Whether or not testimony of a juror is admissible for the purpose of setting aside a verdict is a question upon which the cases are in conflict. Much of the contrariety of opinion is due to a failure of courts to distinguish between the two basic factual situations which present the problem. The juror's testimony may be sought to be introduced to show either: (1) that, due to some misunderstanding, his own thought processes were misdirected in arriving at his final vote; or, (2) that he observed the open misconduct of a fellow juror. At the outset it should be noted that the majority rule is to exclude all testimony of jurors whether it goes to prove misunderstanding or misconduct. However, the American Law Institute in its Model Code of Evidence adopted a rule correctly recognizing the distinction pointed out and squarely opposing the majority rule as to misconduct. It stated that "every member of the jury may testify to any material matter, including any statement or conduct ... of any member of the jury ... whether during deliberations of the jury, or in reaching or reporting its verdict .... " Because of the number of eminent authorities who aided in this draft it is appropriate to reconsider the policies lying behind the majority rule.
R. J. Nordstrom S.Ed.,
NEW TRIAL - USE OF TESTIMONY OF JURORS TO SET ASIDE VERDICT,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol47/iss2/9