concurring specially.
I fully concur in this opinion; however, I write separately to question whether our courts should recognize an additional exception to the rule against the admission of juror testimony to impeach a verdict. Where a civil litigant discovers shortly after trial that a juror was in effect a witness against him, I believe fairness requires at a minimum that the trial judge be allowed to receive oral testimony regarding the impact of such extrajudicial evidence on the outcome of the case. I believe our appellate courts, recognizing “the need to keep inviolate the sanctity of juror deliberations, the desirability of promoting the finality of jury verdicts and the necessity of protecting jurors from post-trial harassment,”6 have unjustifiably deleted an important exception to the ancient common law rule against jurors impeaching their own verdicts, a rule almost universally traced to Lord Mansfield’s decision in Vaise v. Delaval, 1 Term. R. 11 (99 Eng. Rep. 944) (K. B. 1785).7 As the Supreme Court of the United States has noted, the “firmly established common-law rule in the United States flatly prohibit[ing] the admission of juror testimony to impeach a jury verdict” was subject to an exception “in situations in which an ‘extraneous influence,’ was alleged to have affected the jury.”-(Citations omitted.) Tanner v. United States, 483 U. S. 107, 117 *19(107 SC 2739, 97 LE2d 90) (1987).8 Viewed in this context, I believe that OCGA § 9-10-9 (and its criminal procedure corollary, OCGA § 17-9-41) should not be interpreted to deprive a trial judge of the “power to receive, hear, or consider” affidavits and oral testimony of jurors under these circumstances, specifically, (1) the subject of the impeachment is jurors’ misconduct in obtaining and relying on extrajudicial information in reaching their verdict, and, (2) a litigant brings evidence of the misconduct to the trial court’s attention within the time allowed for a motion for new trial and for a motion to set aside a judgment.
As the majority correctly notes, however, our state Supreme Court has recognized an exception only in very limited circumstances in criminal cases. Compare Watkins v. State, 237 Ga. 678, 684-685 (229 SE2d 465) (1976), with Wellbeloved v. Wellbeloved, 209 Ga. 709, 711 (4) (75 SE2d 424) (1953), as quoted by the majority. Accordingly, I believe, like then-Judge Carley in his special concurrence in Lozyn-sky v. Hairston, 168 Ga. App. 276 (308 SE2d 605) (1983) (physical precedent only), that we have no alternative but to reverse the trial court’s grant of appellee’s motion for new trial. As then-Judge Carley so eloquently stated 20 years ago:
This case presents a situation wherein the principle of law requiring that jurors make their decision solely upon the evidence adduced at trial conflicts directly with the principle of law that a juror may not be heard to impeach his own verdict. Unfortunately, the cases seem to inflexibly declare that the former must yield to the latter.
Id. at 277 (Carley, J., concurring specially). As in that case, the jurors’ misconduct in this case was egregious and greatly affected the deliberations and verdict of the jury. Like then-Judge Carley, however, I can find no basis under Georgia law for an applicable excep*20tion to the proscription of impeachment of a verdict by jurors, and, therefore, I am constrained to concur with the majority.
Decided April 17, 2003. Austin & Sparks, John B. Austin, for appellant. Tisinger, Tisinger, Vance & Greer, Glenn M. Jarrell, Rufus Smith, Jr., for appellee.Watkins v. State, 237 Ga. 678, 684 (229 SE2d 465) (1976).
See McDonald v. Pless, 238 U. S. 264 (35 SC 783, 59 LE 1300) (1915); Bishop v. State, 9 Ga. 121, 126 (1850). But see Cammack, The Jurisprudence of Jury Trials: the No Impeachment Rule and the Conditions for Legitimate Legal Decisionmaking, 64 U. Colo. L. Rev. 57, 59-64 (1993) (questioning the importance of Vaise v. Delaval).
Since July 1, 1975, the federal rules of evidence have included the extraneous influence exception in the codification of the no-impeachment rule by providing in Rule 606 (b), as follows:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
(Emphasis supplied.) Federal Rules of Evidence Rule 606, 28 USC.