Circuit Split On Application Of Remmer Juror Misconduct Presumption

Reversing and remanding defendant's conviction after the defendant alleges juror misconduct (making an unauthorized Wikipedia search for the definition of an element of the charged offense) deprived the defendant of his Sixth Amendment right to a fair trial; Fourth Circuit notes that other circuits are split on applying the presumption that any external influence was harmful, unless otherwise shown by the prosecution, 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)

In the past, we have examined the problem of discouraging jurors from using the Internet or other reference sources for independent research on a pending trial. See, e.g., Federal Jury Instructions Resource Page - Juror Use Of Electronic Social Media (highlighting the key role of jury instructions and dealing with juror use of phone, smart phone, iPhone, Blackberry or computer, etc.), as well as blog posts topics that touch on this issue, such as Rebutting The Presumption Of Prejudice From Juror's Google Search, or New Model Ninth Circuit Admonition To Jurors On Use Of High-Tech Communications Resources. In a case decided last week, the Fourth Circuit examined the options faced by a trial court confronting a claim of juror misconduct in using the Internet to research issues at trial. In addition to finding grounds for reversal and that the error was not harmless, the opinion reviewed the position of the other circuits on applying a presumption of prejudice.

In the case, defendant Lawson and other co-defendants were convicted of promoting animal fights in violation of the Animal Welfare Act. After conviction, the defendant raised several challenges to the conviction. Included in those challenges was the charge that "a juror's misconduct in performing unauthorized research of the definition of an element of the offense on (Wikipedia), an 'open access' internet encyclopedia, deprived him [defendant] of his Sixth Amendment right to a fair trial." Lawson, 677 F.3d at 634.

The issue of the juror misconduct arose six days after the verdict. One juror told a courtroom security officer that another juror (Juror #177) "has consulted certain internet sources the morning before the jury reached its verdict." The trial judge held a hearing to "determine whether the verdict had been tainted by Juror 117's actions." All of the jurors on the panel were questioned. The hearing confirmed that Juror 117 had "conducted internet research and had brought materials he obtained on the internet to the jury room during jury deliberations." The jurors disagreed about how extensively Juror 117 had shared the results of his internet research with juror members. It seemed and the court learned that the research had involved "the definition of the term 'sponsor' that appeared in Wikipedia" which was also part of an element of the offense that was charged. After the trial court's inquiry, the court sanctioned the wayward juror but but declined to act further. It found that the error was harmless and as there was "no reasonable possibility that the external influence caused actual prejudice." Lawson, 677 F.3d at 641.

The Fourth Circuit disagreed. According to the circuit, the starting point for inquiry into juror misconduct was to consider whether the defendant was entitled to a rebuttable presumption of prejudice. The trial court failed to address the rebuttable presumption. This was a matter of some confusion and in the Fourth Circuit, constituted error.

The Fourh Circuit identified this confusion over the application of its decision in United States v. Remmer, 347 U.S. 227 (1954) (a rebuttable presumption of prejudice arose upon showing that an unknown individual attempted to communicate with a juror). While in some circuits it is a matter of dispute, in the Fourth Circuit, "once a defendant introduces evidence that there was an extrajudicial communication that was 'more than innocuous,' the Remmer presumption is 'triggered automatically,' and '[t]he burden then shifts to the [government] to prove that there exists no ‘reasonable possibility that the jury's verdict was influenced by an improper communication.’ (citing Cheek, 94 F.3d at 141.

The Circuit described a split among the circuits. Five circuits align with the position of the Fourth Circuit:

  • Second Circuit: United States v. Greer, 285 F .3d 158, 173 (2d Cir. 2002) (citing Remmer for proposition that “[i]t is well-settled that any extra-record information of which a juror becomes aware is presumed prejudicial” and that “[a] government showing that the information is harmless will overcome this presumption”)
  • Seventh Circuit: United States v. Moore, 641 F.3d 812, 828 (7th Cir. 2011) (extra-record information of which a juror becomes aware is presumed prejudicial)
  • Ninth Circuit: United States v. Dutkel, 192 F.3d 893, 895–96 (9th Cir. 1999) (applying Remmer presumption in jury tampering case and disagreeing that the presumption has been abrogated);
  • Tenth Circuit: Mayhue v. St. Francis Hospital of Wichita, Inc., 969 F.2d 919, 922 (10th Cir. 1992) (“The law in the Tenth Circuit is clear. A rebuttable presumption of prejudice arises whenever a jury is exposed to external information in contravention of a district court's instructions.”)
  • Eleventh Circuit: United States v. Ronda, 455 F.3d 1273, 1299 (11th Cir. 2006) (if defendant establishes that jury has been exposed to extrinsic evidence or contacts, “prejudice is presumed and the burden shifts to the government to rebut the presumption”)

In contrast, four other circuits follow a different approach:

  • Fifth Circuit: United States v. Sylvester, 143 F.3d 923, 933–35 (5th Cir. 1998) (holding that Phillips and Olano effectively rejected Remmer's rebuttable presumption, and that “only when the [trial] court determines that prejudice is likely should the government be required to prove its absence”)
  • D.C. Circuit: United States v. Williams–Davis, 90 F.3d 490, 495–97 (D.C.Cir. 1996), (holding that Phillips and Olano narrowed the Remmer presumption, and that trial court must determine whether particular intrusion showed “likelihood of prejudice,” which would place on the government the burden of proving harmlessness)
  • Sixth Circuit: United States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984) (holding that Phillips altered law such that Remmer rebuttable presumption is no longer applicable, and that burden to establish prejudice rests with defendant);
  • Eighth Circuit: United States v. Blumeyer, 62 F.3d 1013, 1017 (8th Cir. 1995) (citing Olano for proposition that defendant has burden to prove actual prejudice in cases involving extrinsic juror contact pertaining to issues of law, but not to issues of fact)

Two other circuits conditionally apply the presumption:

  • First Circuit: United States v. Bradshaw, 281 F.3d 278, 287–88 (1st Cir. 2002) (observing that the Remmer presumption is still applicable in First Circuit “only where there is an egregious tampering or third party communication which directly injects itself into the jury process”) (citation omitted)
  • Third Circuit: United States v. Lloyd, 269 F.3d 228, 238 (3d Cir. 2001) (applying presumption of prejudice when a jury is exposed to extraneous information “of a considerably serious nature”).

Having identified the circuit split on the application of the Remmer presumption, the Fourth Circuit identified a second issue that required exploration. This issue concerned whether the presumption that the error was harmless could be applied when the extraneous influence itself was a reference work, such as a dictionary or an on-line reference source. This issue will be the subject of a second blog post on the Federal Evidence Blog.


Federal Rules of Evidence