Circuit Split: Does Juror Use Of Wikipedia Create Presumption Of Prejudicial Misconduct?

In illegal animal fight promotion case, a juror's misconduct in making an unauthorized Wikipedia search for the definition of an element of the charged offense was presumed prejudicial absent a showing by the prosecution that the error was not harmful to the defendant's substantial rights, in United States v Lawson, 677 F.3d 629 (4th Cir. April 20, 2012) (Nos. 10–4831, 10–4846, 10–4841, 10–4870, 10–4845, 10–4882).

Yesterday, the Federal Evidence Blog examined a split among the circuits as to whether a "presumption of prejudice" applied to a instance of juror misconduct and whether it was the government's burden to demonstrate that the alleged error was not harmful to the defendant in order avoid the need to retry the defendant. That blog essay described an identified split placing the Second, Fourth, Seventh, Ninth, Tenth and Eleventh Circuits, which readily applied such a presumption, against the Fifth, Sixth, Eighth and D.C. Circuits, which did not automatically apply a presumption of prejudice. In Lawson an additional circuit split was identified by the Fourth Circuit. This split concerned whether the type of misconduct that occurred -- unauthorized resort to a research tool -- would trigger the presumption of prejudice, or whether only a more severe form of misconduct, such as third party efforts to tamper or influence the jury are to be presumed prejudicial. Again the circuits split on this issue, although almost along the same lines as the circuits' divided on the presumption of prejudice.

In the case that was the subject the earlier blog post, defendant Lawson along with others was convicted of promoting animal fights in violation of the Animal Welfare Act. Among the challenges to that conviction concerned the court's discovery, six days after the jury verdict, that a Juror #177 had "conducted internet research and had brought materials he obtained on the internet to the jury room during jury deliberations." That juror had looked up "the definition of the term 'sponsor' that appeared in Wikipedia" and may have shared his findings with other jurors during deliberations. After considering whether the standards set forth by the Supreme Court in Remmer applied and identifying a difference between the circuits in its application (subject of previous blog post), the circuit then considered a second issue:

[W]hether the presumption [of prejudice] is applicable in cases involving a juror's unauthorized use of Wikipedia. Initially, we observe that an allegation of jury tampering or of a juror's contact with a third party, such as the incidents that occurred in Remmer,... is of a much different character than a juror's unauthorized use of a dictionary during jury deliberations. Although we previously have considered incidents in which a juror committed misconduct by consulting a dictionary ... the question whether a rebuttable presumption of prejudice arises in such a situation is an issue of first impression in this Court in a case presented on direct appeal.
Lawson, 677 F.3d at 644.

The Fourth Circuit observed there was a split among the circuits on this question as well. The circuit noted that

In resolving the question whether the Remmer presumption applies to a juror's use of a dictionary definition during deliberations, we note that our sister circuits also are divided on this question. In examining their holdings, a clear and predictable pattern is evident. Unsurprisingly, the courts that have applied a rebuttable presumption of prejudice in “dictionary” cases, or alternatively have held that the government bears the burden of establishing that no prejudice occurred, are among the courts that have rejected the view that Remmer has been abrogated.

In contrast, the courts that have declined to apply a presumption of prejudice in these “dictionary” cases are some of the same courts that have held that the Remmer rebuttable presumption of prejudice is no longer applicable.
Lawson, 677 F.3d at 645 (footnote and citations omitted).

The Fourth Circuit distinguished the following cases as examples of circuits that apply the rebuttable presumption to "dictionary" cases from those that do not. For instance:

Circuits Applying Rebuttable Presumption Of Prejudice in "Dictionary" Cases:

  • Third Circuit: United States v. Console, 13 F.3d 641, 665–66 (3d Cir. 1993) (applying presumption of prejudice in case in which juror discussed definition of RICO with her sister, an attorney, and shared the attorney's definition with other jurors during deliberations)
  • Ninth Circuit: Marino v. Vasquez, 812 F.2d 499, 505 (9th Cir. 1987) (holding that unauthorized use of dictionary definitions is reversible error and that government must establish that error is harmless beyond reasonable doubt)
  • Tenth Circuit: United States v. Aguirre, 108 F.3d 1284, 1288 (10th Cir. 1997) (citing Mayhue for proposition that “jury's exposure to extrinsic information [such as a dictionary definition] gives rise to a rebuttable presumption of prejudice”)
  • Eleventh Circuit: United States v. Martinez, 14 F.3d 543, 550 (11th Cir. 1994) (in case involving several categories of extrinsic evidence, including unauthorized use of dictionary to define terms discussed during deliberations, holding that “we assume prejudice and thus, we must consider whether the government rebutted that presumption”)


Circuits Not Applying Rebuttable Presumption Of Prejudice in "Dictionary" Cases:
There was nearly an equal number of circuits that did the opposite and "that have declined to apply a presumption of prejudice" to the “dictionary" cases.” The Fourth Circuit noted that those declining to apply the presumption to dictionary cases were the same circuits that "have held that the Remmer rebuttable presumption of prejudice is no longer applicable." These circuits included:

  • Sixth Circuit: United States v. Gillespie, 61 F.3d 457, 460 (6th Cir. 1995) (“if members of the jury in fact used the dictionary definition [to reach their verdict], the defendant must prove that he was prejudiced thereby; prejudice is not presumed”)
  • Eighth Circuit: United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988) (if the jury “simply supplements the [trial] court's instructions of law with definitions culled from a dictionary, it remains within the province of the judge to determine” whether the defendant was prejudiced)
  • D.C. Circuit: United States v. Williams–Davis, 90 F.3d 490, 502-03 (D.C.Cir. 1996) (holding presumption of prejudice inapplicable to juror's reading of a dictionary definition during deliberations)

The Fourth Circuit associated itself with the circuits that would apply the presumption in a "dictionary" case. The presumption of prejudice applied because "when a juror discusses a case with a third party" it creates "concerns inherent in a juror's unauthorized use of a dictionary during jury deliberations. In both instances, a defendant's Sixth Amendment right to a fair trial is at issue, and the sanctity of the jury and its deliberations have been threatened. In both instances, an extrinsic influence has been injected into the trial, the content of which is beyond the trial court's ability to control. And, in both instances, the procedural and substantive protections that the law affords to the judicial process are limited." The circuit noted that the application of the presumption also depended on the time at which the misconduct was discovered because the trial court may "have an opportunity to take remedial action, such as giving a curative instruction to the jury. Accordingly, our analysis in the present case does not purport to be applicable to other situations in which misconduct is discovered before a verdict is reached, and the district court appropriately acts to alleviate the potential for prejudice." Lawson, 677 F.3d at 646 n.21 (citations omitted).

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