Wall, Richard

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 42 Number 1 Article 9 1965 Criminal Law - New Trial - Misconduct of Jury Richard Wall Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Wall, Richard (1965) "Criminal Law - New Trial - Misconduct of Jury," North Dakota Law Review: Vol. 42 : No. 1 , Article 9. Available at: https://commons.und.edu/ndlr/vol42/iss1/9 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESof support imposable on defendant under that state's law,1" anamendment was recommended in 1958 which permitted the respond-ing state to treat a duly registered judgment as if locally issued.15This amendment failed to accomplish its purpose, however, becauseit is apparent that the effectiveness of the Uniform Support Act isdependant upon the interpretation of the court in the respondingstate. 26 Even the criminal extradition provisions of the Act, unsatis-factory as they may be for providing support, are subject to judicialinterpretation.If North Dakota's neighbors who do not impose the obligationto support illegitimate children18 accept the reasoning of the Texascourt, it is evident that a father of an illegitimate child, althoughobligated under North Dakota law to provide support,19 need notbe too inconvenienced to escape his obligation.Considering that the common law rule has been abrogated inother states by judicial construction 2° and that full faith and credithas been extended to cover ambulatory judgments in other states2'and even in Texas in some cases, 22 the Texas court would havemade no radical variation from accepted practice. Leaving for leg-islative enactment what has been accomplished elsewhere by judicialconstruction is a dereliction of precedent. Judicial cognizance ofthe social problem and public burden for which a remedy is soughtshould be combined with the plenary powers of judicial interpreta-tion and construction to give effect to this Uniform Support Act andpreclude Texas and others 23 from becoming havens for those whowish to sow the seeds but avoid the tedium of nurturing the crop.ROBERT STROUPCRIMINAL LAW-NEW TRIAL-MISCONDUCT OF JuRY-The de-fendant was convicted of petit larceny for obtaining money by anunpaid check. He appealed for a new trial claiming misconducton the part of the jury. The affidavits of two jurors stated thatduring their deliberation the jury foreman made many statementsto the jury in respect to his view that the defendant was guilty.He stated that he had a stack of bad checks in his office and that14. Duncan v. Duncan, 85 Ohio L. Abs. 522, 172 N.E.2d 478 (1961) ; contra, Wilson v.Chumney, 214 Ga. 120, 103 S.E.2d 552 (1958) (responding state held proceedings ofinitiating state res judicata).15. 9C U.L.A. §§ 33-38 (Supp. 1964).16. Clarke v. Blackburn, 151 So. 2d 325 (Fla. 1963) ; Hardy v. Betz, 105 N.H. 169, 195A.2d 582 (1963). The responding state refused extradition on grounds that defendant hadnot been adjudged guilty of a crime under law of responding state.17. Ibid.18. E.g., Idaho, Michigan, Missouri and Montana.19. N.id. CENT. CoDn § 32-36-01 (1960).20. Supra notes 9, 10 and 11.21. Supra note 4.22. Supra note 6.28. Op. cit. supra note 18.NORTH DAKOTA LAW REVIEWa stop must be put to such a practice. Later during the deliberationthe same juror explained that the defendant had previously beenin court. The Supreme Court of Tennessee held that the Consti-tutional right to meet the witnesses face to face was not deniedthe defendant and it was not shown that there was misconducton the part of the jury. Troglen v. State, 392 S.W.2d 925 (Tenn. 1965)The majority of jurisdictions hold to the orthodox view thatthe members of a jury may not give testimony so as to impeachtheir verdict.1 The reasons given for such a decision as well asthe criticism 2 of such decisions are varied and voluminous.3  Sev-eral states have modified the archaic rule to admit a juror's im-peachment of his verdict.4 North Dakota has modified the ruleonly to civil verdicts arrived at by chance.5These jurisdictions which receive the testimony of a jury mem-ber for the purpose of avoiding the verdict do so in a limitedfashion under the Iowa rule which limits this testimony to thoseitems that do not essentially inhere in the verdict itself.0 Underthis rule the motives, methods and mental processes by which thejury reaches its decision inhere in the verdict,7 while the existenceof conditions of the occurrence of events bearing on the verdictare proof of facts which will be admitted into evidence."After the alleged misconduct on the part of the jury has beenadmitted, the granting of a new trial is at the discretion of thetrial judge.9 Some courts categorically grant a new trial if thereis misconduct on the part of the jury, 10 while others hold that theremust be actual prejudice toward the defendant before a new trialis granted."' Generally a new trial will not be granted unless thefact alleged is based upon an observation, experience or idea uniqueto that juror by virtue of his business, profession or social cir-cumstance,'1 2 or is not part of the evidence admitted during thetrial." The court's reasoning in the principal case falls within thisgeneralization.The right of the defendant to be confronted with the witnessagainst him in a judicial proceeding is a basic Constitutional right1. E.g., Ramsey v. United States, 27 F.2d 502 (6th Cir. 1928); Brackin v. State, 31Ala. App. 228, 14 So. 2d 383 (1943) ; State v. Graber, 77 N.D. 645, 44 N.W.2d 798 (1950).2. McDonald & U.S. Fidelity & Guaranty Co. v. Pless, 238 U.S. 264 (1915).3. E.g., Taylor v. State, 18 Ala. 466, 93 So. 78 (1922) ; State v. Kociolek, 20 N.J.92, 118 A.2d 812 (1955); Sandoval v. State, 209 S.W.2d 188 (Tex. 1948).4. E.g., State v. James, 198 Iowa 976, 200, N.W. 577 (1924) ; Galvin v. State, 46Tenn. 283 (1869); TEx. CODE CRIM. PROC. art 753 (1950).5. N.D. It. Civ. P. 59 (b) (2) (1957) ; Grenz v. Werre, 129 N.W.2d 681 (N.D. 1964)State v. Graber, supra note 1.6. Butler v. United States, 317 F.2d 249 (8th Cir. 1963) ; Wright v. Illinois & Miss.Tel. Co., 20 Iowa 195 (1866); MODEL CODE: OF EVIDENCE rule 301 (1942).7. State v. Lorenzy, 59 Wash. 308, 109 Pac. 1064 (1910).8. State v. Kociolek, supra note 3.9. State v. Jones, 357 P.2d 760 (Kan. 1960); State v. Cray, 31 N.D. 67, 153 N.W.425 (1915).10. State v. Koclolek, supra note 3; TEX. CODE CRIM. PROC., supra note 4.11. State v. Olds, 106 Iowa 110, 76 N.W. 644 (1898); State v. Robidou, 20 N.D. 518,128 N.W. 1124 (1910); Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243 (1955).12. See, e.g., Russ v. State, 95 So. 2d 594 (Fla. 1957) ; Rawlings v. State, 303 S.W.2d799 (Tex. 1957).RECENT CASESwhich has been extended to the states by the fourteenth amend-ment.15 The court in the principal case bypassed this Constitutionalissue by merely saying that the juror was not a witness. A contraryopinion can be reached by viewing the juror's statement in thelight of his fellow jurymen. The statement that he had a stack ofbad checks in his office implied that at least one of these checkswas passed by the defendant. The later part of his testimony thata stop must be put to this practice could have inferred that astop should be put to this particular defendant. A few well chosenquestions by defendant's counsel on cross-examination could havebrought out the truth that the juror was not speaking of the de-fendant but of his customers in general.An analogous situation arose in United States v. Douglas'6 wheretwo affidavits were attached to the information sent to the jury.Each contained persuasive proof in support of the alleged charges.The affidavits, however, had not been admitted into evidence duringthe trial. The circuit court held that the submission to the juryof the affidavits was a palpable infringement on the defendant'sConstitutional right to be confronted with the witness against him.If the jury's deliberation under these circumstances is a violationof the defendant's Constitutional rights, there is no logical reasonwhy a juror's adverse testimony should not come within the purviewof the Constitution. This is especially true in light of the UnitedStates Supreme Court's recent decisions expanding the applicationof an accused's Constitutional rights.17 The only remedy for suchmisconduct is a new trial.Allowing the defendant the right to confrontation in this situationmay burden the courts for at least a short period until judges becomeaccustomed to instructing juries on such matters. The difficultyresulting from such confrontation, however, should not be an excusefor refusing to improve the means of justice.RICHARD WALL13. State v. Wegener, 180 Iowa 102, 162 N.W. 1040 (1917); State v. Burton, 65 Kan.704, 70 Pac. 640 (1902) : Briggs v. State, 207 Tenn. 253, 338 S.W.2d 625 (1960).14. U.S. CONST. art. 6.15. Pointer v. Texas, 85 Sup. Ct. 1065 (1965).16. 155 F.2d 894 (7th Cir. 1946).17. E.g., Escobedo v. Ill., 84 Sup. Ct. 758 (1964) ; Gideon v. Wainwright, 372 U.S. 335(1963); Mapp V. Ohio, 367 U.S. 643 (1961)

Criminal Law - New Trial - Misconduct of Jury

https://commons.und.edu/cgi/viewcontent.cgi?article=3113&context=ndlr

Criminal Law - New Trial - Misconduct of Jury

Abstract

Similar works

Full text

Available Versions

UND Scholarly Commons (University of North Dakota)