O.C.G.A. § 24-6-606 (2019)

Annotations

Cross references. Action by juror on private knowledge as to facts, witnesses, or parties, § 17-9-20. Juror’s competency as a witness, Fed. R. Evid. 606. Law reviews. For article, “Juror’s Testimony to Set Aside Verdict in Georgia,” see 11 Ga. B.J. 408 (1949). For article, “Justice and Juror,” see 20 Ga. L. Rev. 257 (1986). For article, “Evidence,” see 27 Ga. St. U. L. Rev. 1 (2011).

For article, “Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence,” see 63 Mercer L. Rev. 1 (2011). For article, “Georgia’s New Evidence Code: After the Celebration, a Serious Review of Anticipated Subjects of Litigation to be Brought on by the New Legislation,” see 64 Mercer L. Rev. 1 (2012). For note, “Addressing Racial Bias in the Jury System: Another Failed Attempt?,” see 35 Ga. St. U.L. Rev. 843 (2019). For annual survey on evidence, see 71 Mercer L. Rev. 103 (2019).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION STATEMENTS BY JURORS PRACTICE AND PROCEDURE General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, §§ 5337, 5338, former Civil Code 1910, § 5933, former Code 1933, §§ 110-108, 110-109, and former O.C.G.A. §§ 9-10-9 and 17-9-41 are included in the annotations for this Code section. The reader is advised to consult the annotations following Code Section 17-9-20, which may also be applicable to this Code section. Member of jury impaneled to try case is not debarred from testifying in such case as a witness, if otherwise competent. Savannah, F. & W. Ry. v. Quo, 103 Ga. 125, 29 S.E. 607, 1897 Ga. LEXIS 373 (1897) (decided under former Civil Code 1895, § 5337).

Jurors themselves may be sworn as witnesses without disqualifying themselves from serving as jurors in the case. Williams v. Barnes, 181 Ga. 514, 182 S.E. 897, 1935 Ga. LEXIS 147 (1935) (decided under former Code 1933, § 110108). Juror cannot impeach verdict, except when Sixth Amendment protections applicable. - As a matter of public policy, a juror cannot be heard to impeach the juror’s verdict, either by way of disclosing the incompetency or misconduct of fellow jurors, or by showing the juror’s own misconduct or disqualification from any cause. The only exception to the firm application of this rule is when protections provided a criminal defendant by the Sixth Amendment are applicable. Lozynsky v. Hairston, 168 Ga. App. 276,

General Consideration (Cont’d) 308 S.E.2d 605, 1983 Ga. App. LEXIS 2749 (1983) (decided under former O.C.G.A. § 9-10-9). Verdict cannot be impeached by affidavits of the jurors. Shippen v. Thompson, 45 Ga. App. 736, 166 S.E. 41, 1932 Ga. App. LEXIS 679 (1932) (decided under former Civil Code 1910, § 5933). When the jury was instructed to return a verdict for the full amount of damages due appellee without deducting the settlement, affidavits from members of the jury (averring that the jury deducted the settlement before making an award) worked to impeach, rather than sustain, the verdict. The trial court’s entry of judgment in accordance with the affidavits thus impermissibly added to the jury’s verdict. King Cotton, Ltd. v. Powers, 190 Ga. App. 845, 380 S.E.2d 481, 1989 Ga. App. LEXIS 452 (1989) (decided under former O.C.G.A. § 9-10-9). General partners’ (GPs’) motion for a new trial was properly denied as the juror affidavits filed by the GPs outlining alleged juror misconduct constituted an attempt to impeach the jury’s verdict in the exact manner prohibited by former O.C.G.A. § 9-10-9. Kellett v. Kumar, 281 Ga. App. 120, 635 S.E.2d 310, 2006 Ga. App. LEXIS 895 (2006) (decided under former O.C.G.A. § 9-10-9). Affidavits as to statements after dispersing. - Jurors cannot impeach their verdict, and affidavits by members of the jury or of counsel, as to their sayings after dispersing, cannot be received for that purpose. Wade v. State, 12 Ga. 25, 1852 Ga. LEXIS 86 (1852) (decided under former law); Corbin v. McCrary, 22 Ga. App. 472, 96 S.E. 445, 1918 Ga. App. LEXIS 559 (1918) (decided under former Civil Code 1910, § 5933); Rylee v. State, 28 Ga. App. 230, 110 S.E. 749, 1922 Ga. App. LEXIS 414 (1922) (decided under former Civil Code 1910, § 5933). Jurors’ statements upon reassembling cannot alter plain import of verdict. - After the jury has published their verdict and dispersed, their expressions, on being reassembled, as to the intent of the jury’s verdict, cannot add to or change the plain import and intent of the verdict.

Ryner v. Duke, 205 Ga. 280, 53 S.E.2d 362, 1949 Ga. LEXIS 351 (1949) (decided under former Code 1933, § 110-109). Jurors using cell phones to look up information. - Parents’ motion for a new trial was properly denied because no testimony was elicited regarding the substance of the definitions found by jurors using cellphones, and no showing has been made that the information obtained was prejudicial, or even that the information differed from the trial court’s written instructions which went out with the jury. Armstrong v. Gynecology & Obstetrics of DeKalb, P.C., 327 Ga. App. 737, 761 S.E.2d 133, 2014 Ga. App. LEXIS 415 (2014). Jurors’ affidavits which attempted to establish mistake as to the meaning of instructions and in effect impeached their verdict could not be considered. Perryman v. Rosenbaum, 205 Ga. App. 784, 423 S.E.2d 673, 1992 Ga. App. LEXIS 1381 (1992) (decided under former O.C.G.A. § 9-10-9). Juror’s affidavits as to special findings impermissible on motion for new trial of tort action. - Court errs, in a tort case, in allowing and considering, upon the hearing of the defendant’s motion for new trial, affidavits of the jurors as to what findings the jurors had made in reaching their verdicts, since the effect of such affidavits is to amend the verdict into special findings of fact, and special verdicts are only permissible in equity cases. Davison-Paxon Co. v. Archer, 91 Ga. App. 131, 85 S.E.2d 182, 1954 Ga. App. LEXIS 880 (1954) (decided under former Code 1933, § 110-109). Juror’s affidavits concerning reenactment of crime. - State death row inmate’s claim that the state habeas court should have considered the affidavits of jurors in connection with the inmate’s argument that the jury considered nonrecord evidence when the state reenacted the crime at the murder scene failed because considering the affidavits would have violated former O.C.G.A. §§ 9-10-9 and 17-9-41, and the trial judge had specifically precluded the state from reenacting the crime at the jury’s viewing of the scene. Crowe v. Terry, 426 F. Supp. 2d 1310, 2005 U.S. Dist. LEXIS 41532 (N.D.

Ga. 2005), aff’d, 490 F.3d 840, 2007 U.S. App. LEXIS 15250 (11th Cir. 2007) (decided under former O.C.G.A. § 9-10-9). Defendant in error under no duty to produce jurors’ affidavits on motion for new trial. - When there is no prima-facie showing that the verdict is a compromise, no duty rests on the defendant in error to produce at the hearing of the motion for a new trial any affidavits of the jurors to uphold the verdict. North British & Mercantile Ins. Co. v. Parnell, 53 Ga. App. 178, 185 S.E. 122, 1936 Ga. App. LEXIS 33 (1936) (decided under former Code 1933, § 110-109). Required showing for setting aside verdict arrived at by chance. - In order to authorize the setting aside of a verdict upon the ground that it was arrived at by chance, it must affirmatively appear that the jurors bound themselves in advance to arrive at the verdict in this manner, and that the jurors in fact did so. City of Columbus v. Ogletree, 102 Ga. 293, 29 S.E. 749, 1897 Ga. LEXIS 504 (1897) (decided under former Civil Code 1895, § 5338). Juror will not be heard to claim verdict result of mistake or misunderstanding of evidence. - That a verdict was caused by mistake or a misunderstanding of the evidence, as disclosed by a member of the jury, will not be heard. Bowman v. Bowman, 230 Ga. 395, 197 S.E.2d 372, 1973 Ga. LEXIS 927 (1973) (decided under former Code 1933, § 110109). Nothing from juror will be heard to impeach verdict. - Nothing coming from a juror, either directly or indirectly, in the way of a narrative with respect to the manner in which a verdict was arrived at will be heard to impeach the verdict. Southern Ry. v. Sommer, 112 Ga. 512, 37 S.E. 735, 1900 Ga. LEXIS 222 (1900) (decided under former Civil Code 1895, § 5338); Corbin v. McCrary, 22 Ga. App. 472, 96 S.E. 445, 1918 Ga. App. LEXIS 559 (1918) (decided under former Civil Code 1910, § 5933); Rylee v. State, 28 Ga. App. 230, 110 S.E. 749, 1922 Ga. App. LEXIS 414 (1922) (decided under former Civil Code 1910, § 5933). It is settled beyond all possibility of dispute that a juror will not be heard to

impeach the juror’s verdict. Swift v. S.S. Kresge Co., 159 Ga. App. 571, 284 S.E.2d 74, 1981 Ga. App. LEXIS 2698 (1981) (decided under former Code 1933, § 110109). In a trespass case, a trial court properly refused to consider a juror’s affidavit regarding sympathy for an opposing party because such evidence could not have been considered to impeach the verdict. Bullard v. Bouler, 272 Ga. App. 397, 612 S.E.2d 513, 2005 Ga. App. LEXIS 244 (2005) (decided under former O.C.G.A. § 9-10-9). Including oral testimony at hearing. - Prohibition against the impeachment by a juror of the juror’s verdict extends to oral testimony offered at a hearing. Pie Nationwide, Inc. v. Prickett, 189 Ga. App. 77, 374 S.E.2d 837, 1988 Ga. App. LEXIS 1268 (1988) (decided under former O.C.G.A. § 9-10-9); Riddle v. Becker, 232 Ga. App. 393, 501 S.E.2d 893 (decided under former O.C.G.A. § 9-10-9). After verdict has been received and jury has dispersed, juror will never be heard to say that the juror did not agree to the verdict. Sims v. Sims, 113 Ga. 1083, 39 S.E. 435, 1901 Ga. LEXIS 496 (1901) (decided under former Civil Code 1895, § 5338). Affidavits showing communication between jury and sheriff not to be considered. - So much of the affidavits of the jurors as tended to show that the deputy sheriff or the bailiff had improper communications with the jury could not be considered by the judge in passing upon the issue as to whether such communications were had with the jury. Tolbirt v. State, 124 Ga. 767, 53 S.E. 327, 1906 Ga. LEXIS 608 (1906) (decided under former Civil Code 1895, § 5338). Allegations of untruthful answers to voir dire questions. - While allegations that a juror gave untruthful answers to questions propounded on voir dire furnish a valid basis for reversal, such averments must be supported by evidence of probative value. Affidavits by fellow jurors do not meet this requirement. Fidelity Nat’l Bank v. Kneller, 194 Ga. App. 55, 390 S.E.2d 55, 1989 Ga. App. LEXIS 1693 (1989) (decided under former O.C.G.A. § 9-10-9). Affidavits from third persons not to be considered. - If a verdict may not be

General Consideration (Cont’d) impeached by an affidavit of one or more of the jurors who found it, certainly it cannot be impeached by affidavits from third persons establishing the utterance by a juror of remarks tending to impeach the juror’s verdict; hence, the affidavit of a party that some of the jurors told the party the verdict was caused by a mistake furnishes no cause to set the verdict aside. Corbin v. McCrary, 22 Ga. App. 472, 96 S.E. 445, 1918 Ga. App. LEXIS 559 (1918) (decided under former Civil Code 1910, § 5933); Rylee v. State, 28 Ga. App. 230, 110 S.E. 749, 1922 Ga. App. LEXIS 414 (1922) (decided under former Civil Code 1910, § 5933); Ward v. Morris, 159 Ga. 526, 126 S.E. 291, 1925 Ga. LEXIS 10 (1925) (decided under former Civil Code 1910, § 5933). New trial granted based on affidavit of a nonjuror. - Affiant’s testimony as to a juror calling affiant during deliberations to request information about a case did not run afoul of former O.C.G.A. § 9-10-9 because the affiant was neither a juror offering testimony to impeach the affiant’s own verdict nor a third-party witness testifying about the hearsay, impeaching statements of the jurors; rather, the affiant was a nonjuror witness to the actual misconduct. Dryman v. Watts, 268 Ga. App. 710, 603 S.E.2d 51, 2004 Ga. App. LEXIS 994 (2004), cert. denied, No. S04C2052, 2004 Ga. LEXIS 974 (Ga. Oct. 25, 2004). It was not error to exclude an affidavit of a juror as to conduct of the foreman, made for the purpose of impeaching the verdict. Landers v. Cobb, 150 Ga. 80, 102 S.E. 428, 1920 Ga. LEXIS 45 (1920) (decided under former Civil Code 1910, § 5933). Juror’s statements that jury considered matter which was not in evidence will not be received for the purpose of impeaching the verdict. Rylee v. State, 28 Ga. App. 230, 110 S.E. 749, 1922 Ga. App. LEXIS 414 (1922) (decided under former Civil Code 1910, § 5933). Affidavit of juror will not be received to show that the jurors in arriving at their verdict acted upon private knowledge or upon matters which were

not in evidence. Central of Ga. R.R. v. Nash, 150 Ga. App. 68, 256 S.E.2d 619, 1979 Ga. App. LEXIS 2097, cert. dismissed, 244 Ga. 495, 260 S.E.2d 909, 1979 Ga. LEXIS 1307 (1979) (decided under former Code 1933, § 110-109); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883, 1980 Ga. App. LEXIS 2573 (1980) (decided under former Code 1933, § 110-109). Public policy prohibits jurors from impeaching their verdicts. - As a matter of public policy, a juror cannot be heard to impeach the juror’s verdict, either by way of disclosing the incompetency or misconduct of the juror’s fellow jurors or by showing the juror’s own misconduct or disqualification from any cause. Pope v. State, 28 Ga. App. 568, 112 S.E. 169, 1922 Ga. App. LEXIS 702 (1922) (decided under former Civil Code 1895, § 5933). Juror’s incompetency or disqualification. - Juror will not be heard to impeach the juror’s verdict by showing the juror’s own incompetency or disqualification. Moore v. Keller, 153 Ga. App. 651, 266 S.E.2d 325, 1980 Ga. App. LEXIS 1934 (1980) (decided under former Code 1933, § 110-109); Worthy v. Kendall, 232 Ga. App. 528, 501 S.E.2d 515, 1998 Ga. App. LEXIS 566 (1998), cert. denied, No. S98C1433, 1998 Ga. LEXIS 975 (Ga. Oct. 2, 1998) (decided under former O.C.G.A. § 9-10-9). Juror cannot impeach own verdict. - In a defendant’s motion for a new trial based on newly discovered evidence, the introduction of a newly discovered witness was not allowed simply because this testimony would have produced a different result at trial because two jurors said that the testimony would have caused a different result; a juror cannot impeach their verdict. Allain v. State, 202 Ga. App. 706, 415 S.E.2d 315, 1992 Ga. App. LEXIS 141 (1992) (decided under former O.C.G.A. § 9-10-9). It was error for the trial court to fail to qualify the jury in an excess carrier insurance case, and that error was not cured by the post-verdict offhand questioning of the jury as to possible relationships with officers or employees of the insurance company, since stockholders were not included

in the relationships questioning and, more importantly, jurors are unable to impeach their own findings after a verdict by showing their own disqualification. Lewis v. Emory Univ., 235 Ga. App. 811, 509 S.E.2d 635 (decided under former O.C.G.A. § 9-10-9). Jurors’ post-trial questions. - Murder defendant’s claim of juror misconduct based on several jurors’ post-trial questions as to why the co-defendant had not testified was rejected because neither the attorneys’ impressions that the jurors considered the failure to testify during their deliberations nor the jurors’ own testimony about their deliberations was admissible under O.C.G.A. § 24-6-606(b). Collins v. State, 308 Ga. 608, 842 S.E.2d 811, 2020 Ga. LEXIS 342 (2020). Juror’s affidavit concerning defendant’s mailing the juror’s dividends. - When the juror in question stated in an affidavit that the juror had not been influenced by the mailing of dividends to the juror by the defendant and that the juror had not revealed it to the other jurors, the trial court was authorized to conclude that the jury had not been influenced by the conduct of the defendant and that the plaintiff’s right to a fair and impartial trial had not been violated. Wright v. Satilla Rural Elec. Coop., 179 Ga. App. 230, 345 S.E.2d 892, 1986 Ga. App. LEXIS 1876 (1986) (decided under former O.C.G.A. § 9-10-9). Statute had a valid and salutary application in disallowing jurors to impeach the jurors’ verdicts on the basis of statements made to one another in the jury room and the effect of those statements upon the minds of the individual jurors. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883, 1980 Ga. App. LEXIS 2573 (1980) (decided under former Code 1933, § 110109). Verdict impeached. - Trial court’s decision to grant a motion for new trial based on the testimony of two original jurors that the jury foreperson personally investigated the scene of an accident impeached the verdict which the jurors had returned. Newson v. Foster, 261 Ga. App. 16, 581 S.E.2d 666, 2003 Ga. App. LEXIS 513 (2003) (decided under former O.C.G.A. § 9-10-9).

Purpose of former section was plainly to prohibit after-the-fact picking at the negotiating positions of the jurors and of the jurors attempts to persuade one another. Aguilar v. State, 240 Ga. 830, 242 S.E.2d 620, 1978 Ga. LEXIS 843 (1978) (decided under former Code 1933, § 110109). Public policy considerations. - As a matter of public policy, a juror cannot be heard to impeach the juror’s own verdict, either by way of disclosing the incompetency or misconduct of fellow jurors, or by showing the juror’s own misconduct or disqualification from any cause. Pope v. State, 28 Ga. App. 568, 112 S.E. 169, 1922 Ga. App. LEXIS 702 (1922) (decided under former Civil Code 1910, § 5933); Bissell v. State, 153 Ga. App. 564, 266 S.E.2d 238, 1980 Ga. App. LEXIS 1902 (1980), overruled in part, Middleton v. State, 309 Ga. 337, 846 S.E.2d 73, 2020 Ga. LEXIS 476 (2020) (decided under former Code 1933, § 110-109). It was well settled, as a matter of public policy, that a juror would not be heard to impeach the juror’s verdict by showing the juror’s own incompetency or disqualification. Reece v. State, 208 Ga. 690, 69 S.E.2d 92, 1952 Ga. LEXIS 314 (1952) (decided under former Code 1933, § 110-109). There were a number of important public policy considerations underlying the former section. Among those considerations were: the need to keep inviolate the sanctity of juror deliberations; the desirability of promoting the finality of jury verdicts; and the necessity of protecting jurors from posttrial harassment. Watkins v. State, 237 Ga. 678, 229 S.E.2d 465, 1976 Ga. LEXIS 1352 (1976) (decided under former Code 1933, § 110-109). Fairness and effect of section generally. - Rule of the former section was recognized, regardless of the fairness or unfairness thereof. Its effect was that jurors who contend the jurors were not influenced by the improper remarks may swear to that effect. If the truth was to the contrary, the jurors’ lips were sealed. Its further effect was that jurors who were asked the question were called upon either to refuse to answer, which meant the jurors were influenced in violation of the jurors’ oaths, or to swear that the jurors

General Consideration (Cont’d) were not influenced. King v. State, 92 Ga. App. 616, 89 S.E.2d 585, 1955 Ga. App. LEXIS 665 (1955) (decided under former Code 1933, § 110-109). Exceptions were narrowly permitted. - Exceptions were narrowly permitted to the general rule that affidavits of jurors could be taken to sustain but not to impeach the juror’s verdict. Nichols v. State, 234 Ga. App. 553, 507 S.E.2d 793 (decided under former O.C.G.A. § 17-941). Defendant’s appellate counsel was not entitled to access to the juror contact information for the purpose of determining whether alleged premature deliberations had an effect on the jury’s verdict, convicting defendant of multiple crimes, as defendant failed to request that the jurors be questioned individually at the time that the deliberations were reported to the trial court, and there was no indication that anything had occurred that might effect any juror’s ability to be fair and impartial in deliberations; exceptions to the rule that affidavits of jurors may be taken to sustain but not to impeach the jury’s verdict, pursuant to former O.C.G.A. § 17-9-41, were not applicable. Rogers v. State, 271 Ga. App. 698, 610 S.E.2d 679, 2005 Ga. App. LEXIS 139 (2005) (decided under former O.C.G.A. § 17-9-41). Statements by Jurors Inconsistent statement by jury foreperson following verdict. - Statement made by the jury foreperson following the rendering of the jury verdict of guilty, even assuming that the statement was inconsistent with the verdict of guilty, cannot impeach the verdict. Mangrum v. State, 155 Ga. App. 334, 270 S.E.2d 874, 1980 Ga. App. LEXIS 2570 (1980) (decided under former Code 1933, § 110-109). Testimony that the jury foreperson injected improper legal concepts into the jury’s deliberation was not admissible to impeach the jury’s verdict. Moore v. State, 224 Ga. App. 797, 481 S.E.2d 892 (decided under former O.C.G.A. § 17-941). Trial court’s refusal to allow a defendant to impeach the verdict with testi-

mony about alleged juror misconduct was proper because the exceptions to former O.C.G.A. § 17-9-41 did not include the jurors’ provision of legal information to other jurors or jurors’ misapprehension or confusion regarding the law. Perry v. State, 276 Ga. 836, 585 S.E.2d 614, 2003 Ga. LEXIS 489, rev’d in part, 276 Ga. 839, 584 S.E.2d 253, 2003 Ga. LEXIS 625 (2003) (decided under former O.C.G.A. § 17-9-41). Verdict based on private knowledge or matters not in evidence. - Affidavit of a juror will not be received to show that the jurors in arriving at their verdict acted upon private knowledge or upon matters which were not in evidence. Alley v. State, 99 Ga. App. 322, 108 S.E.2d 282, 1959 Ga. App. LEXIS 846 (1959) (decided under former Code 1933, § 110109); Emmett v. State, 243 Ga. 550, 255 S.E.2d 23, 1979 Ga. LEXIS 986 (1979) (decided under former Code 1933, § 110109). Juror’s statements to the effect that the jury considered matter not in evidence will not be received for the purpose of impeaching the juror’s verdict. Rylee v. State, 28 Ga. App. 230, 110 S.E. 749, 1922 Ga. App. LEXIS 414 (1922) (decided under former Civil Code 1910, § 5933). Jury foreperson’s testimony that the jury considered an unsupported comment made by the state’s attorney during the attorney’s opening statement did not entitle defendants to a new trial. Stokes v. State, 232 Ga. App. 232, 501 S.E.2d 599 (decided under former O.C.G.A. § 17-941). Juror’s affidavit in which juror claimed the juror only voted on one count of indictment did not suffice to impeach verdict. Dansby v. State, 165 Ga. App. 41, 299 S.E.2d 579, 1983 Ga. App. LEXIS 3105 (1983) (decided under former O.C.G.A. § 17-9-41). Post-verdict letter stating that juror felt coerced during deliberations. - Juror’s post-verdict letter to the trial judge stating that the juror felt coerced during deliberations by the court’s Allen charge was incompetent to impeach a verdict of guilt presented by the jurors in open court. Wilson v. State, 211 Ga. App. 457, 439 S.E.2d 685, 1993 Ga. App. LEXIS

1541 (1993), cert. denied, No. S94C0449, 1994 Ga. LEXIS 543 (Ga. Feb. 28, 1994) (decided under former O.C.G.A. § 17-941). Trial court did not abuse discretion giving Allen charge. - Defendant’s convictions on numerous child-sex offenses was upheld because the fact that the defendant was not acquitted of any of the charged offenses was not enough to establish that the trial court abused the court’s discretion in giving the Allen charge. Marshall v. State, 361 Ga. App. 357, 864 S.E.2d 469, 2021 Ga. App. LEXIS 488 (2021). Coercion of jury members by other jury members. - Trial court properly refused to consider testimony from a juror who claimed that the juror’s vote for a guilty verdict resulted from coercive pressure applied by other members of the jury; the proffered testimony was not within any exception to the general rule that jurors were incompetent to impeach their own verdict. Roebuck v. State, 277 Ga. 200, 586 S.E.2d 651, 2003 Ga. LEXIS 795 (2003) (decided under former O.C.G.A. § 17-9-41). Juror affidavit as to jury’s own investigation. - Although a defendant complained that the court failed to instruct the jury not to conduct an investigation of their own, no request for such a charge was made when the jury dispersed for the night; thus, the defendant’s attempt to show this extracurricular activity by the affidavit of a juror was not permitted. Lord v. State, 194 Ga. App. 749, 392 S.E.2d 17, 1990 Ga. App. LEXIS 299 (1990) (decided under former O.C.G.A. § 17-9-41). Juror’s personal knowledge of the crime scene. - Alleged irregular conduct was not so prejudicial so as to have rendered the trial fundamentally unfair and to have contributed to the conviction since: (1) even if the court were to assume that one or more jurors related personal knowledge of the crime scene to the jury, there was no evidence regarding exactly what that information was or how it related to the jury’s deliberations regarding any particular defendant; (2) there was no evidence that the jurors who allegedly provided this extrajudicial information at-

tempted to sway other jurors with the information; and (3) two witnesses said that such information did not contribute to the verdict, and one juror merely raised the possibility that the information might have contributed to the juror’s verdict, but this was only after stating that the juror was not sure it had an impact on the juror’s verdict. Butler v. State, 270 Ga. 441, 511 S.E.2d 180 (decided under former O.C.G.A. § 17-9-41). Juror’s affidavit concerning reenactment of crime. - State death row inmate’s claim that the state habeas court should have considered the affidavits of jurors in connection with the inmate’s argument that the jury considered nonrecord evidence when the state reenacted the crime at the murder scene failed because considering the affidavits would have violated former O.C.G.A. §§ 9-10-9 and 17-9-41, and the trial judge had specifically precluded the state from reenacting the crime at the jury’s viewing of the scene. Crowe v. Terry, 426 F. Supp. 2d 1310, 2005 U.S. Dist. LEXIS 41532 (N.D. Ga. 2005), aff’d, 490 F.3d 840, 2007 U.S. App. LEXIS 15250 (11th Cir. 2007). In a case in which an inmate asserted that during the sentencing trial there was an improper reenactment of the murder when the jury viewed the crime scene, the inmate could not establish prejudice because the affidavits of three jurors were inadmissible in a Georgia court pursuant to former O.C.G.A. §§ 9-10-9 and 17-9-41; the affidavits of jurors could be taken to sustain, but not to impeach the jury’s verdict. Crowe v. Hall, 490 F.3d 840, 2007 U.S. App. LEXIS 15250 (11th Cir. 2007), cert. denied, 553 U.S. 1007, 128 S. Ct. 2053, 170 L. Ed. 2d 798, 2008 U.S. LEXIS 3642 (2008) (decided under former O.C.G.A. § 17-9-41). Intentional gathering and communication of extrajudicial information by jurors. - Former section had a valid and salutary application in disallowing jurors to impeach their verdicts on the basis of statements made to one another in the jury room and the effect of those statements on the minds of the individual jurors. However, the intentional gathering of extrajudicial evidence, highly prejudicial to the accused, by members of the jury

Statements by Jurors (Cont’d) and the communication of that information to the other jurors in the closed jury room was inimical to the present jury trial system. Watkins v. State, 237 Ga. 678, 229 S.E.2d 465, 1976 Ga. LEXIS 1352 (1976) (decided under former Code 1933, § 110109). Juror misconduct or irregularity. - Limited discussion among jurors concerning a news story about the murder of a state’s witness, which occurred during an unrelated drug transaction on the evening following the witness’ testimony at the trial, did not warrant an exception to the rule that jurors are not permitted to impeach the jury’s own verdict. Oliver v. State, 265 Ga. 653, 461 S.E.2d 222, 1995 Ga. LEXIS 723 (1995) (decided under former O.C.G.A. § 17-9-41). Jurors’ testimony that the jurors were confused about the definition of knowledge and participation with regard to being a party to a crime was inadmissible to impeach the jury’s verdict. Ross v. State, 231 Ga. App. 506, 499 S.E.2d 351 (decided under former O.C.G.A. § 17-9-41). Trial court did not err in refusing to allow a juror to testify at the hearing on defendant’s motion for new trial regarding a juror’s alleged misunderstanding of the law, and a juror’s alleged assertion during deliberations that the defendant would get probation if convicted. Lewis v. State, 249 Ga. App. 812, 549 S.E.2d 732, 2001 Ga. App. LEXIS 592 (2001), cert. denied, No. S01C1427, 2001 Ga. LEXIS 889 (Ga. Nov. 5, 2001), overruled in part, Miller v. State, 285 Ga. 285, 676 S.E.2d 173, 2009 Ga. LEXIS 143 (2009) (decided under former O.C.G.A. § 17-9-41). Habeas petitioner alleged facts showing grounds for relief which could not reasonably have been raised in the petitioner’s original habeas petition and which could not have been discovered by diligence including a juror’s misconduct in visiting the scene and the state’s failure to disclose ballistic evidence, satisfying O.C.G.A. §§ 9-14-42(c)(4) and 9-14-51. Watkins v. Ballinger, 308 Ga. 387, 840 S.E.2d 378, 2020 Ga. LEXIS 177 (2020). After two jurors testified that they looked up the difference between first and

second degree homicide by vehicle, which one was a felony and which one was a misdemeanor, and conveyed that information to the other jurors, the trial court and the court of appeals erred in their rulings on the defendant’s juror-misconduct claim because the trial court erred in concluding that O.C.G.A. § 24-6-606(b) displaced the presumption of prejudice arising from a showing of juror misconduct and in not requiring the state to prove beyond a reasonable doubt that the misconduct was non-prejudicial; and the court of appeals erred in concluding that a juror’s obtaining extrajudicial sentencing information was always harmless beyond a reasonable doubt. Harris v. State, 314 Ga. 51, 875 S.E.2d 649, 2022 Ga. LEXIS 171 (2022). Manner of arriving at verdict. - Nothing coming from a juror, either directly or indirectly, in the way of a narrative with respect to the manner in which a verdict was arrived at will be heard to impeach the verdict. Rylee v. State, 28 Ga. App. 230, 110 S.E. 749, 1922 Ga. App. LEXIS 414 (1922) (decided under former Civil Code 1910, § 5933). Extrajudicial and prejudicial information exception to former O.C.G.A. § 179-41 was inapplicable, since the defendant relied on the affidavit of a jury foreperson to assert that the verdict was based solely on the victim’s testimony that the defendant had a drug problem, non-jurors did not interfere with jury deliberations, and the information at issue was not extrajudicial. Young v. State, 258 Ga. App. 238, 573 S.E.2d 487, 2002 Ga. App. LEXIS 1405 (2002) (decided under former O.C.G.A. § 17-9-41). Improper communication with deputy sheriff or bailiff. - Affidavits which tend to show that the deputy sheriff or the bailiff had improper communications with the jury cannot be considered by the judge in passing upon the issue as to whether such communications were had with the jury. Tolbirt v. State, 124 Ga. 767, 53 S.E. 327, 1906 Ga. LEXIS 608 (1906) (decided under former Civil Code 1895, § 5338). Inmate’s 28 U.S.C. § 2254 habeas petition challenging a death sentence was improperly denied because an improper bailiff-jury communication during the

penalty phase violated the inmate’s Sixth Amendment right to a fair trial and defendant’s Fourteenth Amendment due process right to have the jury decide the punishment based on the evidence presented in court, in accordance with the rules and instructions of the court and with the full knowledge of the parties. The state habeas court erroneously determined that the affidavits of three jurors were inadmissible under former O.C.G.A. § 17-9-41 after ruling that a bailiff’s comments to a juror concerning a defendant’s parole eligibility constituted an exception to former § 17-9-41’s rule prohibiting the use of jurors’ affidavits to impeach their verdict; the inmate was actually prejudiced by the improper bailiff-jury communication because the jurors indicated that the jurors imposed the death sentence based on the bailiff’s communication to the jurors that life without parole was not a sentencing option. Ward v. Hall, 592 F.3d 1144, 2010 U.S. App. LEXIS 80 (11th Cir.), cert. denied, 562 U.S. 1082, 131 S. Ct. 647, 178 L. Ed. 2d 513, 2010 U.S. LEXIS 9407 (2010); 178 L. Ed. 2d 513 (2010) (decided under former O.C.G.A. § 17-9-41). Juror’s affidavit of racial remarks by other jurors. - Trial court did not err in refusing to consider a juror’s post-trial affidavit stating the juror overheard two white jurors making racially derogatory comments about the defendant, since there was no other evidence that racial bias materially affected the jury’s decision to convict the defendant and to impose a death sentence. Spencer v. State, 260 Ga. 640, 398 S.E.2d 179, 1990 Ga. LEXIS 445 (1990), cert. denied, 500 U.S. 960, 111 S. Ct. 2276, 114 L. Ed. 2d 727, 1991 U.S. LEXIS 3251 (1991) (decided under former O.C.G.A. § 17-9-41). Affidavit which impeaches verdict cannot be ground for new trial. - Ground for a motion for a new trial based upon an affidavit of a juror impeaching the verdict was without merit. Stanley v. State, 25 Ga. App. 461, 103 S.E. 689, 1920 Ga. App. LEXIS 6 (1920) (decided under former Civil Code 1910, § 5933). Juror’s unsworn statement cannot impeach verdict. - Since a juror’s affidavit will not be taken to impeach the jury

verdict, the unsworn statement of a juror cannot impeach the verdict. Mangrum v. State, 155 Ga. App. 334, 270 S.E.2d 874, 1980 Ga. App. LEXIS 2570 (1980) (decided under former Code 1933, § 110-109). Affidavits of third persons. - If a verdict may not be impeached by an affidavit of one or more of the jurors who found the verdict, certainly the verdict cannot be impeached by affidavits from third persons, establishing the utterance by a juror of remarks tending to impeach the juror’s verdict. The affidavit of a party that some of the jurors told the party the verdict was caused by a mistake furnishes no cause to set the verdict aside. Rylee v. State, 28 Ga. App. 230, 110 S.E. 749, 1922 Ga. App. LEXIS 414 (1922) (decided under former Civil Code 1910, § 5933). Verdict may not be impeached by the affidavit of a third person establishing the utterance by a juror of remarks which may impeach the juror’s verdict. Arnold v. State, 166 Ga. App. 313, 304 S.E.2d 118, 1983 Ga. App. LEXIS 3228 (1983) (decided under former O.C.G.A. § 17-9-41). No misconduct established. - With regard to a defendant’s convictions for incest and child molestation, the defendant was not denied a fair trial when allegedly extrajudicial evidence was introduced to the jury through juror misconduct about the requirement upon a school teacher to report abuse as the defendant not only failed to establish that the verdict lacked due process, the defendant neglected to show that any statement by the juror in question amounted to misconduct as the only juror who arguably alleged improper conduct admitted that the juror could barely hear the statement in question and could not remember what it was. Hubert v. State, 297 Ga. App. 71, 676 S.E.2d 436, 2009 Ga. App. LEXIS 357 (2009), cert. denied, No. S09C1250, 2009 Ga. LEXIS 583 (Ga. Sept. 8, 2009) (decided under former O.C.G.A. § 17-9-41). Practice and Procedure Denial of new trial where only ground is affidavit that some jurors were disqualified. - Court does not err in refusing to grant a new trial upon the alleged ground that some of the jurors who tried the case were disqualified as the

Practice and Procedure (Cont’d) only attempted proof in support of such alleged disqualification consists of affidavits of the jurors themselves since the verdict which the jurors returned cannot be impeached by the jurors. Gossett v. State, 203 Ga. 692, 48 S.E.2d 71, 1948 Ga. LEXIS 389 (1948) (decided under former Code 1933, § 110-109). Trial court properly declined to consider affidavit. - With regard to a defendant’s murder conviction, the trial court did not abuse the court’s discretion by declining to consider a juror affidavit in ruling on the defendant’s motion for new trial, which alleged that the jury was ready to acquit the defendant until one of the jurors reported seeing the defendant driving in the same vehicle that was alleged to have been involved in the murder as well as was seen responding to a nickname of “Blood” in the hallway of the courthouse, which was the name the victim’s sibling indicated was used by the defendant. The trial court properly determined that the affidavit contained significant credibility issues and that it was fatal that the defense did not have the affiant testify in open court where the state could cross-examine the affiant so that the affiant’s credibility could be more readily and definitely evaluated by the trial court. Henley v. State, 285 Ga. 500, 678 S.E.2d 884, 2009 Ga. LEXIS 301, cert. denied, 558 U.S. 1076, 130 S. Ct. 800, 175 L. Ed. 2d 559, 2009 U.S. LEXIS 8805 (2009) (decided under former O.C.G.A. § 17-9-41). New trial warranted due to ex parte communication with jury in civil case. - In a medical malpractice case, plaintiffs were entitled to a new trial because the communication between the court and the jury was not disclosed to the plaintiffs or the plaintiffs’ counsel until after the verdict, the note and response were not made a part of the record, recollections differed as to the nature and timing of the communication, and it was impossible for the appellate court to determine if a defense verdict would have been demanded regardless of the effect of the communication on the jury. Phillips v. Harmon, 328 Ga. App. 686, 760 S.E.2d

235, 2014 Ga. App. LEXIS 569 (2014), aff’d in part and rev’d in part, 297 Ga. 386, 774 S.E.2d 596, 2015 Ga. LEXIS 485 (2015), vacated in part, 335 Ga. App. 450, 780 S.E.2d 914, 2015 Ga. App. LEXIS 777 (2015). Petition by jurors for new trial. - If jurors petition the trial judge to grant a new trial and the trial judge declines so to do, no meritorious question of law is presented to the Supreme Court authorizing a judgment of reversal as under Ga. Const. 1877, Art. VI, Sec. II, Para. V (see Ga. Const. 1983, Art. VI, Sec. VI, Para. III) the Supreme Court is a court only for the correction of errors of law. Myrick v. State, 199 Ga. 244, 34 S.E.2d 36, 1945 Ga. LEXIS 302 (1945), overruled in part, Dunagan v. State, 269 Ga. 590, 502 S.E.2d 726, 1998 Ga. LEXIS 751 (1998), overruled in part, Dunagan v. State, No. S98A0421, 1998 Ga. LEXIS 626 (Ga. June 8, 1998) (decided under former O.C.G.A. § 17-9-41). Request to poll jury. - Request to poll the jury must be made at the time the jury renders the jury’s verdict, that is, right after the jury has returned a verdict of guilty or right after a jury has rendered the sentence to be imposed. Plummer v. State, 229 Ga. 749, 194 S.E.2d 419, 1972 Ga. LEXIS 764 (1972) (decided under former Code 1933, § 110-109). Exclusion of evidence of jury “perjury”. - As defendant failed to present any jurors’ testimony and could not impeach the verdict by showing the jury did not understand or misapplied the law, the trial court properly excluded evidence of jury “perjury” and denied the motion for new trial on this basis. Williams v. State, 255 Ga. App. 177, 564 S.E.2d 759, 2002 Ga. App. LEXIS 467 (2002) (decided under former O.C.G.A. § 17-9-41). Matter remanded for trial court to apply new evidentiary rule to defendant’s new trial claim. - When the defendant claimed that the defendant was denied a fair trial because the jurors considered extrajudicial information during deliberations in reaching a verdict, the parties erred in not briefing or arguing the meaning of this new rule at the motion for new trial hearing, and the trial court did not apply it when addressing the jury-

misconduct claim raised in the defendant’s motion as the trial court made no finding about a juror’s credibility and made no finding as to whether extraneous prejudicial information was, in fact, brought before the jurors; thus, the denial

of the motion for new trial was vacated and the matter was remanded for the trial court to apply the new evidentiary rule to the defendant’s new trial claim. Beck v. State, 305 Ga. 383, 825 S.E.2d 184, 2019 Ga. LEXIS 131 (2019).

RESEARCH REFERENCES C.J.S. 89 C.J.S., Trial, § 1087 et seq. ALR. Right of juror who has agreed to verdict to dissent on poll, 49 A.L.R. 1301. Admissibility of testimony or affidavits of members of jury to show communications or other improper acts of third person, 90 A.L.R. 249; 146 A.L.R. 514. Testimony or affidavit by one other than a juror, who overheard jury’s deliberations, as receivable to impeach verdict, 129 A.L.R. 803. Admissibility in civil case of affidavit or testimony of juror in support of verdict attacked on ground of bias or disqualification of juror, 30 A.L.R.2d 914. Competency of jurors’ statements or affidavits to show that they never agreed to purported verdict, 40 A.L.R.2d 1119. Admissibility and effect, in criminal case, of evidence as to juror’s statements, during deliberations, as to facts not introduced into evidence, 58 A.L.R.2d 556.

Quotient verdicts, 8 A.L.R.3d 335. Competency of juror’s statement or affidavit to show that verdict in a civil case was not correctly recorded, 18 A.L.R.3d 1132. Juror’s reluctant, equivocal, or conditional assent to verdict, on polling, as ground for mistrial or new trial in criminal case, 25 A.L.R.3d 1149. Admissibility, in civil case, of juror’s affidavit or testimony relating to juror’s misconduct outside jury room, 32 A.L.R.3d 1356. Propriety of juror’s tests or experiments in jury room, 31 A.L.R.4th 566. Impeachment of verdict by juror’s evidence that he was coerced or intimidated by fellow juror, 39 A.L.R.4th 800. Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 59 A.L.R.5th 1. Prejudicial effect of juror misconduct arising from internet usage, 48 A.L.R.6th 135.