(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Subsection (a). This subsection, which is taken verbatim from Fed. R. Evid. 606(a) and is nearly identical to Proposed Mass. R. Evid. 606(a), reflects Massachusetts practice.
Subsection (b). This subsection is taken nearly verbatim from Proposed Mass. R. Evid. 606(b) and is derived from Commonwealth v. Tavares, 385 Mass. 140, 153–157, 430 N.E.2d 1198, 1207–1208, cert. denied, 457 U.S. 1137 (1982), and Commonwealth v. Fidler, 377 Mass. 192, 196–198, 385 N.E.2d 513, 516–517 (1979). In Commonwealth v. Tavares, 385 Mass. at 155 n.25, 430 N.E.2d at 1208 n.25, the court stated that Proposed Mass. R. Evid. 606(b) “is the federal rule, and is in accord with the current Massachusetts rule admitting evidence of extraneous information and excluding evidence of mental processes” (quotation and citations omitted). See also Commonwealth v. Walker, 379 Mass. 297, 304, 397 N.E.2d 1105, 1109 (1979); Woodward v. Leavitt, 107 Mass. 453, 466–467 (1871); Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 816, 694 N.E.2d 358, 364 (1998).
The Doctrine of “Extraneous Matter.” In Commonwealth v. Fidler, 377 Mass. at 200, 385 N.E.2d at 518, the court held that “if specific facts not mentioned at trial concerning one of the parties or the matter in litigation were brought to the attention of the deliberating jury by a juror . . . such misconduct may be proved by juror testimony.” The court cautioned, however, that “evidence concerning the subjective mental processes of jurors” is not admissible to impeach their verdict. Id. at 198, 385 N.E.2d at 517. The challenge for courts is to make the distinction between “overt factors and matters resting in a juror’s consciousness.” Id. See Commonwealth v. Heang, 458 Mass. 827, 858, 942 N.E.2d 927, 952 (2011) (pressure from other jurors during deliberation was not extraneous influence). In Commonwealth v. Guisti, 434 Mass. 245, 747 N.E.2d 673 (2001), the court offered further guidance by defining the concept of an “extraneous matter.” “An extraneous matter is one that involves information not part of the evidence at trial and raises a serious question of possible prejudice” (citations and quotation omitted). Id. at 251, 747 N.E.2d at 679. Some illustrations of this concept include “(1) unauthorized views of sites by jurors; (2) improper communications to the jurors by third persons; or (3) improper consideration of documents not in evidence” (citations omitted). Commonwealth v. Fidler, 377 Mass. at 197, 385 N.E.2d at 517.
Procedure for Determining Whether Jury Was Influenced by an “Extraneous Matter.” A party alleging that a jury was exposed to a significant extraneous influence “bears the burden of demonstrating that the jury were in fact exposed to the extraneous matter. To meet this burden he may rely on juror testimony.” Commonwealth v. Fidler, 377 Mass. at 201, 385 N.E.2d at 519. However, lawyers must observe Rule 3.5(d) of the Massachusetts Rules of Professional Conduct, Supreme Judicial Court Rule 3:07, which forbids lawyers from initiating contact with a member of the jury after discharge of the jury “without leave of court granted for good cause shown.” Rule 3.5(d) provides further that
“[i]f a juror initiates a communication with such a lawyer, directly or indirectly, the lawyer may respond provided that the lawyer shall not ask questions of or make comments to a member of that jury that are intended only to harass or embarrass the juror or to influence his or her actions in future jury service. In no circumstances shall such a lawyer inquire of a juror concerning the jury’s deliberation processes.”
Id. Further inquiry by the court is not required where “there has been no showing that specific facts not mentioned at trial concerning one of the parties or the matter in litigation were brought to the attention of the deliberating jury” (emphasis and quotations omitted). Commonwealth v. Drumgold, 423 Mass. 230, 261, 668 N.E.2d 300, 320 (1996). See Commonwealth v. McQuade, 46 Mass. App. Ct. 827, 833, 710 N.E.2d 996, 1001 (1999). “The question whether the party seeking an inquiry has made such a showing is properly addressed to the discretion of the trial judge.” Commonwealth v. Dixon, 395 Mass. 149, 152, 479 N.E.2d 159, 162 (1985). Because there is always a danger that when questioned about the existence of an extraneous matter a jury will respond
“with an answer that inappropriately reveals aspects of the deliberations[, g]iving cautionary instructions to each juror at the outset of the inquiry and, if necessary, again during the inquiry will reduce the likelihood of answers that stray into revelation of the jury’s thought process. The jurors can be instructed to respond about any information that was not mentioned during the trial (appropriate), but not to describe how the jurors used that information or the effect of that information on the thinking of any one or more jurors (inappropriate). Once any juror has established that extraneous information was mentioned, by whom, and whether anyone said anything else about the extraneous information (not what they thought about it or did with it), the inquiry of that juror is complete. As soon as the judge determines that the defendant has satisfied his burden of establishing the existence of an extraneous influence, the questioning of all jurors should cease.”
Commonwealth v. Kincaid, 444 Mass. 381, 391–392, 828 N.E.2d 45, 53 (2005).
Ethnic or Racial Bias. When the defendant files an affidavit from one or more jurors stating that another juror made a statement “that reasonably demonstrates racial or ethnic bias” and the jury’s credibility is at issue, the judge must first determine whether the defendant has proved by a preponderance of the evidence that the juror made the biased statement. Commonwealth v. McCowen, 458 Mass. 461, 494, 939 N.E.2d 735, 764 (2010). Second, if the answer to the first question is “yes,” the judge must determine whether the defendant has proved by a preponderance of the evidence
“that the juror who made the statements was actually biased because of the race or ethnicity of a defendant, victim, defense attorney, or witness. A juror is actually biased where her racial or ethnic prejudice, had it been revealed or detected at voir dire, would have required as a matter of law that the juror be excused from the panel for cause.” (Citations omitted.)
Id. at 495, 939 N.E.2d at 764–765.
“In some instances, the statement made by the juror may establish so strong an inference of a juror’s actual bias that proof of the statement alone may suffice. Generally, though, the judge must determine the precise content and context of the statement to determine whether it reflects the juror’s actual racial or ethnic bias, or whether it was said in jest or otherwise bore a meaning that would fail to establish racial bias. Because actual juror bias affects the essential fairness of the trial, a defendant who has established a juror’s actual bias is entitled to a new trial without needing to show that the juror’s bias affected the jury’s verdict.” (Citations omitted.)
Id. at 496, 939 N.E.2d at 765. Third, even if the defendant fails to prove that the juror was actually biased, if the answer to the first question is “yes,” the judge must determine “whether the statements so infected the deliberative process with racially or ethnically charged language or stereotypes that it prejudiced the defendant’s right to have his guilt decided by an impartial jury on the evidence admitted at trial” (citations omitted). Id. at 496–497, 939 N.E.2d at 765. Even though racial or ethnic bias is not an extraneous matter, see Commonwealth v. Laguer, 410 Mass. 89, 97, 571 N.E.2d 371, 376 (1991), this third question is subject to the same analysis used to evaluate extraneous influences on the jury. If the defendant meets his or her burden of establishing that the statement was made, “the burden then shifts to the Commonwealth to show beyond a reasonable doubt that the defendant was not prejudiced by the jury’s exposure to these statements.” Commonwealth v. McCowen, 458 Mass. at 497, 939 N.E.2d at 766. In making this determination, the judge must not receive any evidence concerning the effect of the statement on the thought processes of the jurors, but instead must focus on its “probable effect” on a “hypothetical average jury.” Id.
Discharge of a Juror During Empanelment. Even prior to trial, a potential juror who may not be impartial due to the effect of an extraneous matter such as bias or prejudice may be excused by the court. See G. L. c. 234, § 28; G. L. c. 234A, § 39; Mass. R. Crim. P. 20(b)(2). If the jury has not been sworn, the judge has discretion to excuse a juror without a hearing or a showing of extreme hardship based on information that the juror may not be indifferent. See Commonwealth v. Gambora, 457 Mass. 715, 731–732 , 933 N.E.2d 50, 62–63 (2010) (juror dismissed based on report by court officer that she was observed in the hallway during a break speaking to persons who then joined a group which included members of the defendant’s family); Commonwealth v. Duddie Ford Inc., 409 Mass. 387, 392, 566 N.E.2d 1119, 1122 (1991). “It is generally within the judge’s discretion . . . to determine when there exists a substantial risk that extraneous issues would influence the jury such that an individual voir dire of potential jurors is warranted.” Commonwealth v. Holloway, 44 Mass. App. Ct. 469, 472, 691 N.E.2d 985, 988 (1998). Although there is a presumption that a peremptory challenge of a prospective juror is proper, the Supreme Judicial Court has established guidelines that must be followed when it is shown that the peremptory challenge constitutes a pattern of excluding members of a discrete community group solely because of their membership in that group. See Commonwealth v. Benoit, 452 Mass. 212, 218–226, 892 N.E.2d 314, 319–326 (2008) (murder conviction reversed because peremptory challenge of a single African-American juror who happened to be the only such person in the venire constituted a pattern of group discrimination and because judge’s finding that “there are race neutral reasons which the Commonwealth has articulated which justify the challenge” was not sufficient).
Discharge of a Juror During Trial. “When a judge determines that the jury may have been exposed during the course of trial to material that ‘goes beyond the record and raises a serious question of possible prejudice,’ [the judge] should conduct a voir dire of jurors to ascertain the extent of their exposure to the extraneous material and to assess its prejudicial effect.” Commonwealth v. Francis, 432 Mass. 353, 369–370, 734 N.E.2d 315, 330 (2000), quoting Commonwealth v. Jackson, 376 Mass. 790, 800, 383 N.E.2d 835, 841 (1978). See, e.g., Commonwealth v. John, 442 Mass. 329, 339–340, 812 N.E.2d 1218, 1226 (2004) (no error in declining to discharge a juror who expressed personal fear due to the nature of the case); Commonwealth v. Maldonado, 429 Mass. 502, 506–507, 709 N.E.2d 809, 813 (1999) (judge did not abuse her discretion in removing one juror who expressed fear for her personal safety as a result of evidence of the defendant’s association with a gang).
“The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror’s exposure to the material and its effects on the juror’s ability to render an impartial verdict.”
Commonwealth v. Jackson, 376 Mass. at 800–801, 383 N.E.2d at 841–842. See Commonwealth v. Stewart, 450 Mass. 25, 39, 875 N.E.2d 846, 859 (2007) (trial judge acted properly in asking jury collectively whether anyone had seen anything while coming into or exiting the courtroom based on a court officer’s report that the door to the lockup had been left open while the defendant was inside a cell). The trial judge must, however, determine the nature of the extraneous matter before exercising discretion as to whether to discharge a juror. See Commonwealth v. Jackson, 376 Mass. at 800–801, 383 N.E.2d at 841–842 (individualized questioning of juror appropriate given concerns of exposure to prejudicial media publicity during the trial); Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 259, 776 N.E.2d 464, 469–470 (2002) (judge erred in accepting a juror’s note about a matter of extraneous influence without making inquiry of the juror). A judge has a duty to intervene promptly whenever he or she observes or receives a reliable report that a juror is asleep. Commonwealth v. Beneche, 458 Mass. 61, 77–79, 933 N.E.2d 951, 966 (2010). The judge has discretion as to the nature of the intervention and is not required to conduct a voir dire in every complaint regarding jury attentiveness. Id. at 78, 933 N.E.2d at 966.
Discharge of a Deliberating Juror. The problems associated with the effect of an extraneous matter on the jury also may arise before the jury returns a verdict. General Laws c. 234, § 26B, provides that if, at any time after a case has been submitted to the jury and before the jury have agreed on a verdict, a juror “dies, or becomes ill, or is unable to perform his duty for any other good cause shown to the court,” the judge may discharge the juror, substitute an alternate selected by lot, and permit the jury to renew their deliberations. See Mass. R. Crim. P. 20(d)(3). “[G]ood cause includes only reasons personal to a juror, that is, reasons unrelated to the issues of the case, the juror’s views on the case, or his relationship with his fellow jurors” (quotations omitted). Commonwealth v. Francis, 432 Mass. at 368, 734 N.E.2d at 328. The judge must conduct a voir dire of the affected juror with counsel and the defendant or the parties in a civil case. Commonwealth v. Connor, 392 Mass. 838, 845, 467 N.E.2d 1340, 1346 (1984). See Commonwealth v. McCowen, 458 Mass. 461, 488–489, 939 N.E.2d 735, 759 (2010) (after jury reported it was deadlocked, judge was warranted in removing deliberating juror based on a finding that a “palpable conflict” existed due to the arrest of the father of the juror’s son, who was being prosecuted by the same district attorney’s office that was prosecuting the case on trial). Great care must be taken in such cases that a dissenting juror is not allowed to avoid the responsibility of jury service. See, e.g., Commonwealth v. Rodriguez, 63 Mass. App. Ct. 660, 675–676, 828 N.E.2d 556, 566 (2005) (holding that discharge of deliberating juror was error).