By Michael Hoenig - New York Law
Journal - July 13, 2015
Recent federal appellate decisions confirm that a litigant's
right to have a jury capable and willing to decide the case
solely on the evidence before it is a right of constitutional
proportions. Thus, when jurors receive extrinsic prejudicial
information the trial result may be gravely tainted. A new trial
may have to be ordered. This is reflected in a Fifth Circuit
decision weeks ago,
United States v. Mix, a criminal case in which
extraneous prejudicial information given to jurors was held to
violate the defendant's Sixth Amendment rights to an impartial
jury.1 Finding constitutional implications within a
criminal case context may not be so surprising.
Is there also a constitutional dimension, however, when the jury
considers extraneous prejudicial information in a civil case? A
federal appellate decision issued on April 24,
Bouret-Echevarria v. Caribbean Aviation Maintenance Corp.,2
suggests that the answer is "yes." Notably, the U.S. Court of
Appeals for the First Circuit held that a jury's improper
knowledge of a confidential settlement offer warranted an
evidentiary hearing, even some 18 months after the trial, to
determine whether the verdict of no liability for defendants in
a helicopter crash case was tainted. At the heart of the
decision was the appellate court's recognition that there may
have been a violation of due process with a jury prejudicially
influenced by forbidden information.
A ruling that a jury's extrinsic prejudicial knowledge about a
settlement offer can rise to a constitutional due process
dimension is remarkable. This article will discuss these new
rulings. But first we provide some general background on the
inadmissibility into evidence of settlement offers.
Everyone pretty much agrees that, ordinarily, jurors should not
be told about settlement offers the litigants may have
discussed. Indeed, institutional custom and common understanding
in this regard by courts and counsel is likely shaped by set
rules governing evidence and trial practice. Thus, Federal
Evidence Rule 408 (titled "Compromise Offers and Negotiations")
says evidence of a settlement offer is not admissible to prove
liability for or invalidity of the claim or its amount. Thus,
conduct or statements made in compromise negotiations, with
certain exceptions, are not admissible.
Similarly, state rules generally proscribe such evidence. Thus,
New York's CPLR 4547 (titled "Compromise and Offer to
Compromise"), for example, prohibits evidence regarding
settlements, attempts to compromise, statements made during
negotiations and the like in order to prove either liability or
invalidity of a claim or the amount of damages. These rules make
sense for logical, practical and policy reasons. After all, as
New York Supreme Court and Appellate Division Justice Helen E.
Freedman says in her masterful treatise, "New York Objections,"3
"Parties and counsel undertake settlement negotiations for many
reasons other than an admission of liability. Thus, such
negotiations have no evidentiary value." Further, says Freedman,
"[a]llowing references to settlements or settlement negotiations
during any portion of a trial would have a chilling effect on
The "chill" factor is no small consideration. Imagine a world in
which all settlement overtures, rejections, negotiations, or
acceptances from one defendant but not others were admissible
willy nilly. Litigants' freedom to explore, pursue or reject
settlements would be hampered. Nor would such a rule favoring
admissibility prejudice only one side. In some cases, a
defendant's settlement offer might be viewed by jurors as a kind
of admission of fault. Or, perhaps, the amount offered could be
deemed too low and insincere. Alternatively, in some cases,
plaintiffs might be the ones prejudiced, appearing to be too
greedy when rejecting an offer jurors may deem to have been
adequate. In addition, jurors might view a settlement concluded
with one defendant to have been sufficient, thus penalizing the
claimant for pursuing suit against still other defendants.
Despite agreement on the rules and common custom, violations
nevertheless do occur. Jurors sometimes do get information about
settlement overtures. Occasionally, a reference slips in via a
lawyer's opening statement or during a summation. Sometimes, the
forbidden matter is deftly attempted during the questioning of a
witness. In each scenario, the opposing counsel must be
vigilant. He or she should object immediately and ask the court
for a curative instruction. Perhaps, a motion for a mistrial
also needs to be advanced. The various tactical considerations,
proposed arguments counsel should make and supporting case law
are well presented in Justice Freedman's treatise.5
Occasionally, however, jurors get settlement offer information,
not from counsel's tactical efforts, but from extrinsic sources.
Then, the jurors' knowledge arguably falls under a larger
umbrella topic, namely, "juror misconduct." In addition to
Justice Freedman's book, an excellent, concise "how-to" guide on
dealing with juror misconduct is presented in the text called
"New York Trial Notebook" by Edward L. Birnbaum, Carl T. Grasso
and Justice Ariel E. Belen.6 Those writers say that,
in general, it is "very difficult" to attack a jury verdict for
juror misconduct. If the improper information is demonstrated to
have most probably affected the outcome, there may be grounds
for a new trial. Depending on the circumstances, a hearing to
examine the jurors may be justified.7
There are significant differences between scenarios where jurors
learn about the forbidden information from the attorneys as
opposed to outside sources. Courts are justifiably loath to
upset a jury trial where trial counsel is the source of jurors'
knowledge about settlement attempts. After all, the litigators
are obligated to know the rules prohibiting such references.
When the line is crossed, intentionally or not, the adversary
has an opportunity to note the misconduct and promptly move for
The "how-to" books advise to move quickly for a curative
instruction by the court to the jury or for a mistrial. If the
trial lawyer suspects his adversary might be an offender, he can
even move in limine before trial to alert the court to the
danger and ask for a specific admonition against the gambit.
Harsh consequences to the offender can flow from violating such
an in limine ruling.
The point is that counsel-caused prejudicial information can be
dealt with by an alert opponent and via some hasty remedial
action. The court is in a position to help minimize the
prejudice right away. The adversary system thus assumes lawyer
vigilance and action. In the digital era, a communications
universe populated by emails and loads of email strings, the
challenge for lawyers to be alert is increased. Buried within an
email string, there may be some reference to settlement offers,
discussions or negotiations. Without diligent screening of
communications offered into evidence, it is possible that
forbidden settlement information sneaks in. Even so, the lawyer
at least has an opportunity to prevent or cure the taint.
The situation seems qualitatively different when the settlement
information comes to jurors from an extrinsic source. In such
cases, the lawyers likely do not know that the jury's knowledge
has been infected. Indeed, an impropriety may never be known
since some jurisdictions or local court rules forbid post-trial
contacts with jurors without court permission. Such courts are
unlikely to allow juror interviews without a demonstrable
showing of need. A lawyer's suspicions, without more, do not
suffice. Even in jurisdictions or courts where post-trial juror
interviews are permitted, the fact that jurors may have received
extrinsic information about settlement offers may be uncovered
by the lawyer only a long time after trial.
The recent federal appellate decisions mentioned at the outset
illustrate the practical difficulties to uncover juror
misconduct, the efforts lawyers must make to obtain relief and
the effect of the time lag between the verdict and discovery of
the taint. In the criminal case, United States v. Mix,8
the U.S. Court of Appeals for the Fifth Circuit confirmed the
principle that the introduction of extraneous prejudicial
information into the jury room can violate a defendant's Sixth
Amendment right to an impartial jury and his Sixth Amendment
right to confrontation. Even one juror's prejudice is sufficient
to warrant a new trial.9 The case involved charges
against Kurt Mix, a BP engineer alleged to have deleted text
message strings with his supervisor following the Deepwater
Horizon oil spill accident. The messages concerned flow rates to
estimate how much oil was leaving the accident site each day.
The prosecution accused Mix of obstruction of justice in
deliberately destroying the messages. Mix contended that the
deletion was not nefarious. He was trying to delete a candid
photograph his supervisor took of him but unthinkingly deleted
the entire text string instead. The jury, after initial deadlock
and then a special court instruction, found Mix guilty. When
Mix's attorney later contacted jurors without court permission,
he learned from them that the jury foreperson announced that she
had overheard extrinsic information in the courthouse elevator.
This information, she told the jurors, gave her comfort in
voting guilty. Specifically, an unknown man on the elevator said
that Mix "was not the only person who was being prosecuted" and
that "there were going to be other trials" of BP employees.
Mix's counsel successfully filed a motion for a new trial. The
court held a hearing and ascertained that the foreperson had
clearly been troubled by the extrinsic information, that other
jurors were likely influenced and that the jurors' failure to
report the extrinsic evidence undermined the court's confidence
in their ability to follow other instructions such as the one to
disregard extrinsic evidence. The Fifth Circuit affirmed the
grant of a new trial. The juror's reference to non-record
evidence was, by definition, an injection of extrinsic
information even if it were fabricated.10 The
"generic" jury instructions about extrinsic evidence "did not
cure the prejudice."11 The statement by the person in
the elevator undermined Mix's theory that he innocently deleted
the text message so the extrinsic evidence was not harmless.12
In the Bouret-Echevarria decision by the First Circuit,13
a helicopter crash killed a passenger. His widow sued the
helicopter's manufacturer and repair company in products
liability, but the jury absolved the defendants. Prior to jury
deliberations, the widow's attorney received a confidential
settlement offer of $3.5 million from two defendants. The offer,
however, was rejected, and plaintiff lost at trial.
Sixteen months later, the widow's new attorney filed a motion
pursuant to Federal Rule of Civil Procedure 60(b)(6) seeking an
evidentiary hearing to assess a claim that extraneous
prejudicial information—namely plaintiff's rejection of the
significant settlement offer—was improperly injected into the
jury deliberations. The affidavits in support of the motion
reported that plaintiff's aviation expert, Luis Irizarry,
learned this when he provided expert services in an unrelated
aviation case. Irizarry said he met an individual who claimed to
be the employer of a juror in the plaintiff's case.
The employer told Irizarry that his employee (the juror)
informed him that the jury declined to award plaintiff any money
damages because the jurors knew she had been offered and
rejected a $3.5 million settlement. Irizarry told this to
plaintiff's trial counsel who, in turn, informed plaintiff. The
plaintiff widow then retained a new attorney and, after some
delay, the motion for a Rule 60(b)(6) hearing was filed. The
trial judge denied the motion. He held that the 18-month period
between entry of final judgment and the motion made the motion
"untimely." Even though Rule 60(b)(6) has no specific time
limit, the delay here "pushes against reasonableness." The judge
also held that the evidence of tainted jury deliberations was
only hearsay and insufficient.14
The First Circuit panel majority disagreed. It reversed and
ordered an evidentiary hearing. It called the trial court's
conclusion that "the value of due process must necessarily be
sacrificed for the value of finality" a "flawed ruling" which
was an abuse of discretion.15 Quite notable is the
appellate court's recognition that "[i]f a jury is aware of and
bases its decision on knowledge of a confidential settlement
offer, there has been a violation of due process."16
Due process "means a jury capable and willing to decide the case
solely on the evidence before it, and a trial judge ever
watchful to prevent prejudicial occurrences and to determine the
effect of such occurrences when they happen." Indeed, the law's
mechanisms that permit exploration of the influence of
extraneous information upon jury deliberations are, in part, a
"recognition of the due process implications of a tainted jury."17
In its footnote 6, the court explained its citation of precedent
in a criminal case saying, "we see no reason why this principle
for assessing the significance of juror misconduct should not
The foregoing recent decisions show that extraneous
prejudicial information learned by jurors can implicate
constitutional principles. In criminal cases, the Sixth
Amendment may demand a court inquiry and court redress if
warranted. In civil cases, jurors' knowledge of a settlement
offer can involve a due process violation that also may justify
an evidentiary hearing and extraordinary relief. Given the
difficulties attorneys have in uncovering jurors' extraneous
prejudicial information about settlement offers and the problem
of passage of time, having a powerful constitutional arrow in
the attorney's quiver may be a comforting thought.
1. United States v. Mix, 2015 U.S. App. LEXIS 11267
(5th Cir. June 30, 2015).
2. 2015 U.S. App. LEXIS 6829 (1st Cir. April 24, 2015).
3. §3:150, at p. 3-20 (James Publ. 2013).
4. Justice Helen E. Freedman, "New York Objections" §3:150, at
p. 3-20 (citing Sabin-Goldberg v. Horn, 179 A.D.2d 462,
578 N.Y.S.2d 187 (1st Dept. 1992)); see also §19:150, at pp.
19-36 (circumstances surrounding settlement decisions are
totally unrelated to factors a jury must consider in assessing
value or determining liability; e.g., a defendant may pay more
to settle in order to avoid punitive damages or to settle a
group of cases; a plaintiff may take less from a particular
defendant because of underlying insurance issues or fear that
the defendant will become insolvent).
5. Id., at §§3:150 and 19:150.
6. See Chapters 19, 36 and 38 discussing various aspects of
juror misconduct and Chapter 29, at §29:54 dealing with
settlements and offers to compromise. (James Publishing 2014).
7. See generally, Birnbaum, Grasso and Belen, "New York Trial
Notebook," §38:56 (citing and summarizing many New York
decisions); §19:80 (discussing remedies for juror misconduct);
§19:81 (citing cases and describing actions constituting
misconduct by jurors); §36:40 (case examples where no mistrial
was required); and §29:54 (cases regarding evidence on
8. 2015 U.S. App. LEXIS 11267 (5th Cir. June 30, 2015).
9. Mix, Id., LEXIS at *8 (citing and quoting from
Parker v. Gladden, 385 U.S. 363, 364-66 (1966) (per curiam)).
10. Id., LEXIS at *13.
11. Id., LEXIS at *18.
12. Id., LEXIS at *24.
13. n. 2 supra, 2015 U.S. App. LEXIS 6829 (1st Cir. April 24,
14. Id., LEXIS at *5-*6.
15. Id., LEXIS at *30.
16. Id., LEXIS at *15 (quoting from Smith v. Phillips,
455 U.S. 209, 217 (1982)).
17. Id., LEXIS at *17-*18.
18. Id., LEXIS at *18 n. 6.
Printer Friendly Version
Back to Archive
125 Broad Street, New York, New York, 10004 - Phone: 212-471-8500 - Fax: 212-344-3333©2004 -2014 Herzfeld & Rubin, P.C.