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

Where respondents contended that the court's colloquy with the jury was prohibited by subsection (b), the court's questions did not require the jurors to discuss their thoughts, emotions, or mental processes. Among other things, the court's first three inquiries asked only if the verdict "accurately reflected" each juror's verdict; the questions regarding the accuracy of the verdict did not fall within the prohibition in subsection (b). 131 H. 437, 319 P.3d 356 (2014).

Juror competent to testify about objective juror misconduct. 7 H. App. 1, 739 P.2d 251 (1987).

Jury foreperson's misrecollection of evidence barred. 7 H. App. 424, 774 P.2d 246 (1989).

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 (2006).

Circuit court did not abuse its discretion in denying the motion to correct verdict and enter judgment or the motion to resubmit where circuit court found that the jury's error was that it misunderstood the legal effect of its answer to a simple yes-or-no question and was not merely a clerical error; the record amply supported this finding; this type of juror confusion was not a basis for amending the verdict. 129 H. 250 (App.), 297 P.3d 1106 (2013).