TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 606, N.D.R.Ev., Competency of Juror as Witness
The U.S. Supreme Court has approved amendments to Fed.R.Ev. 606 and they will take effect December 1 unless Congress intervenes. Proposed amendments to Rule 606 have therefore been prepared for consideration by the Committee.
The proposed amendment would add language to the rule allowing juror testimony about whether there was a mistake in entering the verdict on the verdict form. The federal advisory committee indicates that courts generally permit jury testimony about errors in the verdict even though the rule is silent on this issue.
In Kerzmann v. Rohweder, 321 N.W.2d 84 (N.D. 1982), the North Dakota Supreme Court addressed a claim that a verdict had been entered incorrectly. In its opinion, the Kerzmann court discussed and analyzed allegations in a juror affidavit about the claimed mistake in entering the verdict. Given that the court accepted the affidavit in Kerzmann, the proposed new language for Rule 606 seems consistent with North Dakota law.
Amendments are also proposed for the explanatory note. The proposed amendments explain the changes to the rule and also update the content of the explanatory note.
A rule draft containing the proposed amendments is attached.