protect the inviolability and secrecy of jury deliberations, adhering to the general rule that the testimony of jurors should not be received to impeach their verdict, especially on the ground of their own misconduct. Generally, we have limited findings of prejudicial juror misconduct to activities of jurors that occur outside the jury room.

C. Exceptions to Virginia Rule

(1) Externally Acquired Evidence:

Evans-Smith v. Commonwealth, 5 Va. App. 188 (1987)(Juror consulted an almanac): Generally, the testimony of jurors ought not to be received to impeach their verdict, especially on the ground of their own misconduct. . . . An exception to the general rule limiting post-verdict examination of jurors is recognized when it appears that matters not in evidence may have come to the attention of one or more jurors so as to violate the defendant's constitutional right to be confronted with the witnesses against him.

See also: Harris v. Commonwealth, 13 Va. App. 47 (1991)(Juror, a prison guard, “testified” to fellow jurors about the effects of parole on a sentence from a position of knowledge and authority)

(2) Discussing the Case With a Non-Juror

Caterpillar Tractor Co. v. Hulvey, 233 Va. 77 (1987):  Generally, we have limited findings of prejudicial juror misconduct to activities of jurors that occur outside the jury room. For example, the rule has been applied to expressions of opinion made by a juror to third persons during trial proceedings. In most cases, misconduct outside the jury room has prejudicially affected the jury's deliberation of the case by injecting facts connected with the case which had not been admitted in evidence. For example, the rule has been applied to an improper jury view and to unauthorized private conversations between jurors and third persons. 

See alsoJenkins v. Commonwealth, 244 Va. 445 (1992)(adopting same rule in criminal cases)

15 October 2015

When Can the Attorney General Prosecute?

Prosecutor:  "No, Mrs. Smith, we will not be prosecuting your dead uncle because he promised he would leave you the house in his will and he didn't."

Mrs. Smith:  "But you could prosecute Bobby-Jean. She's the one who's got his estate."

Prosecutor:  "She didn't do any crime. You need to talk to a private attorney about this."

Mrs. Smith:  "I ain't got the money to do that. You better prosecute or I'll go over your head to the Attorney General!"

I would wager that every person who works in a Virginia Commonwealth Attorneys office has heard this threat at least five or six times. The thing is, the Attorney General mainly handles appeals. He has very limited prosecutorial abilities in a circuit court. I don't answer to him; I answer to that guy at the other end of the hall from my office. And the reason I'm dealing with Mrs. Smith is that the guy at the end of the hall grew up around here and knows she's coocoo for coco puffs. He's talked to her 26 times already about this and is hoping that my reasoning might break through the maginot line of Mrs. Smith's mind where his has not.

Anyway, the one good thing the conversation has done is to spark my interest in what exactly the Attorney General's criminal prosecution jurisdiction is. So, I sat down and tried to figure it out. There's always the possibility that I missed some section hidden in the UCC somewhere, but I think this covers the vast majority of prosecutorial powers which can be exercised by the Attorney General.

Boundaries of the Attorney General's Prosecutorial Powers in Circuit Court Criminal Trials (mainly found in Virginia Code section 2.2-511):

1) Apparently none if asked by the Governor to handle a particular case.

2) Without a request from the governor and without permission of the local prosecutor:

(a) Violations of the Alcoholic Beverage Control Act (§ 4.1-100 et seq.),
(b) Violation of laws relating to elections and the electoral process as provided in § 24.2-104,
(c) Violation of laws relating to motor vehicles and their operation,
(d) The handling of funds by a state bureau, institution, commission or department,
(e) The theft of state property,
(f) Violation of the criminal laws involving child pornography and sexually explicit visual material involving children,
(g) Unauthorized practice of law,
(h) Violations of § 3.2-4212 [cigarette taxing provisions] or 58.1-1008.2 [false report by tobacco company].
(i) Per 18.2-43, assist in all endeavors and prosecutions against those participating in a lynching.
(j) Per 18.2-498.5, violations of the Virginia Governmental Frauds Act.
(k) Per 19.2-9, may appear with the Commonwealth Attorney when a criminal case is removed to federal court.

3) With the permission of the local prosecutor:

(a) Violations of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.),
(b) Violations of the Air Pollution Control Law (§ 10.1-1300 et seq.),
(c) Violations of the Virginia Waste Management Act (§ 10.1-1400 et seq.),
(d) Violations of the State Water Control Law (§ 62.1-44.2 et seq.),
(e) Violations of Chapters 2 [Principals and Accessories] (§ 18.2-18 et seq.), 3 [Incohoate Offenses] (§ 18.2-22 et seq.), and 10 [Crimes Against the Administration of Justice, i.e. Obstruction] (§ 18.2-434 et seq.) of Title 18.2, if such crimes relate to violations of law listed in (b), (c), and (d) supra,
(f) Criminal violations by Medicaid providers or their employees in the course of doing business, or violations of Chapter 13 [Racketeering] (§ 18.2-512 et seq.) of Title 18.2, in which cases the Attorney General may leave the prosecution to the local attorney for the Commonwealth, or he may institute proceedings by information, presentment or indictment, as appropriate, and conduct the same,
(g) Violations of Article 9 [Money Laundering] (§ 18.2-246.1 et seq.) of Chapter 6 of Title 18.2,
(h) Assisting in the prosecution of violations of §§ 18.2-186.3 [Identity Theft] and 18.2-186.4, [Publishing Another's Information to Harass],
(i) Assisting in the prosecution of violations of § 18.2-46.2 [Criminal Street Gang Participation], 18.2-46.3 [Criminal Street Gang Recruitment], or 18.2-46.5 [Committing Terrorist Act] when such violations are committed on the grounds of a state correctional facility, and
(j) Assisting in the prosecution of violations of Article 10 [Cigarette Sales Laws] (§ 18.2-246.6 et seq.) of Chapter 6 of Title 18.2.

4) Multi-jurisdictional Grand Jury – Per 19.2-215.10, if requested by applicants or special counsel, may participate as special counsel to the grand jury and in any prosecution arising from the grand jury.

5) I would posit that if the Attorney General wanted to donate the time of an attorney in a case wherein there is no statutory authorization then the assistant attorney general can work as a private prosecutor. I have no statutory or case law to support this, but there is a solid argument in favor of this position. Article V section 15 of the Virginia Constitution creates the Attorney General and states "He shall perform such duties . . . as may be prescribed by law."  It does not state that he shall perform his duties as prescribed by statute or by the General Assembly; it says "law." Virginia recognizes common law and the common law has long allowed private prosecutors with the acquiescence of the local government prosecutor.  It would just have to be done according to the rules for private prosecutors.

14 October 2015

Private Prosecutors

 Rules for a private prosecutor as laid out in Riner v. Commonwealth, 268 Va. 296 (2004):
1. He may not initiate a prosecution.
2. He may not appear before the grand jury.
3. He may appear only by leave of the trial court.
4. He may participate only with the express consent of the public prosecutor.
5. He may make a closing jury argument only in the court's discretion.
6. He may take no part in a decision to engage in plea bargaining.
7. He may take no part in deciding the terms of a plea bargain.
8. He may not make the decision to accept a plea of guilty to a lesser crime.
9. He may not make the decision to enter a nolle prosequi.
10. Automatic disqualification: A private prosecutor who has a civil interest in the case so infects the prosecution with the possibility that private vengeance has been substituted for impartial application of the criminal law, that prejudice to the defendant need not be shown. Allowing that private prosecutor violates the defendant's due process rights under Article I, §11 of the Constitution of Virginia.
11. Work Allowed to Do: (a) There is no arbitrary limitation as to the proportion of work which may be done by a private prosecutor.  (b) Limiting private prosecutors to innocuous witnesses and evidentiary matters would effectively abrogate the common-law principle that still permits their appointment.
12. ULTIMATE RULE: The public prosecutor must remain in continuous control of the case.

13 October 2015

Moments in the Life: Another Worthless, Fat F~ck with Glasses

I'm standing in the doorway to a room next to the hallway leading to general district court. I've been talking to Officer Smith about a case that is set for a preliminary hearing that morning, but he got a phone call about another case so I'm killing time looking at something on my phone.

Suddenly, I hear someone loudly proclaim in the hallway, "Look, it's another worthless, fat f~ck wearing glasses." Seeing as that comes disturbingly close to describing me, I turn to see who the proclaimer is and I see one twenty-something male and his woman walking past another twenty-something male who is standing next to the wall. The one standing next to the wall has glasses and is rotund. Proclaimer was obviously provoking Stander as the hall is tight and they both had to be within slugging distance when he spoke. Nevertheless, Stander just stays where he is and Proclaimer walks on until he is around a nearby corner.

I look over at Stander, who is still in the same spot looking as innocent as he can pretend to be. Then Proclaimer comes back around the corner at twice the speed he left, heading straight for Stander. Instinctively, I step into the middle of the hall facing Proclaimer so that he cannot get past me.  Proclaimer pulls up about ten feet short and looks confused. He doesn't know what to do. He wants to go back and get in Stander's face (at the very least), but there's this attorney standing in his way.

About the time Proclaimer gets confused, my brain kicks in and the first thing that goes through it is "What the BLEEP am I doing? If that kid decides he wants to go through me it's going to be painful." So, acting while Proclaimer is still confused, I call out loudly "Officer Smith, could you please come out into the hall?"

Officer Smith puts his phone away and comes out of the room. He sizes up the situation in about a half second and points to Proclaimer. "Leave now! Go where you are supposed to be."

Proclaimer: "He started it. He . . ."

Officer Smith: "Don't care. Move on."

Proclaimer: "But, it's not me . . ."

Officer Smith: "Move on or you will get charged with disturbing the peace."

At that point Proclaimer gives us all an angry look mixed with disdain mixed with the look of someone put upon and oppressed. Then he turns and walks away with his girlfriend.

About fifteen minutes later I had to go into another room where people wait to be arraigned to interview a witness who was waiting there. Officer Smith is with me. Proclaimer, waiting for his arraignment, is sitting there with his girlfriend. As we all leave, he starts back up with the officer.

"He started all of that. It wasn't me."

Officer: "Don't care. No fighting in the courthouse. Don't start up again."

Then Proclaimer turns to me. "You're over him. He needs to be nicer. You need to make him be nicer to people."

Yeah, cuz I'mgoing to yell at a twenty year veteran who stopped you from starting a fight in the hallway. Of course, saying that out loud will do nothing but feed the fire and I just keep walking moving toward the next problem (there's always a next problem).