Rule 606  Competency of juror as witness. 
(a)  At the trial.  A member of the jury may not testify as a witness before
that jury in the trial of the case in which the member is sitting as a juror.



(b)  Inquiry into validity of verdict or
indictment.  Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify concerning the effect of anything upon the juror's or any
other juror's mind or emotions as influencing the juror to assent to or dissent
from the verdict or indictment or concerning the juror's mental processes in
connection therewith.  Nor may the juror's affidavit or evidence of any
statement by the juror indicating an effect of this kind be received. [L 1980,
c 164, pt of §1; gen ch 1985]



 



RULE 606 COMMENTARY



 



  Subsection (a) of this rule is similar to Fed. R. Evid.
606(a) except that the second sentence of the federal rule, "If he is
called so to testify, the opposing party shall be afforded an opportunity to
object out of the presence of the jury," is omitted as unnecessary. 
Subsection (b) is taken verbatim from the 1971 draft of Rule 606(b) of the
Proposed Rules of Evidence for United States Courts and Magistrates, 51 F.R.D.
315, 387 (1971).



  Subsection (a):  Despite the common law tradition that a
juror was generally competent to testify as a witness, see McCormick §68, such
a rule is inconsistent with the juror's role as an impartial trier of fact.  It
offers dangers analogous to those discussed in the commentary to Rule 605
supra.



  Subsection (b):  Under traditional English common law, the
general competency of a juror to testify as a witness had one limitation:  he
was barred from giving testimony to impeach his own verdict.  See McCormick
§68; Vaise v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944 (K.B. 1785).  "The
values sought to be promoted," according to the Advisory Committee's Note
to the original proposal for federal Rule 606(b), "include freedom of
deliberation, stability and finality of verdicts, and protection of jurors
against annoyance and embarrassment."  However, the blanket prohibition
also bars testimony relevant to misconduct, irregularities, and improper
influences external to the process of deliberation.  The intent of this
subsection is to strike a proper balance by excluding testimony relating to the
internal deliberative process and allowing testimony about objective misconduct
and irregularities.  No attempt is made to specify substantive grounds for
setting aside verdicts.



  The Advisory Committee's Note to the original federal
proposal, upon which subsection (b) is modeled, said:  "The trend has been
to draw the dividing line between testimony as to mental processes, on the one
hand, and as to the existence of conditions or occurrences of events calculated
improperly to influence the verdict, on the other hand, without regard to
whether the happening is within or without the jury room....  The jurors are
the persons who know what really happened.  Allowing them to testify as to
matters other than their own reactions involves no particular hazard to the
values sought to be protected.  The rule is based upon this conclusion." 
For example, under this rule jurors would be competent to testify to the
consumption of alcoholic beverages by deliberating jurors, a matter which under
some circumstances may be cause for setting aside a verdict, see Kealoha v.
Tanaka, 45 H. 457, 370 P.2d 468 (1962).  A similar rule is found in Cal. Evid.
Code §1150.



 



Case Notes



 



  Juror competent to testify about objective juror misconduct. 
7 H. App. 1, 739 P.2d 251.



  Jury foreperson's misrecollection of evidence barred.  7 H.
App. 424, 774 P.2d 246.



  Trial court did not err when it concluded that subsection (b)
precluded the consideration of juror number 11's post-verdict affidavit which
purported to demonstrate juror number 7's incompetence to participate in
deliberations and render a verdict where the affidavit proffered by juror 11
fell far short of the "strong evidence" of incompetence necessary to
merit a further inquiry.  120 H. 94 (App.), 201 P.3d 607.