I'm working on a novel about jury nullification. The jury decided to ignore the judge's orders and to define what they think the law is. The judge hears the rumor and summons the foreperson to their chambers to find out what the jury is up to.

My question: can the foreperson refuse to answer, or would that be contempt?

One of the similar questions from a year ago mentions Federal Rule of Evidence 606(b). But my question is different.

  • 2
    Since you're writing a novel, see: Writing, where you can ask questions about realism in your work.
    – muru
    Commented Dec 8, 2023 at 6:50

3 Answers 3


The case North Carolina v. Sanders contains many of the requisite elements. The first question is whether the judge can inquire into possible juror misconduct which may involve "giving cautionary instructions to the jury, replacing a juror with an alternate, or declaring a mistrial, but may also include more severe measures such as contempt proceedings, criminal charges, and other sanctions". One of the pertinent categories of misconduct is "Refusal to Deliberate According to the Law", the Sanders case being the exemplar.

In this case, during deliberations, a note was passed to the judge that suggested juror misconduct among other things (viz. a hung jury). In response, the judge met with both counsels in the presence of the defendant and there was "what do we do?" discussion, the prosecutor suggesting investigation into the juror misconduct issue. At this point, the foreman was brought in. In short, a judge can question the jury foreman if there is an accusation of misconduct (a juror talking to police and a judge, and investigating on their own).

At this point, the foreman did identify the accused juror. One could imagine a juror (at least in the US) thinking that everything that goes on in the deliberation rule is an absolute secret and that a judge cannot inquire into what goes on in the jury room. This impression is supported by FRE 606 which says that

a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters

which could then lead a juror (including the foreman) to refuse to answer those questions. However: this rule has relevant exceptions, when

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

In Pena-Rodriguez v. Colorado, SCOTUS affirmed the validity of the no-impeachment rule, while also clarifying the limited exceptions. In that case, racial prejudice is a clear-cut case of an exception.

Because of the no-impeachment rule, a judge does not have open-ended power to interrogate jurors, any questioning would have to fall within the purview of an exception. A person cannot be in contempt of court for refusing an illegal order. The challenge for your scenario is to make this inquiry by the judge be legal. A belief is not a form of misconduct, but a juror's specific statements (which in the Sanders case amounted to testifying as to what the law means, which is disallowed). Although the deliberations were allowed to continue even with this revelation (there was an admonition to disregard the juror's "testimony", but the whole proceeding degenerated into squabbling and a mistrial was declared.

The reason why the judge was allowed to interrogate the foreman is that there was a sufficiently specific allegation of misconduct as defined under North Carolina law that there existed an exception to the no-impeachment rule. As you describe it, there isn't a legal basis for setting aside the rule.

  • The exceptions to FRE 606 are not relevant to the judge's questioning the foreman because the entire rule is irrelevant. The rule concerns testimony, this questioning is not testimony.
    – phoog
    Commented Dec 7, 2023 at 2:09
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    "The challenge for your scenario is to make this inquiry by the judge be legal" -- or maybe not. It could be a plot point that the judge makes out of bounds inquiries. And even that the juror is (without valid legal authority) held in contempt for refusing to answer such. Commented Dec 7, 2023 at 22:16
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    Assuming US jurisdiction (as OP said) the reference to NC legal definition of misconduct suggests the answer could be state-specific, which seems odd for Federal Rules. Can someone clarify?
    – Badger
    Commented Dec 8, 2023 at 3:07


The judge has the power under s55D and s55DA to examine jurors under oath in certain circumstances, and the juror cannot refuse to answer, although if their answers are self-incriminating, they must be given immunity.

Since the judge has heard "rumours", someone in the jury must have been talking outside the jury room. This would be sufficient to trigger a s55DA enquiry to determine if a contravention of s68C regarding juror inquiries had occurred.

Refusing to answer is contempt; lying is perjury.

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    "Since the judge has heard "rumours", someone in the jury must have been talking outside the jury room" — is that so? Someone not from the jury could be triggering the (false) rumours.
    – Greendrake
    Commented Dec 7, 2023 at 1:52
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    @Greendrake and that would warrant investigation too
    – Dale M
    Commented Dec 7, 2023 at 1:57
  • When you say that self incriminating answers must be granted immunity, this self evidently means that the juror would not be in any jeopardy over (truthful) answers. I am curious, though, whether "discussing/implementing jury nullification" would be sufficient grounds for the judge to declare a mistrial, replace jurors with alternates, or take other such remedies.
    – user99478
    Commented Dec 7, 2023 at 4:03
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    @user99478 what a good question. You should ask it.
    – Dale M
    Commented Dec 7, 2023 at 7:18
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    @DaleM I am afraid that the question is too specific as written, or if made more general would perhaps be already sufficiently addressed here . I'll think carefully, but thank you for encouraging me, in whichever case.
    – user99478
    Commented Dec 7, 2023 at 8:49

To figure this out, you also need to be in the clear on what kind of a court you're in: civil, state (?), or federal.

A jury always has the obligation to explain how and why they came to a certain sentence. You would have to look into when this becomes a matter of law during the trial, because the reaching of a verdict takes careful deliberation and all the facts.

During the trial the facts will be made known and the jury may reach a different conclusion in terms of what laws apply than they had at the beginning. It's natural to make estimates, but you need to make sure they don't turn into prejudice. Maybe that would be your angle, the nature of prejudice.

The judge not agreeing with the jury isn't always a reason for them to get kicked out, mostly because the judge isn't allowed to act with prejudice either.

The way I recall American law, the jury reaches a verdict of either guilty or not guilty. In case of the latter you are free to go. When found guilty, the judge can still issue a motion for judgment non obstante veredicto (federal law may have a different term for it), overturning the ruling of the jury.

That would also be a question you need to answer: why doesn't the judge just wait to the end of the trial and let matters take their course? How do the jury obstruct or break with procedures and procedural law?

  • The manner you've written this answer doesn't seem like you have a lot of confidence in it. You state that you're simply recalling American law, but you don't have citations. And you end with several questions whose introduction don't seem to make a clear point. Commented Dec 14, 2023 at 20:35
  • Actually, a jury is barred from explaining what was said during deliberations.
    – Trish
    Commented Dec 14, 2023 at 22:15
  • @Jen I meant finding someone guilty or not guilty, sorry. Varying per state they may or may not be in charge of the actual sentence or sentence recommendation. I should have chosen my words more carefully. Apologies. Commented Dec 15, 2023 at 22:59
  • @Pyrotechnical I'm fully confident that there are things I do and do not know. I don't know what it is the person asking the question will want to write and asking open questions is better guidance than to tell them what to write. It will help with research. Commented Dec 15, 2023 at 23:02
  • @Trish They at least have to explain the voting results in some states by naming the count. If they don't have to motivate anything, the whole trial becomes random. Commented Dec 15, 2023 at 23:03

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