Lead Opinion
The issue on this appeal is the effect of an unauthorized visit by a jury to the scene of the alleged crime. Defendants De Lucia and Montella were convicted, after a jury trial, of attempted burglary in the third degree and of possession of burglar’s instruments. The Appellate Division unanimously affirmed. By a closely divided court, we upheld the conviction, stating that ‘ It has long been familiar law that jurors may not impeach their own duly rendered verdict by statements or
. The United States Supreme Court denied certiorari. (De Lucia v. New York,
In reversing, the United States Supreme Court found that the bailiff had, in a sense, become a witness against the defendant in contravention of his right to “ be confronted with the witnesses against him (U. S. Const., 6th Arndt.) Referring to the bailiff’s comments as an “ outside influence ”, the court stated (pp. 364-365) that it has “followed the ‘ undeviating rule,-’ Shepherd v. Maxwell,
■ Prior to the decision in Parker v. Gladden, the defendants, De Lucia and Montella, brought a petition for a writ of habeas - corpus in the United States District Court for the Northern District of New York. The writ was dismissed. While the appeal was pending, Parker v. Gladden (supra) was decided. The United States Court of Appeals for the Second Circuit accordingly vacated the order of the District Court and dismissed the writ without. prejudice, in order to give the New •York courts an opportunity to reconsider the petitioners’ claims in light.of the. Supreme Court decision., (United States ex rel. De Lucia v. McMann,
..- We are .not unaware, nor was the Second Circuit, that there is a distinction between this case and Parker v. Gladden. In Parker, the Oregon court had not excluded the statements of the jurors, aá testimonially incompetent. Rather, it found that, despite this evidence of what the bailiff had said, the defendant had not been prejudiced.- Our New York case law holds that statements by jiiror's impeaching their own verdicts are inadmissible. (See, e.g., People v. Sprague,
The policy reason for the present rule is, of course, that we do not wish to encourage the posttrial harassing of jurors for statements which might render their verdicts questionable. With regard to juryroom deliberations, scarcely any verdict might remain unassailable, if such statements were admissible. Common experience indicates that at times articulate jurors may intimidate the inarticulate, the aggressive may unduly influence- the docile. Some jurors may “ throw in ” when deliberations have reached an impasse. Others may attempt to compromise. Permitting jurors to testify regarding such occurrences would create chaos.
On the other hand, a defendant has a right to a trial by a fair and impartial jury. The public policy considerations must at all times be weighed against the defendant’s fundamental rights.
We attempted to balance these opposing considerations in People v. Leonti (
Thus, where a patent injustice to, a defendant was present, we distinguished the case on a philosophical ground, although the prohibited result, the. impeachment of the verdict, remained. This was a recognition that the. rule against jurors’ impeachment of their verdicts should not operate in every case., Where, as in the case of statements regarding juryroom. deliberations, every verdict might be rendered suspect, and jurors might become subjected to continuous posttrial harassment, the public policy reasons for holding such statements inadmissible mus,t ordinarily override possible injustice t,o a defendant, for here our jury system itself is at stake.
Statements concerning outside influences on a jury, however, occurring less frequently and more susceptible to adequate proof, should be admissible to show that the defendant was prejudiced, for here the danger to our jury system is minimal compared with the more easily proven prejudice to the defendant..
In the instant case, it appears that several jurors not only went to the. scene, but actually re-enacted the alleged crime.
Tq use the reasoning of the Supreme Court in Parker v. Gladden (supra), these jurors became unsworn witnesses against the defendants in direct contravention of their right,, under the Sixth Amendment, “to be confronted with the witnesses ” against them.
Our re-evaluation of the common-law rule that jurors may not impeach their own verdicts reveals that in the case, of such inherently prejudicial “ outside influences ’’ on a jury as were here present, the violation of the defendants’ Sixth Amendment rights outweighs the policy reasons for the, rule,
“ Without destroying the rule where, it properly applies we should hold that it does not apply to a situation like this where the investigation is not as to what happened in the juryroom or why, but as to a fact (illegal view) which has always been considered to be a strong ground for setting aside a verdict ”. (People v. De Lucia and Montella, 15 N Y 2d 294, 297, dissenting opinion per Desmond, Ch. J.)
Since the District Attorney has never had an opportunity to examine the jurors regarding their statements, we remit this case to the trial court for a hearing in regard to the petitioner's’ allegations and, in the event the allegations of the petitioners are substantiated, the judgments of conviction should be vacated and a new trial ordered. ■
Notes
. In People V. Wilson (13 N Y 2d 277, 280) we held that' a defendant, sentenced as a multiple offender, could not attack predicate out-of-State felonies. We did not consider this a violation Of his fundamental constitutional rights. We noted, however, that “ If the refusal of our courts to- try out the constitutional validity of the out-of-State crimindl judgment amounted to á denial of defendant’s fundamental rights, we would have to find some other way of protecting those rights no matter what the procedural difficulties and burdens.” (Emphasis supplied.)
In this case, our refusal to allow" admission of the" jurors’ statements would, under Parker v. Gladden (supra), amount to a denial of defendants’ fundamental constitutional rights.
. See Note, 15 Buffalo L. Rev. 217.
Dissenting Opinion
(dissenting). The questions at issue are (1) whether the recent decision of this court in People v. De Lucia (15 N Y 2d 294) should be overruled out of hand as wrongly decided, and the minority view made to prevail as expressed in the dissenting opinion therein or, if not, then (2) whether that decision has been overruled on Federal constitutional grounds by the United States Supreme Court in Parker v. Gladden (
.The majority -opinion of this court on reargument appears to hold both that our original decision affirming these convictions was wrong, and that it was overruled- by the Supreme Court in Parker v. Gladden. I think that our former decision was right and that it does not conflict with Parker v. Gladden. If the facts had been the same as in the Parker case, our original decision would have been different under established New York •law.
■ What Avas new about the Parker case is that it held the trial by jury requirement of the Sixth Amendment to the United States. Constitution .to have been mandated on. the States by the Fourteenth Amendment. That, in itself, has nothing to do with whether jurors shall be allowed' to impeach their own verdict.- We are not concerned now Avith whether Parker v. Gladden means that our State constitutional guarantee of trial by jury (art. 1, § 2), and the decisions construing it, have wholly or partly been superseded by the Sixth Amendment to the United States Constitution, nor whether indictment -by Grand Jury in the case of felonies has been rendered inviolate against State action by the Fifth Amendment (it has been superseded, for practical purposes, by information by the District Attorney in about three fourths of the States), nor. Avhether the Seventh Amendment forbids the States to limit or abolish trial by jury in civil suits. at common law where the value in controversy exceeds $20, although these questions are foreshadowed by that important decision.. ,
The point at issue here is whether, assuming as Ave must, that this portion of the Sixth Amendment is mandated on the States, there is anything in it which requires the acceptance of
Fisch on New York Evidence (1959 ed-, p, 184) says that the rule does not “forbid the introduction o.f their testimony or affidavits to establish the misconduct of a third person in regard to the jurors ”, and the same is stated in Richardson on Evidence (9th ed., p. 434).
It is thus clear that the New York rule is of long standing that jurors* affidavits are admissible under the circumstances presented in Parker v. Gladden, and there is nothing in the opinion or decision therein which indicates that the Supreme Court would have failed to draw a similar distinction or intended to compel the use of testimony by jurors to impeach their verdict to a greater extent than has been done in this State all along.
Not being constrained by Parker v, Gladden, the question remains whether we should hold that our carefully considered decision in 1965 at 15 N Y 2d 294 should be overruled, and what Wigmore described as. the “firmly settled” law (except in a few jurisdictions) changed on account of some alteration in. a public policy which dates from the decision by Lord Makseibld in 1785 in Vaise v. Delaval (1 Term Rep. 11). This rule did not spread to every jurisdiction in the United States, with the exception of Iowa (Wright v. Illinois & Miss. Tel. Co.,
The affidavit of a juror, held to be incompetent in Payne v. Burke, charged that a fellow juror had, in a conversation in the street, stated that he “ had it in. for ” plaintiff and that he “ was going to beat ” him irrespective of the evidence.
That the rule extends to occurrences out of as well as within the juryroom is also manifested in Davis v. Lorenzo’s, Inc. (
Lord Mansfield himself was clearly aware of the reason for the role. In Vaise v. Delaval (supra) and in Owen v. Warburton (1 Bos. & Pul. N. R. 326, 329-330) it was sought to impeach verdicts on the ground that the jury had decided the cases by chance. In the case last cited Lord Mansfield said: “ The affidavit of a juryman [to the jury’s misconduct] cannot be received. It is singular, indeed, that almost the only evidence of which the case admits, should be shut out; but, considering
The United States Supreme Court was aware of these factors in 1915 in deciding McDonald v. Pless (
These considerations apply equally to receiving affidavits or testimony of jurors to impeach their verdict by showing that they visited the scene of a crime or place of a disputed transaction as they do to discussion in the jury room. Each equally opens the way to sinister and ulterior attempts by corrupt defeated litigants to impugn adverse verdicts by unscrupulous methods. Few rules are more deeply embedded in the jurisprudence of the State than this one designed to free jurors from harassment in the performance of their duties and to protect the integrity of their verdicts (Coster v. Merest, 3 Brod. & Bing. 272; Clum v. Smith,
Exceptions are recognized which fall outside, of the scope and policy of the rule, such as. where the foreman of a jury by mistake announces a verdict different from that agreed upon by the jury (Dalryonple v. Williams, supra), where jurors’ statements would show misconduct on the part of other persons in their dealings with the jurors (Schrader v, Gertner, supra), where, before a juror was accepted he concealed facts which it was his duty to disclose and which, if made known, doubtless would have resulted in his being excused (McHugh v. Jones,
There must certainly be limits to. post-verdict inquisitions of jurors to determine whether their verdict has been “ contaminated.” The New Jersey Supreme Court (Brennan, J.) intimated in State v. Kociolek that jurors’ testimony should only be excluded as to their mental processes. The majority opinion on reargument of the case at bar seems not to go quite so far by suggesting, although not stating, that, jurors should be subject to questioning afterward with regard to anything except
Our decision at 15 N Y 2d 294 was right and the judgments of conviction should be affirmed.
Chief Judge Fuld and Judges Burke and Breitel concur with Judge Keating; Judge Van Voorhis dissents and votes to affirm in an opinion in which Judges Scileppi and Bergan concur.
Upon reargument: Determination withheld and matter remitted to the Supreme Court, Queens County, for further proceedings in accordance with the opinion herein.