We granted the petition of the state for review of the decision of the Court of Appeals,
In May of 1982 the victim’s family began renting a house owned by defendant’s parents, who lived nearby. Defendant, who was then 20, living with his parents, and doing odd jobs, began playing with the victim, who was 5, and his two brothers, who were 6 and 8 at the time. The victim’s father was an over-the-road trucker who was gone during the week, and the victim’s mother began taking advantage of defendant’s willingness to sit with the children while she went on errands. Defendant abused all three children but his abuse of the older boys was less serious, consisting of sexual contact through the clothing while playing and wrestling with the boys. The abuse of the youngest, the victim of the charged offenses, was more serious. Most of the abuse of the victim occurred when defendant was alone with the boy on the days that the boy did not have kindergarten. The abuse included defendant committing acts of fellatio upon the boy, putting ice inside the boy’s rectum and then eating the ice, and kissing the boy. The brothers did not witness these incidents but did witness an incident in which defendant, while swimming in the river with the victim, forced the boy’s head under water in an attempt to make the boy commit fellatio upon him. The brothers also witnessed defendant display his penis inappropriately on a number of occasions. Once in the summer of 1983 the victim complained to his mother that his penis was sore and inflamed and the mother treated it without investigating the cause. Later that summer the victim told a cousin about the abuse, she told the grandmother and the grandmother made the victim tell his mother. The mother was slow in reporting the matter to the authorities.
When defendant was arrested he told the arresting officer that something happened at the victim’s place that was not right but that it also was not right to arrest him. Later, after being given a Miranda warning and asked if he wanted to talk about the incident, he said, “What if I did some of the things they said I did, but not the others?” In his testimony defendant denied the offense and called numerous character witnesses (mostly people he had worked for and people who were in his prayer group) who testified that he was honest and that they had never seen him do anything wrong with their children. However, some of these witnesses admitted that they were aware of an act of bestiality (sexual intercourse with a calf) by defendant.
1. The issue of juror misconduct, the only issue addressed by the Court of Appeals, came to light after the trial when one of the jurors told her pastor that the jury foreman had said during deliberations that he had been abused by his brother as a child. Defense counsel moved for a Schwartz hearing, claiming that the foreman had lied on voir dire (of which there was no record) by not revealing this when asked a question intended to elicit the information. The prosecutor argued against a Schwartz hearing, stating that his recollection was the defense counsel did not ask the jurors the question that defense counsel recalled asking. The trial court initially was inclined to grant a Schwartz hearing, but then got defense counsel to agree to let him first look at counsel’s voir dire notes and the affidavits to see if there was a basis for holding a Schwartz hearing and interrogating the jurors. The trial court denied the motion after doing this, but reconsidered the issue in its entirety when defendant hired a new attorney. In denying the motion for a new trial filed by defendant’s new attorney, the trial court stated that its recollection was that at voir dire defense counsel had asked whether *339 the jurors had any prior experience with a sexual case and then added, without pausing, “any family members, any close friends?” The trial court concluded that defense counsel had not made a sufficient showing of the need for a Schwartz hearing to question the foreman or the others about whether anyone had lied at voir dire.
In
State v. Stofflet,
In Schwartz v. Mpls. Suburban Bus Co.,258 Minn. 325 , 328,104 N.W.2d 301 , 303 (1960), we outlined procedures to be followed when a party seeks to impeach a verdict. Rule 26.03, subd. 19(6), Rules of Criminal Procedure, adopts the procedures outlined in Schwartz. This rule states:
“Affidavits of jurors shall not be received in evidence to impeach their verdict. If the defendant has reason to believe that the verdict is subject to impeachment, he shall move the court for a summary hearing. If the motion is granted the jurors shall be interrogated under oath and their testimony recorded.”
At common law the general rule in Minnesota was to disallow juror testimony or affidavits to impeach a verdict. There were exceptions, however, including “when there was some indication that a juror gave false answers on voir dire which concealed prejudice or bias toward one of the parties and thereby deprived that party of a fair trial.” [Footnote omitted]. Note, 4 Wm. Mitchell L.Rev. 417, 432.
The best argument in favor of a hearing is that such hearings should be liberally granted. Olberg v. Minneapolis Gas Co.,291 Minn. 334 , 343,191 N.W.2d 418 , 425 (1971). Since only one juror was involved, it probably would not have taken much of the court’s time to hold such a hearing. The focus of the examination would probably not have been on the deliberations of the jurors but on the particular juror’s feelings about defense counsel and whether it was likely that those feelings, if negative, prejudiced defendant.
Numerous decisions of this court have indicated, however, that the trial court exercises fairly broad discretion in determining whether to grant a Schwartz hearing. See, e.g., Zimmerman v. Witte Transp. Co.,259 N.W.2d 260 (Minn.1977). Here it was clearly within defense counsel’s power to prevent the person in question from serving on the jury. In fact, he testified that when he first saw her at voir dire he thought he recognized her but could not quite place her. This being so, it would seem he had some obligation to interrogate her carefully to determine whether he had had prior contact with her. Also, to ensure preserving his right to challenge a juror’s failure to answer a question accurately at voir dire, defense counsel should insist on the presence of the reporter. We have no record of the voir dire; defense counsel cannot even say for sure that he questioned the jurors about whether they knew him. The prosecutor testified that the only question asked was whether any of the jurors had done any business with defense counsel’s law office. Under these circumstances — and since it is questionable whether a juror would penalize a defendant simply because of a bad prior experience with defense counsel — we conclude that the trial court did not abuse its discretion in refusing to grant the Schwartz hearing.
Subsequently, in
State v. Rachuy,
We believe that in every criminal prosecution the trial court as a general matter ought to require the presence of a court reporter at
voir dire.
Defense counsel could have insisted on the presence of a reporter but did not do so. However, the trial court’s independent recollection, supported by the recollection of the prosecutor and apparently not contradicted by an examination of defense counsel’s
voir dire
notes, was that defense counsel did not ask the sort of clear question that, absent a lack of credibility on the juror’s part, necessarily would have elicited the disclosure of the sort of information that the foreman withheld. This case is like
State v. Beer,
In summary, while the trial court certainly could have ordered a Schwartz hearing, we disagree with the conclusion that the trial court abused its discretion in refusing to do so. Defendant failed to make a sufficient showing that the juror in question lied. Indeed, the record that we have strongly suggests that he did not lie. 1
2. Defendant’s brief in the Court of Appeals raised a number of other issues. As we stated, because of its disposition of the appeal the Court of Appeals found it unnecessary to address these other issues. Of these other issues, the only one that we will address in any detail is the one raised by defendant’s contention that the trial court improperly limited the defense’s attempt to show that the allegations were fabricated.
The state’s evidence included testimony by an expert that the victim exhibited an unusual knowledge of sexual activities for someone his age and that it was the result of the boy having been given an education by somebody. Defendant claims that the trial court improperly refused to let him *341 show that the boy’s knowledge came from his family, not from defendant, and that the trial court’s refusal prevented him from effectively asserting the fabrication defense.
Minn.R.Evid. 404(c), as construed by this court, governs the admission of evidence of “the victim’s previous sexual conduct” in prosecutions under Minn.Stat. §§ 609.342 to 609.346 (1984). Defendant argues that it was error for the trial court to rely on this rule in excluding some of the offered evidence because the rule relates to “the victim’s previous sexual conduct,” whereas defendant was not trying to show any prior consensual sexual conduct of the victim but the source of the victim’s knowledge of sexual matters. We need not decide whether the rule was intended to govern the admission of evidence of the sort offered by defendant. In
State v. Caswell,
Other issues — the trial court’s denial of a motion for a new trial based on other grounds and the trial court’s denial of a stay of defendant’s 43-month prison sentence pending appeal — do not merit discussion.
Reversed and judgment of conviction reinstated.
Notes
. Even if we agreed that the trial court abused its discretion in refusing to conduct a
Schwartz
hearing, we would not agree with the Court of Appeals’ decision to grant a new trial rather than remand for a
Schwartz
hearing. The Court of Appeals stated that holding a hearing at this late date is “impracticable" because some of the jurors may no longer be available for interrogation and because "the problem of memory loss makes such a hearing much less useful.”