A MANUAL OF JURY TRIAL PROCEDURES

A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Six: Post-Verdict Considerations

6.3     Post-Verdict Evidentiary Hearing Regarding Extraneous Information or Ex Parte Contacts
          A. In General
          B. Burden of Proof
          C. Ex Parte Contacts Distinguished
          D. When an Evidentiary Hearing is Required
          E. What Evidence May be Considered

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A. Post-Verdict Evidentiary Hearing Regarding Extraneous Information or Ex Parte Contacts: In General

When extraneous information has improperly been brought to the jury's attention, the moving party is entitled to a new trial if there is "a reasonable possibility that the extrinsic information could have affected the verdict." Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1988) (emphasis in original). Accord Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Service Co., 206 F.3d 900, 906 (9th Cir.), cert denied, 531 U.S. 919 (2000) (in this Circuit, the same standard applies to both civil and criminal cases). "The inquiry is objective: a court 'need not ascertain whether the extrinsic evidence actually influenced any specific juror.'" United States v. Mills, 280 F.3d 915, 921 (9th Cir.), cert denied, 535 U.S. 1120 (2002), quoting United States v. Keating, 147 F.3d 895, 901-02 (9th Cir. 1998).

A non-exclusive list of factors to be considered includes (1) whether the extrinsic information was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the jury discussed and considered it; (4) whether the extrinsic information was introduced before a verdict was reached, and if so, at what point in the deliberations it was introduced; and (5) any other factors which may bear on the issue of the reasonable possibility of whether the introduction of extrinsic information affected the verdict. United States v. Navarro-Garcia, 926 F.2d 818, 822-23 (9th Cir. 1991).

The introduction of extrinsic information assumes particular importance in criminal cases. When jurors learn of extrinsic facts regarding the defendant or the alleged crime, whether from another juror or otherwise, the speaker "becomes an unsworn witness within the meaning of the Confrontation Clause" of the Sixth Amendment. See Jeffries v. Wood, 114 F.3d 1484, 1490 (9th Cir.) (en banc), cert. denied, 522 U.S. 1008 (1997). See also Dickson, 849 F.2d at 406 (effectively denied the rights of confrontation, cross-examination, and the assistance of counsel).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B. Post-Verdict Evidentiary Hearing Regarding Extraneous Information or Ex Parte Contacts: Burden of Proof

Once it is has been established that extraneous information reached one or more jurors, "the burden is generally on the party opposing a new trial to demonstrate the absence of prejudice." Sea Hawk Seafoods, 206 F.3d at 906.

A special standard may apply to allegations of "jury tampering," as distinguished from "prosaic kinds of jury misconduct." United States v. Dutkel, 192 F.3d 893, 894-95 (9th Cir. 1999). At least in criminal cases, "jury tampering" creates a presumption of prejudice, and the government carries the heavy burden of rebutting that presumption by establishing that the contact with the juror was harmless to the defendant. United States v. Henley, 238 F.3d 1111, 1115 (9th Cir. 2001), citing Remmer v. United States, 347 U.S. 227 (1954) and 350 U.S. 377 (1956). See also Henley, 238 F.3d at 1115-19 (examining this issue, and offering examples of less serious intrusions of extraneous information, where a lesser standard may apply).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

C. Post-Verdict Evidentiary Hearing Regarding Extraneous Information or Ex Parte Contacts: Ex Parte Contacts Distinguished

Allegations of "ex parte contacts with a juror that do not include the imparting of any information that might bear on the case," and do not involve jury tampering, require a new trial only if the court finds actual prejudice to the moving party. Sea Hawk Seafoods, 206 F.3d at 906-08 (tasteless joke by bailiff). But cf. Rinker v. County of Napa, 724 F.2d 1352, 1354 (9th Cir. 1983) ("Any unauthorized communication between a party or an interested third person and a juror creates a rebuttable presumption of prejudice" which "requires a strong contrary showing" to overcome).

See § 5.1.C(1) ("Communication with a Deliberating Jury").

A MANUAL OF JURY TRIAL PROCEDURES - 2004

D. Post-Verdict Evidentiary Hearing Regarding Extraneous Information or Ex Parte Contacts: When an Evidentiary Hearing is Required

Ordinarily, the court will conduct an evidentiary hearing before ruling on a motion for new trial based on allegations of jury tampering or misconduct, or the imparting of extraneous information, especially if the court is considering granting the motion. See United States v. Angulo, 4 F.3d 843, 847-48 (9th Cir. 1993); United States v. Jackson, 209 F.3d 1103, 1109-10 (9th Cir. 2000) (abuse of discretion not to conduct evidentiary hearing to consider allegations of jury tampering). However, an evidentiary hearing is not required every time there is an allegation of jury misconduct or bias. In determining whether to hold a hearing, the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source. United States v. Saya, 247 F.3d 929, 934-35 (9th Cir.), cert. denied, 534 U.S. 1009 (2001). An evidentiary hearing is not necessary if the court knows the exact scope and nature of the extraneous information, id., or it is clear that the alleged misconduct or bias could not have affected the verdict or the allegations are not credible. Angulo, 4 F.3d at 848, n. 7; Navarro- Garcia, 926 F.2d at 822.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

E. Post-Verdict Evidentiary Hearing Regarding Extraneous Information or Ex Parte Contacts: What Evidence May be Considered

Rule 606(b) of the Federal Rules of Evidence governs the scope of a juror's testimony upon an inquiry into the validity of a verdict or indictment. A juror may not testify about how the jurors reached their conclusions. United States v. 4.0 Acres of Land, 175 F.3d 1133, 1140 (9th Cir.) (error to grant new trial based on juror's statements to the press regarding the impact of evidence), cert. denied, 528 U.S. 1047 (1999).

Rule 606(b) does permit a juror to testify regarding "extraneous prejudicial information [that] was improperly brought to the jury's attention." However, it is essential to distinguish between testimony regarding the fact that extrinsic information was brought to the jury's attention (e.g., the substance of the communication, who knew about it and when, and the extent it was discussed) versus the subjective effect of that extraneous information upon the mental processes of a particular juror in reaching a verdict (e.g., "I changed my vote as a result of that new information"). Testimony regarding the former is permissible, but testimony about the latter is not. See Rushen v. Spain, 464 U.S. 114, 121 n. 5 (1983); Henley, 238 F.3d at 1117-18; Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000). But cf. Mills, 280 F.3d at 922 (suggesting the rule may not be absolute).

Thus, a juror may testify that he conducted an independent investigation and reveal the substance of what he communicated to his fellow jurors concerning that investigation, but he may not be questioned about the subjective impact of that information upon their deliberations. United States v. Bagnariol, 665 F.2d 877, 884- 85 (9th Cir. 1981), cert. denied, 456 U.S. 962 (1982). See also Rhoden v. Rowland, 10 F.3d 1457, 1459-60 (9th Cir. 1993) (jurors could be asked whether they saw the defendant shackled during trial and whether they had discussed it with other jurors).

Testimony regarding a juror's "general fear and anxiety following a tampering incident" is admissible. United States v. Elias, 269 F.3d 1003, 1020 (9th Cir. 2001), cert. denied, 537 U.S. 812 (2002). Testimony regarding racial bias during deliberations may also be permissible. See Henley, 238 F.3d at 1119-21 (discussing, but ultimately not deciding, that question). Cf. Rushen, 464 U.S. at 121, n. 5 (a juror may testify on any mental bias in matters unrelated to specific issues that the juror was called on to decide).

Under Fed. R. Evid. 606(b), jurors may not testify about other jurors' use of alcohol or drugs during the trial. Tanner v. United States, 483 U.S. 107, 122 (1987).

See also §§ 3.14.C and 5.1.C.