ORDER AND DECISION ON DEFENDANT'S MOTION FOR NEW TRIAL

D. BROCK HORNBY, District Judge.

The defendant's motion to set aside verdict and for new trial based upon juror misunderstanding is DENIED.

On July 11, 2011, this criminal trial began and ended. The testimony lasted about three and one-half hours. The facts and the law were not complicated. After I charged the verdict, the jury deliberated for about two hours and fifteen minutes before returning a verdict of Guilty. During deliberations they sent out one note with three questions that all pertained to the facts of the case and are not relevant to this motion.

No earlier than July 19, 2011, I received a letter dated July 14, 2011 from one of the jurors. It stated:

I held a conference of counsel where the lawyers could see the entire letter. I made the letter a sealed court exhibit. After redacting it for personal identifying information, I permitted the lawyers to have a copy of the redacted letter. Then I gave the lawyers an opportunity to file legal memoranda concerning the matter. They have done so, with the defendant filing his as a motion.

It is a longstanding principle in this country and this circuit that courts and lawyers are not to inquire about what goes on in the jury room or to investigate how the jury reached its verdict. There are a number of reasons—among them, inquiry into the mental processes of jurors, if allowed, would invite harassment by the defeated party in an effort to discover something to set aside the verdict; jurors summoned to do their civic duty deserve a modicum of privacy; jury verdicts could be undermined by jurors who later have second thoughts; and the stability and finality of verdicts must be upheld. But three exceptions have been carved out of this general prohibition: extraneous prejudicial information improperly brought to the jury's attention; outside influence improperly brought to bear upon any juror; a mistake in entering the verdict onto the verdict form. Fed.R.Evid. 606(b).

This juror's letter fits none of the exceptions. The defendant attempts to fit it into the third, an error in recording the juror's vote. But it does not fit. Nowhere does the juror suggest that he/she voted not guilty and that the foreperson erroneously counted him/her as a guilty vote. Instead, this juror says that he/she went along with the guilty verdict, ostensibly under some misapprehension of the right to maintain his/her belief and to create a hung jury. I will return to that misapprehension later.

The First Circuit has recently recognized a fourth exception, based upon constitutional grounds. United States v. Villar, 586 F.3d 76, 87 (1st Cir. 2009). That exception allows, under limited circumstances, an inquiry into juror racial or ethnic bias during jury deliberations, because of constitutional requirements. Id. No such racial or ethnic bias is implicated here. Instead, this is at best a single juror's misunderstanding of the judge's jury instructions. The cases are uniform that such a misunderstanding is not grounds for overturning a verdict or for examining the juror about it. See, e.g., Gale v. City of Tecumseh, 156 Fed.Appx. 801, 811 (6th Cir. 2005) ("testimony of jurors is incompetent to impeach a verdict based on misinterpretation of the court's instructions"); United States v. Wickersham, 29 F.3d 191, 194 (5th Cir. 1994) ("Rule 606(b) has consistently been used to bar testimony when the jury misunderstood instructions."); Karl v. Burlington N. R.R. Co., 880 F.2d 68, 75 (8th Cir. 1989) ("misapprehension of the law set out in the court's instructions ... cannot be used to impeach a verdict"); 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 606.04 (Joseph M. McLaughlin, ed., 2d ed. 2010) (Rule 606(b) prohibits testimony that a juror misunderstood or disregarded the judge's instructions).

Finally, although I accept this juror's sincerity in what he/she said in the letter, I find it difficult to comprehend how the juror could have misunderstood the jury instructions. Even if this juror did not know the meaning of the word "unanimous" and even if this juror had not been exposed to the unanimity requirement through popular culture such as movies and television, I also stated the following in my instructions:

Not only did I say this aloud to the jury, but I also allowed each juror to take a copy of the instructions to the jury room during deliberations.

When the jury returned to the courtroom to announce their verdict, the Clerk read the verdict aloud, then asked the jury foreperson, "Madame foreperson, is this your verdict?" She responded "yes." Then the Clerk inquired, "Ladies and gentlemen of the jury, is this your verdict?" All jurors responded affirmatively. I know they did, because I watch the jury carefully during this process, as do the lawyers, watching for any sign of disagreement. And here there was no request to poll the jury.

Finding a fellow citizen guilty of a crime is no light matter, and I am always impressed at how seriously jurors take their task and agonize over their verdicts. It is not unusual to have second thoughts about such a momentous decision and to wish that one had held out for a different outcome. But to allow those second thoughts to open the jury verdict or the jury deliberation process would create pressure on untold numbers of conscientious jurors in untold numbers of cases where friends or neighbors or media later question the verdict. The precedents wisely prevent this kind of second-guessing. Even if this juror actually misunderstood the instructions rather than simply ruling his/her earlier vote and decision to go along, that is not grounds for a new trial or for any investigation of the jury deliberations.

SO ORDERED.