Prejudice, Procedure, and a Proper Presumption: Restoring the Remmer Presumption of Prejudice in Order to Protect Criminal Defendants' Sixth Amendment Rights

AuthorEva Kerr
PositionJ.D., The University of Iowa College of Law
Pages02

J.D., The University of Iowa College of Law, 2008; B.S., The University of Iowa, 2003. I would like to thank all of the editors and student writers of the Iowa Law Review for their comments and feedback throughout the publication process. I would also like to thank my family and friends for their constant love and support.

Page 1453

I'm no idealist to believe firmly in the integrity of our courts and in the jury system- that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. 1

-Harper Lee, To Kill a Mockingbird

[A jury is] the most ingenious and infallible agency for defeating justice that human wisdom could contrive . . . . 2

-Mark Twain, Roughing It

I Introduction

The fairness and impartiality of the jury system in this country has been equally revered and questioned. Nevertheless, the jury system remains a fundamental component of American jurisprudence,3 and maintaining the criminal defendant's Sixth Amendment right to a trial by an impartial jury remains crucial to the administration of justice. Jury exposure to extraneous, and possibly prejudicial, information deprives a criminal defendant of his or her Sixth Amendment right to a trial by an impartial jury.4 Extraneous information that may affect the verdict includes jury exposure to nonevidentiary information, external contacts between jurors and third parties (such as third-party attempts to bribe jurors), and information from the jurors' own personal knowledge.5 This Note examines the Supreme Court's inconsistent decisions regarding whether prejudice should be presumed when jury exposure to extraneous information threatens a criminal defendant's Sixth Amendment right to a trial by an impartial jury. This Note then examines the resulting confusion among the federal courts of appeals.

Part II of this Note discusses the history behind the criminal defendant's Sixth Amendment right to a trial by an impartial jury,6 including the presumption-of-prejudice standard articulated in Remmer v. United States.7 Page 1454 Part II also discusses Federal Rule of Evidence 606(b) and two post-Remmer Supreme Court decisions that are seemingly inconsistent with Remmer, and then examines how both Rule 606 and the Supreme Court decisions have played a role in prompting several circuit courts to narrow the breadth of Remmer's presumption of prejudice.8 Part III provides a general overview of the different standards the circuit courts currently apply after a jury is exposed to extraneous information.9

Part IV argues that the issue presented in Wisehart v. Davis-whether the Remmer presumption of prejudice survived the inconsistent, subsequent Supreme Court decisions-is ripe for resolution. More specifically, this Note argues that the Supreme Court needs to address this issue because the circuit courts currently apply widely varying standards that produce inconsistent results for criminal defendants and because maintaining the criminal defendant's Sixth Amendment rights is crucial to the administration of justice. 10 In Wisehart, the defendant presented a juror affidavit on appeal stating that the juror learned that the court cancelled a session so the defendant could take a polygraph test.11 The juror did not learn the results of the polygraph test.12 In concluding that the affidavit raised a reasonable suspicion of jury contamination, the Seventh Circuit applied the Remmer presumption of prejudice but emphasized the importance of maintaining a harmless-error exception.13

Part IV analyzes the two competing policy concerns implicated by the impeachment of verdicts: (1) ensuring each verdict is rendered by a fair and impartial jury and (2) maintaining the integrity of the jury system on the whole.14 Part IV concludes that courts should maintain the Remmer presumption of prejudice in all cases other than those involving innocuous interventions because the presumption protects the criminal defendant's Sixth Amendment rights while simultaneously avoiding impeachment of jury verdicts based on trivial or insignificant prejudice claims.15 Page 1455

II Jury Exposure To Extraneous Information: The Historical Background And The Development Of The Presumption Of Prejudice
A Sixth Amendment Right To A Jury Trial

Juror exposure to extraneous information is a major source of prejudice. Such exposure deprives a criminal defendant of the Sixth Amendment right to a trial by an impartial jury.16 The Sixth Amendment also guarantees a criminal defendant "the right to be present at all critical stages of the . . . proceedings."17 For example, a defendant possesses the right to be present during communications between the judge and the jury whenever the defendant's presence has a "'reasonably substantial'" relation to the defendant's "'opportunity to defend against the charge.'"18 The Due Process Clause protects the criminal defendant's Sixth Amendment rights in state courts.19 The Supreme Court has noted:

[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. . . . [I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.20

Thus, the denial of a trial by an impartial jury also violates the defendant's due-process rights.21

Extraneous information that may affect a verdict includes external contacts between jurors and third parties, and jury exposure to nonevidentiary information.22 Examples of external contacts include third-party Page 1456 attempts to bribe jurors, and communications between jurors and the deputy sheriffs or between jurors and the court bailiff during the trial.23Other extraneous, non-evidentiary information that may prejudice the jury includes the juror's personal knowledge of relevant information or "official documents and records made available to the jury."24 The information may reveal the defendant's prior criminal record, the defendant's other prior misconduct, or a co-defendant's pleading.25 Evidence used by the jury to convict a defendant should "'come from the witness stand . . . where there is full judicial protection of the defendant's right to confrontation, of cross- examination, and of counsel.'"26 A jury's use of extraneous material prejudices a defendant in two ways. First, the extraneous material may comprise information that would be inadmissible at trial, when judged by valid evidentiary-rule limits. Second, the extraneous material's use denies the defendant the opportunity to introduce the evidence himself.27 When jurors engage in ex parte communications or access extraneous information outside court, the defendant cannot impeach the evidence, provide an explanation for the extraneous material, or engage in cross-examination.28

In Mattox v. United States, the Supreme Court articulated the type of prejudice that juror exposure to extraneous information produces.29 In Mattox, a juror who served on the jury that convicted the defendant submitted an affidavit to the court alleging that (1) the bailiff discussed the case with the jury and (2) a newspaper article addressing the case entered the jury room and was read to the jury.30 The Supreme Court held that the affidavit was material evidence of prejudice, stating: "Private communications, possibly prejudicial, between jurors and third persons, or Page 1457 witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear."31 Mattox, therefore, stands for the proposition that, absent a showing of harmlessness, improper extraneous influences on the jury constitute prejudice sufficient to invalidate a verdict.

The Supreme Court expounded on Mattox in Remmer v. United States.32In Remmer, a third party attempted to bribe a juror in exchange for a verdict favorable to the defendant.33 The trial judge, without informing the defense, asked the FBI to investigate the matter and found that the attempted bribe was harmless and that the verdict should stand.34 On appeal, the Supreme Court held that the attempted bribe presumptively prejudiced the jury, and the Court remanded the case for a hearing to investigate the matter.35 In its opinion, the Court stated:

In a criminal case, any private communication, contact, or tampering directly or...

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