McNally v. Walkowski

462 P.2d 1016, 85 Nev. 696, 1969 Nev. LEXIS 459
CourtNevada Supreme Court
DecidedDecember 18, 1969
Docket5771
StatusPublished
Cited by26 cases

This text of 462 P.2d 1016 (McNally v. Walkowski) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McNally v. Walkowski, 462 P.2d 1016, 85 Nev. 696, 1969 Nev. LEXIS 459 (Neb. 1969).

Opinions

OPINION

By the Court,

Mowbray, J.:

This appeal challenges the rule announced by Lord Mansfield in Vaise v. Delaval, 1 Term. Rep. 11 (K.B. 1785), that a juror’s statement may not be admitted to impeach a verdict in which the juror participated.

McNally was injured in a single-car-turnover accident. Walkowski was the driver of the vehicle in which McNally was riding as a passenger. McNally sued Walkowski for damages. The case was tried to a jury, and a 9-3 verdict was returned for Walkowski.

One of the nine majority jurors telephoned McNally’s counsel the day following the trial and complained of the manner [698]*698in which the jury had reached its verdict. Counsel secured the juror’s affidavit and offered it, with four other, almost identical affidavits, in support of McNally’s motion for a new trial. The trial judge refused the affidavits on the traditional ground that a juror’s statement may not be received to impeach the jury’s verdict, and he denied McNally’s motion for a new trial. Hence this appeal.

The early common law set up no barrier against the receipt of jurors’ testimony or affidavits to impeach their verdict. 8 J. Wigmore, Evidence § 2352, at 696 (McNaughton Rev. 1961). The barrier, apparently insurmountable in its original form, however heinous or reprehensible the misconduct of the jury, originated with Lord Mansfield’s decision in Vaise v. Delaval, supra. Lord Mansfield said:

“The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor; but in every such case the Court must derive their knowledge from some other source, such as some person,having seen the transaction through a window or by some such other means.”

The exclusion, thus first based upon a policy against self-stultification, in later decisions, particularly of American courts, was also based upon a policy to avoid tampering with jurors, perjury, and other such fraudulent practices.1 A storm of criticism soon surrounded the indiscriminate application of the rule, particularly in fact situations where it patently worked injustice. Its critics invariably pointed out its inconsistency from an evidentiary standpoint, in that it permitted a bailiff or other court officer who had been spying on the jury to testify as to misconduct but rejected the testimony of those who really knew what had occurred. Wigmore, supra, § 2353, at 698-702.2

“After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.” (Footnote omitted.)

[699]*699Nevada, as the majority of American jurisdictions, has steadfastly adhered to Lord Mansfield’s Rule.3 See Wilson v. Perkins, 82 Nev. 42, 409 P.2d 976 (1966); Kaltenborn v. Bakerink, 80 Nev. 16, 388 P.2d 572 (1964); Close v. Flanary, 77 Nev. 87, 360 P.2d 259 (1961); Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960); State v. Lewis, 59 Nev. 262, 91 P.2d 820 (1939); Priest v. Cafferata, 57 Nev. 153, 60 P.2d 220 (1936); Southern Nev. Mining Co. v. Holmes Mining Co., 27 Nev. 107, 73 P. 759 (1903); State v. Crutchley, 19 Nev. 368, 12 P. 113 (1886); State v. Stewart, 9 Nev. 120 (1874). Formidable as our rulings might be, we are not unmindful that cases may arise in which it would be impossible to refuse jurors’ statements without violating “the plainest principles of justice.”4

In other jurisdictions the courts themselves have announced an exception to their own exclusionary rule rejecting jurors’ affidavits to impeach their verdict. Although a litigant was unsuccessful at the turn of the century in urging that a valid distinction existed between a juror’s misconduct before retirement and his misconduct after retirement [Siemsen v. Oakland, S.L. &H. Elec. Ry., 66 P. 672 (Cal. 1901)], chronology later became a paramount consideration. When an affidavit was offered in a later case to show that a juror had witnessed the disputed accident, had formed an opinion about liability, and had falsely denied on her voir dire examination that she had any knowledge of the event, the court held that the affidavit should have been received. Williams v. Bridges, 35 P.2d 407 (Cal.App. 1934). In that case (he court said that the exclusionary rule applies to words or acts that are inherent in the verdict and that have their origin after the impanelment and before the discharge of the jury. The bar does not apply, the court held, to an affidavit which demonstrates a previous positive misconduct in concealing actual bias on the voir dire examination. See Shipley v. Permanente Hospitals, 274 P.2d [700]*70053 (Cal.App. 1954); Kollert v. Cundiff, 329 P.2d 897 (Cal. 1958) (disapproving other statements in Shipley).

In State v. Hayden Miller Co., 116 N.W.2d 535, 539 (Minn. 1962), the court said:

“We are not concerned here with the well-recognized principle that affidavits of a juror or any other person relating to what a juror has said will not be received to impeach the verdict where the facts sought to be shown inhere in the verdict itself. . . . The privilege which protects the deliberations of the jury from exposure does not extend to statements of jurors who may have on voir dire concealed prejudice or bias which would have disqualified them or to misconduct of a juror in making an independent inspection of the property in question contrary to the court’s instructions. . . .”

In Department of Pub. Works & Bldgs. v. Christensen, 184 N.E.2d 884, 887 (1962), the Illinois Supreme Court ruled:

“The Department takes the position that jurors’ affidavits may not be used to impeach their verdict, relying on Sanitary District of Chicago v. Cullerton, 147 Ill. 385, 35 N.E. 723 [1893], Although this doctrine is generally recognized, it is subject to an exception when it is charged that a juror has answered falsely on voir dire about a matter of potential bias or prejudice. People v. Beacham, 358 Ill. 373, 193 N.E. 205 [1934]; Maher v. New York, Chicago and St. Louis Railroad Co., 290 Ill.App. 267, 8 N.E.2d 512 [1937]; West Chicago Street Railroad Co. v. Huhnke, 82 Ill.App. 404 [1899]; 8 Wigmore on Evidence, section 2354 at n. 5 [3d ed. 1940]; Annot. 48 A.L.R.2d 964 [1956].”

This is the precise argument advanced by McNally on this appeal. McNally contends that the jurors were not truthful when examined on voir dire, that they intentionally concealed their bias and prejudice, and that as a result he was denied his constitutional right to a fair trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Las Vegas Sands Corp. v. Suen
Nevada Supreme Court, 2016
Sanders v. Sears-Page
Court of Appeals of Nevada, 2015
SANDERS VS. SEARS-PAGE
2015 NV 50 (Nevada Supreme Court, 2015)
Sanders v. Sears-Page
2015 NV 50 (Nevada Supreme Court, 2015)
Maestas v. State
275 P.3d 74 (Nevada Supreme Court, 2012)
Parrish v. Lilly
1993 OK 80 (Supreme Court of Oklahoma, 1993)
ACP Reno Associates v. Airmotive & Villanova, Inc.
849 P.2d 277 (Nevada Supreme Court, 1993)
Watson v. Navistar International Transportation Corp.
827 P.2d 656 (Idaho Supreme Court, 1992)
Lopez v. State
769 P.2d 1276 (Nevada Supreme Court, 1989)
Waldman v. Cohen
125 A.D.2d 116 (Appellate Division of the Supreme Court of New York, 1987)
Hale v. Riverboat Casino, Inc.
682 P.2d 190 (Nevada Supreme Court, 1984)
Weaver Bros., Ltd. v. Misskelley
645 P.2d 438 (Nevada Supreme Court, 1982)
State v. Scotchel
285 S.E.2d 384 (West Virginia Supreme Court, 1981)
Isbell v. State
626 P.2d 1274 (Nevada Supreme Court, 1981)
Little v. State
625 P.2d 572 (Nevada Supreme Court, 1981)
Walker v. State
594 P.2d 710 (Nevada Supreme Court, 1979)
Barker v. State
594 P.2d 719 (Nevada Supreme Court, 1979)
Shaw v. Beehive State Agricultural Co-op, Inc.
555 P.2d 958 (Nevada Supreme Court, 1976)
Walkowski v. McNally
488 P.2d 1164 (Nevada Supreme Court, 1971)
McNally v. Walkowski
462 P.2d 1016 (Nevada Supreme Court, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
462 P.2d 1016, 85 Nev. 696, 1969 Nev. LEXIS 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnally-v-walkowski-nev-1969.