In December 2021, after a trial in the U.S. court for the Southern District of New York, a jury convicted British socialite Ghislaine Maxwell of child sex trafficking and other crimes related to her relationship with American financier Jeffrey Epstein. A few days later, a juror known as Scotty David revealed that he had been a victim of sexual abuse and shared his experience to convince other jurors about the victims’ credibility. He says sharing his experience swayed some jurors in the Maxwell case.
Shortly after the juror’s revelation, Maxwell’s trial lawyer sent a letter to District Judge Alison Nathan, who presided over the trial, alleging that there were “incontrovertible grounds” for Maxwell to get a new trial because he believed that disclosures by the juror “influenced the deliberations and convinced other members of the jury to convict Ms. Maxwell.” In their own letter to Judge Nathan, the U.S. attorneys who prosecuted Maxwell also noted that the statements “merit attention” by the court. Maxwell’s attorneys then filed a sealed motion for a new trial. The prosecution has now offered to drop Maxwell’s pending perjury charges if there is no retrial.
But can the juror’s comments really cause a mistrial? The answer will likely depend on the juror’s answers to the questionnaire or what he said during voir dire, as what he said during deliberations is inadmissible evidence when evaluating the need for a new trial.
Federal Rule of Evidence 606(b) prohibits a court from receiving evidence about any statements made or incidents occurring during deliberations when inquiring into the validity of a verdict.
Rule 606(b) is a powerful tool for the party prevailing at trial. In a way, a juror introducing external evidence into the deliberation room implicates the Sixth Amendment‘s Confrontation Clause in that the juror becomes a witness who is not subject to cross-examination. In the Maxwell case, the juror shared that he, as a sexual-abuse survivor, could not remember all the details of the event in response to another juror questioning the victims’ credibility since they could not remember all the details of the abuse.
The Supreme Court has tried to save this dichotomy by saying that jurors’ personal experiences are not extraneous information because it is unavoidable that they will bring their experiences to the jury room.
What Is Voir Dire?
Voir dire is the process of jury selection during which the trial judge and each party can question potential jurors to find to determine their fitness to serve on the jury panel of a particular trial. While “voir dire” literally translates to “speaking the truth” in old French, it is not always necessary that a juror be completely honest in order for a verdict to stand. In Warger v. Shauers, the Supreme Court held that Rule 606(b) bars evidence of jury deliberations to demonstrate juror dishonesty during voir dire.
In the Maxwell case, potential jurors who answered that they had experienced sexual abuse or assault were subject to follow-up questions during voir dire to evaluate their ability to serve on the jury. Judge Nathan could not use Scotty David’s statements during deliberations to compare them with the answers he gave at voir dire regarding sexual abuse or assault. In any event, it is unclear whether Scotty David was subject to those follow-up questions at voir dire, which casts doubts on what he replied to the questionnaire’s inquiry about sexual abuse or assault.
Given the Supreme Court’s interpretation of Rule 606(b), Maxwell’s chances for a new trial will likely hinge on what juror Scotty David replied to the jury questionnaire’s inquiry as to whether they or a family member had experienced sexual abuse or assault. With the defense’s motion for a new trial being sealed, it is unclear what Scotty David answered on the questionnaire or whether he was questioned on sexual abuse or assault during voir dire. In fact, not even Scotty David himself remembers what he replied. When asked about his response to the question, he said that he “flew through” the questionnaire and did not recall a question about sexual abuse.