In Dietz v. Bouldin, No. 15-458 (June 9, 2016), the U.S. Supreme Court addressed the question of whether a federal district court judge may recall a jury to correct a mistaken verdict after the jury has been discharged, or whether the sole remedy in this circumstance is to order a new trial. In a 6−2 decision, the high court found that the district court has such authority, although it is to be exercised sparingly.
In Dietz, the plaintiff was driving through an intersection in Bozeman, Montana, when the defendant ran a red light and "T-boned" the plaintiff's car. At trial, the defendant admitted negligence and stipulated to the amount of the plaintiff's past medical expenses ($10,186.00). The only questions for the jury, therefore, were whether the plaintiff was entitled to damages in excess of his past medical expenses and, if so, how much. The jury returned a verdict for the plaintiff, but awarded him $0 in damages. The judge thanked the jurors for their service and discharged them by telling them that they were "free to go." The jurors gathered their belongings and left the courtroom.
A few minutes later, the judge ordered the clerk to bring the jurors back because he realized that the $0 verdict was "legally impossible" in light of admitted liability and stipulated damages of $10,186.00. Speaking with counsel outside the presence of the jury, the judge suggested two alternatives to remedy the situation: (1) order a new trial or (2) re-empanel the jurors, instructing them to award at least the stipulated damages and ordering them to deliberate anew. The plaintiff's attorney objected to re-empaneling the jury, arguing that the jury was no longer capable of returning a fair and impartial verdict. On the ground that he would "hate to just throw away the money and time that's been expended in this trial," the judge advised counsel that none of the jurors had left the building except one, who left to retrieve a hotel receipt and bring it back. The judge then questioned the jurors as a group and confirmed that they had not spoken to anyone about the case. The judge then explained the mistake in the verdict, re-empaneled the jury, gave them curative instructions and ordered them to return the next morning to deliberate anew. The jurors did so and returned a verdict for plaintiff of $15,000.
The U.S. Court of Appeals for the Ninth Circuit affirmed, holding that a district court may re-empanel the jury shortly after it is discharged "as long as during the period of dismissal, the jurors were not exposed to any outside influences that would compromise their ability to reconsider the verdict fairly." (p. 3)
The Majority's Analysis
The majority affirmed the Ninth Circuit, grounding its decision in the district court's inherent power to comply with Federal Rule of Civil Procedure 1's "paramount command: the just, speedy, and inexpensive resolution of disputes." Recognizing that the Supreme Court has "never precisely delineated" this inherent power, the majority nevertheless noted two limits on its exercise. First, the exercise of an inherent power "must be a reasonable response to the problems and needs confronting the court's fair administration of justice." (p.4) Second, the exercise of an inherent power "cannot be contrary to any express grant of or limitation on the district court's power in a rule or statute." (p. 4)
These two principles, the majority concluded, "support the conclusion that a district judge has a limited inherent power to rescind a discharge order and recall a jury in a civil case where the court discovers an error in the jury's verdict." (p.5) Depending on the circumstances presented, recalling a jury to correct its verdict is a reasonable response to a mistaken verdict that allows the district court to manage its docket "with a view toward the efficient and expedient resolution of cases" and "can save the parties, the court, and society the costly time and litigation expense of conducting a new trial with a new set of jurors." (p. 6) Finally, there is no rule or statute prohibiting the rescission of a discharge order to recall the jury.
Recognizing that "just because a district court has the inherent power to rescind a discharge order does not mean that it is appropriate to use that power in every case," the majority next listed the factors that the district court must consider when deciding whether or not to do so, cautioning that the court must exercise this particular inherent power "with restraint."
These factors are:
- The length of time between the discharge and the recall. "The longer the jury has been discharged, the greater the likelihood of prejudice.... How long is too long is left to the discretion of the district court, but it could be as short as even a few minutes, depending on the case." (p. 9)
- Whether the jurors have spoken to anyone about the case after discharge. "This could include court staff, attorneys and litigants, press and sketch artists, witnesses, spouses, friends, and so on." (p. 9)
- Reaction to the verdict. "Trials are society's way of channeling disputes into fair and impartial resolutions. But these disputes can be bitter and emotional. And, depending on the case, those emotions may be broadcasted to the jury in response to their verdicts. Shock, gasps, crying, cheers, and yelling are common reactions to a jury verdict – whether as a verdict is announced in the courtroom or seen in the corridors after discharge. In such a case, there is a high risk that emotional reactions will cause jurors to begin to reconsider their decision." (p. 9) On this factor, the district court should be "reluctant" to re-empanel a jury that has witnessed an emotional reaction to its verdict.
- Post-discharge use of smartphones or the internet. "Courts should also ask to what extent just-dismissed jurors accessed their smartphones or the Internet, which provide other avenues for prejudice. It is a now-ingrained instinct to check our phones whenever possible. Immediately after discharge, a juror could text something about the case to a spouse, research an aspect of the evidence on Google, or read reactions to a verdict on Twitter. Prejudice can come through a whisper or a byte." (p. 10)
Applying these factors to the facts presented, the majority held that the district court did not abuse its discretion in recalling the jury for further deliberation. The jury was out for only a few minutes after discharge and only one juror left the courthouse to retrieve a hotel receipt and bring it back to the court clerk. The jurors did not speak to anyone about the case after discharge, and the record was devoid of evidence that the verdict "generated any kind of emotional reaction or electronic exchanges or searches that could have tainted the jury." (p. 10) In sum, "There was no apparent potential for prejudice by recalling the jury here." (p. 10)
The two-justice dissent (Thomas and Kennedy) opined that the sole remedy in the circumstances presented should be a new trial because, "in today's world of cellphones, wireless Internet, and 24/7 news coverage," discharged jurors "may easily come across prejudicial information when, after trial, the court lifts their restrictions on outside information."
The Dietz inquiry is a fact-intensive one, and a complete record must be built not only to secure the desired relief in the district court but also to preserve the issue for appellate review. The core members of Wilson Elser's Appellate practice often participate actively at trial − either on-site or remotely – to do just that.
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