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Rule 327. For Jury Misconduct (1984)

TEXT

a. When the ground of a motion for new trial, supported by affidavit, is misconduct of the jury or of the officer in charge of them or because of any communication made to the jury, or that a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the communication made, or the erroneous or incorrect answer on voir dire examination, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.

b. 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict concerning his mental processes in connection therewith, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

Amended by order of Dec. 5, 1983, eff. April 1, 1984: This codifies existing law that there must be affidavits before the trial judge need have a hearing. It incorporates the provisions of Rule 606(b), Texas Rules of Evidence.

ADVISORY OPINIONS

(No. 35) Question: To what extent has Rule 327 effected a change in the procedure concerning jury misconduct?

Answer: A long line of decisions had heretofore established the rule in Texas that when the fact of material jury mis­conduct was once established by the evi­dence presented in support of the motion for a new trial, then it would be presumed that this misconduct was prejudicial and the case would be reversed unless the evi­dence showed beyond a reasonable doubt that the misconduct was harmless and did not affect the verdict ,or findings of the jury.

Rule 327 does away with this presump­tion of prejudice. Under the Rule a new trial should not be granted because of jury misconduct unless "it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party."

The burden of proving no injury is taken off the appellee; and the burden of affirmatively establishing probable injury is placed upon the appellant as to jury misconduct just as it is in regard to other errors upon which the appellant seeks a reversal of the case.

5 Tex. B.J. 170 (1942) reprinted in 8 Tex. B.J. 16 (1945).