Juror Affidavits - Juror Investigation - Requirement That Affidavit Be Sworn
Ankor Energy, LLC v. Kelly, [Ms. 1151269 and 1160476 , Aug. 24, 2018] __ So. 3d __ (Ala. 2018). This decision by Justice Bolin reverses the Escambia Circuit Court’s order granting a new trial in favor of plaintiffs in an action in which the plaintiffs claimed that Ankor Energy, LLC and its affiliate breached implied covenants arising under oil leases and committed fraud and waste in connection with production activities near plaintiffs’ property. Ms. *4. The order granting the new trial was based on juror misconduct. Ms. *16.
One of the jurors provided a handwritten affidavit to the plaintiffs’ counsel that she had conducted an online search of terms used during the trial such as “smackover,” “how oil migrates,” “reservoirs,” and “rock formation.” Ms. *6.
Ankor filed motions to strike the juror’s affidavit alleging, inter alia, that it was not sworn. Ms. *7. Ankor also submitted subsequent affidavits from the juror stating that she did not understand that she was under oath when she gave the first statement to plaintiffs’ counsel and that her research was only marginally effective, was not shared with other jurors, and did not affect her verdict. Ms. *8, 10.
The Court first noted that “an affidavit showing that extraneous facts influenced the jury’s deliberations is admissible.” Ms. *18. The Court noted that the juror’s initial handwritten affidavit comes within the “extraneous-information exception to Rule 606(b)’s general exclusionary rule prohibiting a juror from impeaching his or her verdict.” Ms. 19. However, the Court concluded that the circuit court had exceeded its discretion in denying Ankor’s motion to strike the juror’s handwritten affidavit. The Court noted that “‘the true test of the sufficiency of a paper as an affidavit is the possibility of assigning perjury upon it if false. To meet this test it must be sufficient in both the form and in substance.’” Ms. *20, quoting Sellers v. State, 162 Ala. 35, 39, 50 So. 340, 341 (1909) (some internal quote marks omitted). The Court held in light of the juror’s second affidavit and an affidavit from plaintiffs’ counsel that “it does not appear that the juror was administered an oath or that she was otherwise informed that she was swearing to the truth of the handwritten affidavit. Additionally, it does not appear that counsel added the jurat, indicating when, where, and before whom the affidavit was sworn, until after the juror signed the affidavit.” Ms. *20-21.
While the Court noted that § 13A-10-108(3), Ala. Code 1975 provides that “it is not a defense to perjury that the document was not sworn to if the document contains a recital that it was made under oath, that the declarant was aware of the recital when he or she signed the document, and that the document contains the signed jurat of a public servant to administer oaths.” Ms. *21. The Court noted that in regards to the juror’s first affidavit, the lack of the administering of an oath and the absence of a recital on the handwritten affidavit that it was being made under oath when the juror signed it, rendered the handwritten affidavit an unsworn document. Ibid.
Accordingly, the Court concluded that the order granting a new trial must be reversed because “[w]ithout the handwritten affidavit, there is nothing to indicate juror misconduct warranting a new trial.” Ms. *22. The Court cited settled law that “‘juror misconduct will justify a new trial when it indicates bias or corruption, or when the misconduct affected the verdict, or when from the extraneous facts prejudice may be presumed as a matter of law.’” Ibid., quoting Whitten v. Allstate Insurance Co., 447 So. 2d 655, 658 (Ala. 1984).
Consideration of extraneous materials as a basis for juror misconduct supports a new trial only where “1) the jury verdict is shown to have been actually prejudiced by the extraneous material; or 2) the extraneous material is of such a nature as to constitute prejudice as a matter of law.” Ms. *22-23. The Court noted that mere exposure to a definition as was involved in this case, does not constitute prejudice as a matter of law. Ms. *23. The Court noted that the juror’s third affidavit stated that she obtained “very little information” and that it did not affect her verdict. Ms. *25.