Tuesday, November 20, 2012

U.S. v. Wiggan (9th Cir. - Nov. 20, 2012)

Judge Ebel, sitting by designation from the Tenth Circuit, thinks it's okay to call grand jurors to testify to their deliberations in order to prove that a defendant committed perjury.

What's next?  Calling judges as witnesses?  Calling jurors in civil or criminal cases?

We don't do that.  That's not how our system works.  We don't call jurors back to figure out what they "would have" done had circumstances been different, or why they reached the conclusion they did.

We don't do it in malpractice cases.  We don't do it in new trial motions.  We don't do it to decide whether an error is harmless.  We just don't do it.  For tons of good reasons.

Fortunately, the Ninth Circuit takes a different view than Judge Ebel.  Judges Fernandez and Berzon outvote him, and Judge Fernandez writes an opinon reversing the conviction and remanding for a new trial.

Exactly right.