A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Three: The Trial Phase
3.14 Juror Exposure To Extrinsic
Influences
A.
In General
B.
Evidentiary Hearing
C.
Types of Extraneous Influences
A MANUAL OF JURY TRIAL PROCEDURES - 2004
A. Juror Exposure To Extrinsic Influences: In General
NCJIC Materials Related To This Issues:
NCJIC 16.4 [Juror Exposure To And Consideration Of Extrinsic Evidence And Other Matters Not Admitted Into Evidence]
When the trial court becomes aware that someone has made some kind of improper contact with a juror, the court should determine the circumstances, the impact upon the juror, and whether the contact was prejudicial, in a hearing in which all interested parties are permitted to participate. United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982) and 459 U.S. 906 (1982), superseded by rule as stated in United States v. Huntress, 956 F.2d 1309 (5th Cir. 1992); United States v. Myers, 626 F.2d 365 (4th Cir. 1980).
A MANUAL OF JURY TRIAL PROCEDURES - 2004
B. Juror Exposure To Extrinsic Influences: Evidentiary Hearing
NCJIC Materials Related To This Issues:
NCJIC 16.4 [Juror Exposure To And Consideration Of Extrinsic Evidence And Other Matters Not Admitted Into Evidence]
Upon a motion for mistrial or new trial based on the jury
's consideration of extrinsic evidence, "[a]n evidentiary hearing must be granted unless the alleged misconduct could not have affected the verdict or the district court can determine from the record before it that the allegations are without credibility." United States v. Navarro-Garcia, 926 F.2d 818, 822 (9th Cir. 1991). See also United States v. Wilson, 7 F.3d 828 (9th Cir. 1993), cert. denied, 511 U.S. 1134 (1994). In addition, the court "must" hold a fair evidentiary hearing when a reasonable possibility of prejudice to the jury's verdict arises from ex parte contacts with a juror. A "reasonable possibility" of prejudice does not arise when a court or its staff shows a "courtesy" to a juror by providing the juror a ride to a bus stop and such service was offered by the judge in open court and the defendant, who claimed his due process rights were violated, failed to object to this service. United States v. Velasquez-Carbona, 991 F.2d 574, 576 (9th Cir.), cert. denied, 508 U. S. 979 (1993). "[N]ot every incident of a juror's ex parte contact . . . constitute[s] actual prejudice . . . ." United States v. Maree, 934 F.2d 196, 20 (9th Cir. 1991). Rather, a new trial is warranted only "if there existed a reasonable possibility that the extrinsic material could have affected the verdict." United States v. Plunk, 153 F.3d 1011, 1024 (9th Cir. 1998) (quoting from United States v. Vasquez, 597 F.2d 192, 193 (9th Cir. 1979)).A MANUAL OF JURY TRIAL PROCEDURES - 2004
C. Juror Exposure To Extrinsic Influences: Types Of Extraneous Influences
NCJIC Materials Related To This Issues:
NCJIC 16.4 [Juror Exposure To And Consideration Of Extrinsic Evidence And Other Matters Not Admitted Into Evidence]
There are two different standards for judging extraneous influences on jurors. If the juror has been exposed to extraneous material, then the trial court should grant a new trial if there is a reasonable possibility that the material could have affected the verdict. United States v. Keating, 147 F.3d 895, 900 (9th Cir. 1998); United States v. Navarro-Garcia, 926 F.2d 818, 821 (9th Cir. 1991). However, if the juror has been exposed to improper ex parte contact, the trial court should grant a new trial only if the court finds actual prejudice to the defendant. United States v. Madrid, 842 F.2d 1090, 1093 (9th Cir.), cert. denied, 488 U.S. 912 (1988). See also United States v. Harber, 53 F.3d 236, 242 (9th Cir. 1995) (Where the intrusion into the jury
's deliberations is by a law enforcement officer who was a prosecution witness or who made comments regarding the defendant's guilt, prejudice to the defendant's right to due process is inherent or presumptive.). See § 5.1.C and 6.3.