A "Harmless" Out-Of-Court Juror Experiment

Despite allegation of jury misconduct when two jurors conducted an out-of-court experiment regarding the defendant's version of how the charged murder occurred, no certificate of probable cause was warranted regarding a Sixth Amendment violation in light of the harmless of the jury's exposure to extraneous information that (a) was not unduly prejudicial, (b) was information already within the jurors' common knowledge, (c) failed to affect the defendant's credibility before the jury, and (d) was simply cumulative to the already substantial evidence of the defendant's guilt as charged, in Henry v. Ryan, __ F.3d __ (9th Cir. June 19, 2013) (No. 09–99007)

In a blog article run on December 3, 2010 in the FederalEvidenceBlog we noted a Sixth Circuit case, Garcia v. Andrews, 488 F.3d 370, 376 (6th Cir. 2007), that addressed the need for an evidentiary hearing when allegations of juror misconduct arise in a case. Sixth Amendment Fair Trial Right and the Intrinsic vs. Extrinsic Influence Distinction (Dec. 3, 2010). Last week the Ninth Circuit considered a similar case involving the same type of issue in a slightly different context. Contrasting the Ninth Circuit's disposition with the earlier Sixth Circuit treatment provides insight into enforcement of the right to a fair trial.

In the Ninth Circuit case, the defendant, who had been convicted in state court of first-degree murder and other related crimes sought habeas relief from the federal courts once his direct attack on the verdict had been exhausted. As part of his collateral attack, one ground for habeas relief he claimed was that the jury that convicted him had misconducted itself, listening to extraneous information developed by two jurors who experimented as to whether part of the defendant's story of the alleged crime was credible. According to the defendant, over a decade after his conviction, a defense investigator had talked to one of the jurors in the defendant's trial who told him that

two other jurors had performed an experiment to test Henry's contention that he could hear Foote and Estes arguing from the camper of Estes' truck. After driving a similar vehicle down a gravel road, these jurors concluded that Henry could not have heard an argument occurring in the truck's cab. They shared their results with other members of the jury.
Henry, __ F.3d at __.

When this evidence was presented to the state trial court, it concluded that even if true, the alleged juror misconduct was harmless to the results of the trial. The court declined to make further inquiry, which the state appellate court supported, as did the U.S. district court that considered the defendant's habeas petition. The Ninth Circuit approach to the defendant's claims met a similar fate. The circuit declined to address whether the jury misconduct undermined the verdict. In part, the circuit could avoid this matter -- it was "a question we need not and do not reach" — because in any event, the defendant was unable to that even had the misconduct occurred as alleged, it was unclear that "the alleged misconduct had a 'substantial and injurious' effect on the verdict." Henry, __ F.3d at __ (citing Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000) (applying the Brecht v. Abrahamson, 507 U.S. 619 (1993), “substantial and injurious” standard in habeas review of a juror misconduct claim)).

In declining to examine the juror activities alleged by the defendant, the circuit noted that:

Supreme Court and Ninth Circuit cases finding prejudicial juror misconduct have involved far different circumstances. The Supreme Court, for instance, has found juror misconduct to warrant reversal in cases involving extended external influences on jurors or confirmed juror bias—neither of which is present here. Similarly, the circumstances in this case are readily distinguishable from cases in which we have concluded that juror misconduct warranted a new trial.
Henry, __ F.3d at __ (citing Tong Xiong v. Felker, 681 F.3d 1067, 1076–77 (9th Cir. 2012) ("Generally speaking, “[p]rivate communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.” However, this does not mean that all extraneous information is per se prejudicial") (citation omitted))

The Circuit enumerated four factors that suggested that any alleged misconduct was harmless, including:

  1. Whether The Extraneous Information Was "Inherently Inflammatory" or "Unduly Prejudicial": The circuit cited a number of cases in which it had provided relief where the defendant was able to show inherent inflammatory or that the evidence had been excluded, such as Mancuso v. Olivarez, 292 F.3d 939, 953 (9th Cir. 2002) (“Juror misconduct cases in which habeas relief has been granted often involve the jury's receipt of information excluded from trial as unduly prejudicial such as evidence of the facts surrounding a defendant's prior conviction, bad reputation, or propensity to violate the law.”); Sassounian v. Roe, 230 F.3d 1097, 1104, 1112 (9th Cir.2000) (reversing a special circumstance jury verdict where it was reached after the jury improperly considered evidence that had not been presented at trial because it had been ruled inadmissible))
  2. Confirms Common Sense: The circuit noted that any extraneous information "is less likely to be prejudicial when, as in this case, it 'merely confirmed what any reasonable juror already knew.'” Here, the state trial court reasonably found that the extraneous information about whether a person lying in the camper of a truck could hear an argument occurring in the cab fell within the common knowledge of most jurors." Henry, __ F.3d at __ (citing United States v. Bagnariol, 665 F.2d 877, 888 (9th Cir. 1981); Rodriguez v. Marshall, 125 F.3d 739, 745 (9th Cir.1997) (discounting claim of prejudice when extrinsic evidence considered was within the common knowledge of most reasonable jurors))
  3. Cumulative Information: The circuit briefly addressed this third factor. "Henry's credibility was already thoroughly impeached at trial," the circuit noted, "making the extraneous information cumulative. Henry, __ F.3d at __ (citing Henry, __ F.3d at __ (citing Tong Xiong v. Felker, 681 F.3d 1067, 1078 (9th Cir. 2012) (upholding as reasonable the state court's factual determination that the petitioner was not prejudiced by the jury's consideration of extrinsic evidence because a witness's credibility was so impeached at trial that extrinsic evidence further impeaching his credibility was merely cumulative))
  4. Overwhelming Evidence Of Guilt: A final factor that ensured that any extrinsic evidence the jurors had been exposed "could not have had" a substantial and injurious impact on the verdict was that "the evidence supporting Henry's guilt was substantial, and the jury could have convicted him under a felony-murder or accomplice theory even if it believed Henry's story that he was in the camper of the truck and did not join Foote in dragging Estes up the berm." Henry, __ F.3d at __ (citing United States v. Montes, 628 F.3d 1183, 1186, 1190 (9th Cir. 2011) (rejecting a juror misconduct claim where “the prosecution presented overwhelming evidence” of the defendants' guilt))

As with the Sixth Circuit's disposition of Garcia v. Andrews, 488 F.3d 370, 376 (6th Cir. 2007), the Ninth Circuit as well found no error in denying the defendant's request for an evidentiary hearing about the alleged juror misconduct. Such a hearing would be necessary when the defendant could show "any additional evidence that could be properly pursued at an evidentiary hearing to show that the alleged misconduct had a substantial and injurious influence on the verdict." Henry, __ F.3d at __ (citing Rhoades v. Henry, 638 F.3d 1027, 1052 (9th Cir. 2011) (“Rhoades points to no additional evidence that would be presented if an evidentiary hearing were held. In short, no abuse of discretion appears.”)


Federal Rules of Evidence