Rebutting The Presumption Of Prejudice From Juror's Google Search

After the trial court learned that during deliberations a juror "using the electronic search engine 'Google,' had discovered" that the co-conspirator "had pleaded guilty to unspecified charges and then communicated that fact to other jurors", the trial court properly refused to make an inquiry into the validity of the verdict and denied the motion for a mistrial ; the presumption of prejudice from exposure to extra-record evidence was rebutted by a showing that the information was harmless and since the defendant had conceded the co-conspirator's guilt, in United States v. Farhane, 634 F.3d 127 (2d Cir. Feb. 4, 2011) (Nos. 07-5531-CR CON, 07-1968-CR L)

FRE 606(b) limits the competence of jurors to testify about the course of a jury's deliberations, except for several well-defined exceptions. But what happens once it is clear that a juror has misconducted him or herself? Is a mistrial inevitable? Generally, juror use of extraneous information or material creates a presumption of prejudice. Remmer v. United States, 347 U.S. 227, 229 (1954) (a presumption of prejudice is used whenever extra-record materials or communications with jurors happens during the criminal trial). But as easily as this presumption might arise, it can be rebutted by a showing that the extrinsic material was harmless in light of the rull record of the trial. See United States v. Williams-Davis, 90 F.3d 490, 503-04 (D.C. Cir. 1996) (after a juror and alternate drove through defendant's neighborhood, presumption of prejudice rebutted with information that it was cumulative of evidence already admitted at trial). A recent Second Circuit Case examines application of this presumption when a juror's google search turned up that a co-conspirator had pled guilty.

In the case, defendant Farhane, who used the name Sabir, was a New York-licensed emergency medicine doctor who "swore an oath of allegiance to al Qaeda and promised to be on call to treat wounded members of that terrorist organization in Saudi Arabia." He was tried for conspiring to provide, and actually providing or attempting to provide, material support to a terrorist organization. He was apprehended as part of an investigation of a "longtime friend" Shah for transferring money to Afghanistan insurgents.

In the course of that investigation, the government recorded Shah "speaking openly about his commitment to jihad (holy war) in order to establish Sharia (Islamic law) and about his wish to provide “deadly and dangerous” martial arts training to mujahideen (jihad warriors)." In doing so, Shah "repeatedly identified Sabir as his 'partner'" in the scheme to advance a holy war. Shah's arrest, which also led to Sabir, was a result of his dealing with a person (Soufan) he thought was "a recruiter for al Qaeda," but who actually was "an undercover FBI agent." In addition, a confidential informant (Saeed) tracked Shah's and Sabir's actions. For example, on "May 20, 2005, during a visit to New York, Sabir met with Saeed and Agent Soufan at Shah's Bronx apartment. Sabir told Soufan that he would soon be returning to Riyadh[, Saudia Arabia]. He expressed interest in meeting with mujahideen operating in Saudi Arabia and agreed to provide medical assistance to any who were wounded." Farhane, 634 F.3d at 133.

After their arrest, Shah "pleaded guilty" to conspiring to provide material support or resources to the terrorist organization al Qaeda. Sabir proceeded to trial, which included extensive use of recordings made of the defendant and Shah by the government operatives. As part of his appeal of his conviction, Sabir contended that "[i]n the course of jury deliberations, the district court learned that Juror # 8, using the electronic search engine 'Google,' had discovered that co-defendant [and co-conspirator] Tarik Shah had pleaded guilty to unspecified charges and then communicated that fact to other jurors." The defendant unsuccessfully sought to have the judge declare a mistrial or grant a new trial because of the jury's exposure to extra-record evidence. Farhane, 634 F.3d at 168.

The Second Circuit agreed that the conduct of the juror was grievous. But there was no error in denying a mistrial or a retrial because the juror's misconduct did not harm Sabir's defense. In addressing the available remedies for juror misconduct, the circuit balanced the concerns for a fair trial with "the deeply rooted view that 'the secrecy of deliberations is essential to the proper functioning of juries'" as protected by FRE 606(b)'s disqualification for juror testimony to the extent it deals with "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." FRE 606(b).

The circuit noted that this balance involved applying a presumption that prejudice resulted from the juror's misconduct, unless this presumptiuon was "rebutted by 'showing that the extra-record information was harmless.'" Farhane, 634 F.3d at 168 (citing Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994); United States v. Schwarz, 283 F.3d 76, 99 (2d Cir. 2002) (“[N]ot every instance of a juror's exposure to extrinsic information results in the denial of a defendant's right to a fair trial. Many such instances do not.”))

Making this balanced assessment required that the trial court make an "objective" inquiry consisting of two elements:

  • First, the court should identify "the nature of the information or contact" that underlies the charge of juror exposure to extrinsic evidence, and
  • Second, the court should assess the "probable effect" the alleged exteraneous information or contact would have "on a hypothetical average jury."

Farhane, 634 F.3d at 169 (citing Bibbins v. Dalsheim, 21 F.3d at 17 (noting objective inquiry required); United States v. Schwarz, 283 F.3d 76, 99 (2d Cir. 2002) (noting two-part inquiry)).

The Second Circuit particularly cautioned about the limits FRE 606(b) places on this inquiry: The first element of the test considers the “entire record” to make an objective assessment of possible prejudice. "This includes circumstances surrounding the jurors' exposure to the information. But a court may not reach further to inquire into the subjective effect of the information on jurors' mental processes or on the jury's deliberations. This limitation, memorialized in Fed. R. Evid. 606(b), is grounded in the deeply rooted view that “the secrecy of deliberations is essential to the proper functioning of juries.” Farhane, 634 F.3d at 169 (citing United States v. Thomas, 116 F.3d at 618-19 (collecting authorities); United States v. Greer, 285 F.3d at 173 (noting assessment of circumstances surrounding the jurors'exposure to the exteraneous information))

In applying this test, the circuit concluded the trial judge did not err in denying defendant's motion for a mistrial and for a new trial. As explained by the circuit:

The district court reasonably considered the 'nature' of the extrinsic evidence-an Internet report of Shah's guilty plea-in light of Sabir's summation concession that Shah was, in fact, guilty: '[I]f this was a case about Tarik Shah, I wouldn't even have got up. Tarik Shah is guilty.' The district court concluded that, in these circumstances, Sabir was unlikely to be harmed by extrinsic information entirely consistent with his own concession at trial." The case would be diferent if the jury had discovered Shah's "guilty plea in a case where Sabir's defense did not concede his codefendant's guilt." In such a case, the jury learned no new information, so the circuit concluded that as the defendant had conceded that Shah had been adjudged guilty, "the jury's discovery that a guilty co-defendant had, in fact, pleaded guilty, was unlikely to deprive Sabir of a fair trial.
Farhane, 634 F.3d at 169.


The circuit also noted the trial judge took corrective steps that only reinforced the conclusion that the juror misconduct did not cause the defendant harm. For instance, the trial judge questioned jurors on the extraneous information. "When Juror # 8 was asked if anything would prevent her from being fair and impartial in judging Sabir's case, she replied that there was not. Asked if she would be able to follow the court's instruction to judge the case solely on the basis of the trial evidence, Juror # 8 answered, “Definitely.” We have recognized that, in appropriate circumstances, confirmation of a juror's ability to follow cautionary instructions can indicate the lack of harm from misconduct." Farhane, 634 F.3d at 169 (citing United States v. Thai, 29 F.3d 785, 803 (2d Cir. 1994); United States v. Abrams, 137 F.3d at 708).

Should the discovery of the juror's misconduct have prompted the court to make further inquiries? The defendant argued that the trial judge could not properly assess the harm caused by the juror's actions:

without further asking Juror # 8 whether she had "Googled" Sabir himself. We disagree. Such a leading question might itself have "create[d] prejudice" by implying that a broader search could yield further information about Sabir. The district court acted well within its discretion in instead asking Juror # 8 more generally whether she had uncovered any information beyond the fact of Shah's guilty plea and, upon receiving a negative response, making no further inquiry particular to Sabir.

We further conclude that the district court did not abuse its discretion in declining to question the remaining jurors individually. Addressing the jury as a whole, the district court instead repeated certain instructions potentially implicated by Juror # 8's actions. These specifically included the following:

It is your function in this case to decide the issues of fact. Your decision on the issues of fact is to be based solely on the evidence. Nothing I say is evidence. Nothing any of the lawyers say is evidence. Questions by themselves are not evidence. Objections are not evidence. Testimony that has been excluded or which you're told to disregard is not evidence. The evidence consists of the sworn testimony of the witnesses and the exhibits that have been received into evidence for your consideration. Also, in some instances there were facts the lawyers agreed to or facts that I instructed you to find.

... You may not draw any inference, favorable or unfavorable, toward the government or the defendant from the fact that any person in addition to the defendant is not on trial here. You also may not speculate as to the reasons why other persons are not on trial. Those matters are wholly outside your concern and have no bearing on your function as jurors.

...

Now, ladies and gentlemen, is there any juror who is unable or unwilling to follow those instructions? Anyone?"
Farhane, 634 F.3d at 170 (citing United States v. Abrams, 137 F.3d at 708)


The circuit concluded that as "no juror indicated that he or she would have a problem following these instructions, the district court reasonably concluded from the totality of the circumstances that the misconduct at issue did not warrant either a mistrial or new trial. Farhane, 634 F.3d at 170 (citing United States v. Thai, 29 F.3d at 803; United States v. Greer, 285 F.3d at 173; United States v. Abrams, 137 F.3d at 708).

As noted in prior blog articles, many courts are now finding it necessary to provide jurors with more explicit guidance about the use of electronic communications technologies during their jury service. For examples, consider:

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