OPINION OF THE COURT
At issuе in this case is the extent to which a jury’s verdict may be impeached by allegations of improprieties during the jury’s deliberations.
Almost one month following the return of the jury’s verdict finding defendant guilty, one of the jurors, Eleanor Allen, telephonеd the defense counsel and told him that she wished to discuss certain improprieties that occurred during the jury’s deliberation. Two weeks later, Ms. Allen and another juror, Jerilynn Harris, came to the attorney’s office and detailed their аllegations in formal affidavits. Based on these affidavits, defendant moved to set aside the verdict. A hearing was then held at which both disaffected jurors elaborated their complaints.
Both jurors claimed that they had voted "guilty” only beсause of intimidation and coercion by the foreman and other jurors. They also recounted various alleged improprieties. The jurors asserted that they had been threatened by the
Finally, there was testimony by the two jurors that during the course of the trial one оf the alternate jurors had visited the crime scene and reported the findings and conclusions of his examination of the area to several of the other jurors, who then discussed these observations during the deliberations.
The hearing court denied the motion to set aside the verdict, without extensive comment, noting that the jurors’ complaints could have been made to court officers during the trial, or at the time that the jury was polled.
The basic principlе that guides consideration of an application such as this is that, absent special circumstances, a jury verdict should not be impeached by affidavit or testimony of the jurors after the verdict has been returned. (See, e.g., People v De Lucia,
The long-standing rule that statements by jurors may not be used to impeach a verdict once the jury has been discharged, reflecting the reluctance of courts to inquire into the process of deliberation, can be traced to Lord Mansfiеld’s decision in Vaise v Delaval (1 TR 11 [1785]) where the court refused to consider the affidavits of jurors to prove that the verdict was reached by the drawing of lots on the ground that "a witness shall not be heard to allege his own turpitude”. The subsequent incorporation into the jurisprudence of this country of the rule against jurors impeaching their own verdict was based on grounds of public policy. Such proscription was seen as reducing the risk of jury tampering by protecting the jurors from harassment by a defeated party seeking to secure evidence which might establish misconduct sufficient to set aside a verdict. It was also intended to secure the privacy and secrecy of jury deliberations, to ensure "frankness and freedom of discussion and conference”. (McDonald v Pless, 238 US
An examination of the various instances of misconduct asserted in the instant case demonstrates the soundness of this approach. Upon careful scrutiny, most of the claims are essentially complaints stemming from escalated tempers and of obscenities shouted by the foreman. In People v Jacobson (
Nor do the vague and generalized allegations of premature deliberations and predisposed jurors wаrrant the setting aside of the verdict. No significant details of the alleged premature deliberations were provided and the alleged comments made by other jurors indicating predisposition were isolated remarks which werе not shown to have unfairly influenced or prejudiced the deliberative process. Indeed, the two complaining jurors admitted that they were not influenced by these remarks. (See, People v Horney,
The jurors were polled at the conclusion of the сase and affirmed their decision, in open court, without reservation and with no juror giving any indication that the verdict was not freely his or her own. (Cf., in contrast, People v Pickett,
In the instant case, since no reservations were in any way exprеssed by the disaffected jurors before the verdict was rendered, they cannot now be permitted to impugn the finality and integrity of that verdict by belated claims of alleged coercion by other members of the jury.
While the postverdiсt complaints regarding the tenor and dynamics of the deliberative process, essentially amounting to belated misgivings or second thoughts, are insufficient to overturn the verdict, the situation with respect to the visit to the crime scenе is of a different character.
The policy considerations underlying the general rule against impeachment of a jury’s verdict must be balanced against a defendant’s fundamental right to trial by a fair and impartial jury. In that context, evidence of an "outside influence” on the jury is held to constitute an exception to the general rule. This exception was early recognized in Mattox v United States (
The critical distinction between juror’s statements regarding the tenor of jury deliberations and those concerning outside influences, insofar as they relate to possible impeachment of the jury’s verdict, was further amplified in People v De Lucia (20 NY2d, supra, at 279) as follows:
"Wherе, 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 statemеnts inadmissible must ordinarily override possible injustice to 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 рroof, should be admissible to show that the defendant was prejudiced, for here the danger to our jury system is*39 minimal compared with the more easily proven prejudice to the defendant. * * *
"Our re-evaluation of the common-law rule that jurors may not impeach their own verdicts reveals that in the case of such inherently prejudical 'outside influences’ on a jury as were here present, the violation of the defendants’ Sixth Amendment rights outweighs the policy reаsons for the rule.”
It is clear, therefore, that the statements of jurors may be used to demonstrate that some improper extraneous information or outside influence intruded upon the jury’s deliberations to the defendant’s prejudiсe and upon a showing of such prejudice the verdict must be set aside. (See, People v Brown,
Precisely such a showing was made in the instant case. Testimony was presented at the hearing that during the trial, an alternate juror, Mr. Cherry, visited the scene of the crime and made observations concerning the locale. He compared his observations with the physical description of the scene described in the trial testimony with respect to the location of the defendant, his accomplices, and the victim at the time of the alleged crime, and arrived at conclusions regarding the plausibility of the testimony describing the manner in which the shooting occurred. Mr. Cherry reported these observations to several of the jurors the next morning, and these matters were discussed during deliberations.
An unauthorized visit to the alleged crime scene by a juror has been held to constitute inherent prejudice to the defendant since such juror, in effеct, becomes an unsworn witness against the defendant in contravention of the defendant’s Sixth Amendment rights of confrontation and cross-examination (see, People v De Lucia, supra; People v Brown, supra; People v Crimmins,
Judgment, Supreme Court, Bronx County (Solomon Katz, J., at trial; William T. Martin, J., at postconviction hearing and sentence) rendered August 29, 1988, which convicted defendant, after jury trial, of attempted murder in the second degree and sentenced him to a prison term of 6 to 12 years, unanimously reversed, on the law, and the case remanded to the Supreme Court for a new trial.
Murphy, P. J., Carro, Asch and Smith, JJ., concur.
Judgment, Supreme Court, Bronx County, rendered August 29, 1988, unanimously reversed, on the law, and the case remanded to the Supreme Court for a new trial.