Can the Jury Consult a Bible?
As we’ve written about before, judicial supervision of jury verdicts lies on a spectrum. On one end, some courts generally look the other way on jury misconduct. On the other, some courts firmly bury their heads, ostrich style, in the sand about it. For all of the advantages of the jury as a decision-making body, it is often treated primarily as a black box, an inscrutable machine that spits out verdicts whose inner workings cannot be scrutinized.
But a jury is not an ordeal, and while there is some cynicism in the manner that courts close their ears to credible allegations of misconduct, they aren’t willing to tolerate anything and everything when it comes to deliberations. But consciences are personal things and what offends the sensibilities of one appellate court will often be brushed off by another, or at least excused under the auspices of a highly deferential “prejudice analysis.”
This difference in approaches is quite clear in the current circuit split concerning whether jurors in criminal cases can consult Bibles during deliberations. Multiple federal appellate courts have considered the issue, and they’ve come to no fewer than three (divergent) answers to the question.
Let’s start with the Court of Appeals for the Fifth Circuit. In Oliver v. Quarterman, [1] the Court of Appeals reviewed a habeas challenge to a state murder conviction. After conviction, the defendant (Khristian Oliver), [2] who was on death row, sought to overturn the verdict on the grounds that the jury had improperly consulted a Bible during deliberations. As it turned out, there were actually a lot of Bibles involved:
At a state court evidentiary hearing on his motion for a new trial, Oliver called four jurors to testify. Kenneth McHaney stated that during the jury's deliberations, one juror, Kenneth Grace, read the Bible aloud to a small group of jurors in the corner of the jury room. McHaney also testified that fellow juror Donna Matheny mentioned to him that the Bible contained a passage discussing who is a murderer and who should be put to death, and that he asked Matheny if he could read her Bible, which Matheny had highlighted. … McHaney believed that there were approximately four Bibles in the jury room, but he could not recall the exact number.
* * *
[J]uror Michael Brenneisen, who did not testify at the state court hearing, told foreign journalist Egon Clausen in an interview that the jurors discussed the Bible in depth before they rendered their decision during the punishment phase of the trial. Brenneisen told Clausen that he used the Bible during the punishment phase to ensure he was reaching the correct decision. Specifically, Brenneisen remembered asking himself, “is this the way the Lord would decide the case?” … He acknowledged that the jury referred to specific passages in the Bible during its discussions, opening the Bible to various passages and reading them word-for-word. He also told Clausen that his personal belief is that if civil law and Biblical law conflict, then the Biblical law is paramount. [3]
Applying the rule of Remmer v. United States, [4] the Court of Appeals for held that “it is clear that the prohibition of external influences…applies to this factual scenario” and that it “raises a presumption of prejudice.” [5] While not inclined to hold a Bible more prejudicial than any other external piece of evidence or alternative rule of decision, the court held that there was no “exception” for Bibles:
“[W]hen a juror brings a Bible into the deliberations and points out to her fellow jurors specific passages that describe the very facts at issue in the case, the juror has crossed an important line. The Supreme Court counsels us that a jury may not consult material that is outside the law and evidence in the case. The Bible passages in question here were not part of the law and evidence that the jury was to consider in its deliberations.” [6]
As a result, the court held that prejudice could be presumed, an evidentiary hearing was necessary, and that, under normal circumstances, it would be incumbent on the government to prove that any external influence was “harmless.” [7]
The Court of Appeals for the Fourth Circuit had… a somewhat different approach. In Robinson v. Polk, [8] the appellate court also examined a habeas petition from a convicted murderer sentenced to death. While there were fewer Bibles in the jury room this time, the Bible in question had literally been provided by a member of the court staff:
The [first] juror revealed that [a second] juror had asked for a bailiff to bring in a bible during deliberation on sentencing. He recalled that the bailiff provided a bible, and the second juror read a passage concerning an “eye for an eye.” The one who requested the bible was citing to the scripture passage to attempt to convince other jurors, including the one we interviewed ... that they should change their position from one favoring a life sentence to one favoring a death sentence. The bible passage was read to the other jurors before the final vote for a death sentence. [9]
But, the Court of Appeals, while not exactly endorsing the practice, [10] declined to find that a bailiff providing a Bible to review in determining whether the defendant would live or die constituted an improper external influence on the verdict:
[I]t would have been reasonable for the MAR court to conclude that the Bible is not analogous to a private communication, contact, or tampering with a juror, and that the common-law rule against allowing juror testimony applied. Unlike these occurrences, which impose pressure upon a juror apart from the juror himself, the reading of Bible passages invites the listener to examine his or her own conscience from within. In this way, the Bible is not an “external” influence. In addition, reading the Bible is analogous to the situation where a juror quotes the Bible from memory, which assuredly would not be considered an improper influence. [11]
Under this “the Bible resides within you” theory, the court would not even be obligated to conduct a hearing to examine whether the defendant was prejudiced.
[W]e believe that the MAR court reasonably could have concluded that the safeguards of the trial process-in particular, the facts that jurors' religious views can be examined at voir dire, as they were in this case, and that the defendant can request a jury charge explaining to the jurors their duty to follow the law, as was given in this case-provide an adequate protection of a defendant's right to be sentenced by a jury free of improper influences such that a post-verdict examination into Bible reading is unnecessary. [12]
And approaching the issue in yet another way, the Court of the Appeals for the Ninth Circuit considered a death penalty habeas petition in Kipp v. Davis. [13] Only one Bible this time, supplied by one of the jurors. As another juror wrote in a sworn declaration:
I recall that during penalty phase deliberations a female juror with dark, shoulder-length hair brought in a Bible and read it to us. She talked about several verses in the Bible, which she told us would help us in making a decision. The jurors talked about standing in judgment of another human being. There was also discussion of the verses which state, ‘an eye for an eye’ and ‘judge not lest ye be judged.’ A little over half of the jurors had a religious background and strong religious beliefs. [14]
While acknowledging the circuit split on whether a Bible constituted an improper external influence, the Court of Appeals approached the issue in a totally different fashion. Rather than even decide whether a jury consulting a Bible constituted “misconduct” at all or whether a Bible was an “external” influence, the appellate court held that – even absent an evidentiary inquiry – the lower court could have concluded that there was no prejudice. Why? Well:
[T]he verses mentioned in Rivers's declaration included both “an eye for an eye” and “judge not lest ye be judged,” verses tending to support opposing views. And, … more importantly, the jury was instructed to base its decision on the facts and the law as stated by the judge, regardless of whether a juror agreed with it. We presume that jurors follow the instructions. [15]
What can we glean from all this? All joking aside, courts are genuinely conflicted about how to address unusual juror behavior. And the introduction of religious elements presents a unique challenge. Judges neither want to dismiss religious convictions as irrelevant to moral judgments, nor preside over some sort of semi-secular synod. But in the absence of clear standards or effective remedies, the possibility that a jury might turn to religious scripture in connection with deliberations is something that you cannot ignore.
[1] 541 F.3d 329 (2008).
[2] Yes, the Defendant allegedly sentenced to death by a Bible is named “Khristian.” Of course he is.
[3] Id. at 331-33.
[4] 347 U.S. 227 (1954).
[5] Id. at 336.
[6] Id. at 339.
[7] Id. at 341. Ultimately, the court failed to grant habeas relief on the grounds that the state court had, in fact, held this hearing and had concluded (dubiously) upon its review of the evidence, that the external influence was harmless.
[8] 438 F.3d 350 (2006).
[9] Id. at 357-58.
[10] It doesn’t really condemn it either, to the point where you’d wonder whether if the Gideons could stock all the jury rooms in the Fourth Circuit.
[11] Id. at 363-64.
[12] Id. at 364.
[13] 971 F.3d 866 (2020)
[14] Id. at 881.
[15] Id. at 882.
