ICEBERG AHEAD: WHY COURTS SHOULD PRESUME BIAS IN CASES OF EXTRANEOUS JUROR CONTACTS.

• Author: Rumschlag, Andrew S.

CONTENTS INTRODUCTION I. THE LAW GOVERNING EXTRANEOUS JUROR CONTACTS A. Constitutional Impartial-Jury Requirements B. Early Caselaw: Burr and Mattox C. Presuming Prejudice: Remmer 1. The Trial of Bones Remmer 2. Remmer's Presumption D. Incorporation, Impeachment, and Efficiency 1. Incorporation 2. The No-Impeachment Rule, Federal Rule of Evidence 606(b) and Tanner 3. Judicial Efficiency E. Post-Incorporation Caselaw 1. Smith V. Phillips 2. United States v. Olano II. SPLINTERED CASELAW A. Extraneous Contact as Unique: Maintaining Remmer's Presumption B. Extraneous Contacts as Juror Misconduct: No Presumption Available C. Extraneous Contacts as Indistinct from Other Causes for Mistrials: Judicial Discretion III. A PROPOSED PRACTICAL SOLUTION A. Resolving the Overlap of Extraneous Contact and Misconduct B. A Uniform Procedure 1. Court-Initiated Hearings 2. Triggering the Presumption 3. Rebutting the Presumption CONCLUSION APPENDIX A APPENDIX B INTRODUCTION

In its 1954 decision, Remmer v. United States, the Supreme Court declared that outside influences on jurors are "presumptively prejudicial." (1) Although Remmer involved paradigmatic jury tampering, extraneous contacts involving jurors--and juror misconduct more broadly--comes in many forms. (2) Since Remmer, the internet and electronic secondary sources have required courts to address extraneous contact involving internet legal research and social media. (3) And, although the Supreme Court incorporated the Sixth Amendment right to an impartial jury against the states, remedies for extraneous contacts involving jurors vary widely between jurisdictions. (4)

In the half-century following Remmer, although stopping short of explicitly overruling Remmer, the Court cast doubt on the presumption's vitality, sowing widespread confusion among the lower courts. (5) Further, states have adopted myriad procedures aimed at remedying extraneous juror contacts. (6) This variation likely stems from confusion about where extraneous contact with a juror ends and juror misconduct begins. (7)

A presumption that extraneous contacts are prejudicial is not a minor, idiosyncratic difference between jurisdictions. As Justice Brennan once noted, " [T]he assignment of the burden of proof on an issue where evidence does not exist and cannot be obtained is outcome determinative. [The] assignment of the burden is merely a way of announcing a predetermined conclusion." (8) Extraneous contacts present that precise problem. Evidence that a contact biased a juror is generally unavailable due to the no-impeachment rule. Although the rule permits testimony about whether an extraneous contact happened, it generally excludes relevant information that might otherwise prove whether that contact impacted deliberations. (9) When the only fact either party can prove is whether or not extraneous contact happened, rather than what its effects were (i.e., whether a juror manifested bias during deliberation), the burdened party fails.

Put another way, the no-impeachment rule restricts evidence of whether extraneous contacts influenced a jury's verdict, exposing only the proverbial tip of the iceberg. The question is whether to presume until proven otherwise that what lies unseen below the water threatens to sink the defendant's impartial jury guarantee--or whether to sail ahead under the assumption that no danger lurks beneath the waves, in the interest of making good time. (10)

This Note examines the Supreme Court's, federal circuits', and state courts' approaches to remedying extraneous contacts. From those disparate approaches, it attempts to formulate a uniform solution that strikes a constitutionally sound balance between the impartial jury guarantee and judicial efficiency. Part I examines the Supreme Court's extraneous-contact jurisprudence, the Sixth Amendment impartial-jury guarantee's incorporation, and the Federal Rules of Evidence. Part II surveys a three-way split between federal circuits, as well as the patchwork of state approaches to extraneous contacts. Part III proposes a procedure that courts should adopt when analyzing claims of extrinsic juror bias. The proposed procedure strikes an appropriate balance between the constitutional guarantee of an impartial jury and concerns of judicial efficiency.

1. THE LAW GOVERNING EXTRANEOUS JUROR CONTACTS

   American colonists decried the Crown's decision to deprive colonists of their jury-trial right in the Declaration of Independence. (11) While it is unclear how frequently colonists were in fact denied a jury trial, the Crown's actions nevertheless inspired the Sixth and Seventh Amendments. (12) The Supreme Court later held that the right to trial by impartial jury was so fundamental to our concept of ordered liberty that it incorporated the right against the states through the Fourteenth Amendment. (13) Yet the Court's approach to rooting out bias caused by extraneous contacts has trended away from stalwartly protecting the impartial-jury guarantee towards favoring finality. (14) Simultaneously, the range of potential extraneous contacts has broadened, encompassing everything from quintessential jury tampering (15) to jurors researching legal terms of art on Wikipedia. (16) Regardless of how extraneous contact happens, courts are concerned that extraneous contacts will affect a juror's ability to deliberate impartially. (17)

   1. Constitutional Impartial-Jury Requirements

      The impartial-jury requirement appears in the Sixth Amendment's text, which ensures that criminal defendants "enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." (18)

      Even one biased juror may deprive a defendant of her Sixth Amendment right. (19) But an impartial juror need not be "totally ignorant of the facts and issues" of the case for which she is empaneled. (20) Rather, the Supreme Court has described impartiality as a state of indifference that must be assessed on a case-by-case basis. (21) The Court recognized as early as 1963 that "widespread and diverse methods of communication" ensure that well-informed prospective jurors inevitably have some sort of opinion or impression about the case for which they are called. (22) To avoid an impossible standard, it is enough that a juror can set aside any preconceived notions and "render a verdict based on the evidence presented in court." (23)

      Unlike criminal defendants, whose impartial-jury right is rooted in the Sixth Amendment, civil litigants' right to a jury trial is found in the Seventh Amendment. (24) Although the Seventh Amendment does not explicitly guarantee an "impartial" jury, courts have consistently found that the Seventh and Fifth Amendments require impartial juries in civil trials. (25) Although courts have occasionally applied Remmer's holding to civil proceedings, (26) this Note will focus on Remmer's primary application: protecting criminal defendants' Sixth Amendment right to an impartial jury.

   2. Early Caselaw: Burr and Mattox

      While riding circuit in 1807, Chief Justice Marshall had an early opportunity to define the impartial jury guarantee in United States v. Burr. (27) Aaron Burr's attorneys sought to prevent potential jurors from being empaneled. They argued that "inflammatory articles" about Burr's conduct had biased the jurors against him. (28) Marshall explained the practical difficulties of empaneling a truly impartial jury in particularly high-profile cases. (29) "[L]ight impressions," therefore, were permissible--but "strong and deep impressions" that could not yield to evidence at trial were not. (30) Further, whether a party could challenge a potential juror's impartiality depended on whether the impression pertained to a case's dispositive element. (31) Burr's attorneys could therefore challenge only those jurors who "ha[d] made up and delivered the opinion that [Burr] entertained the treasonable designs with which he [was] charged, and that he retained those designs and was prosecuting them when the act charged in the indictment is alleged to have been committed...." (32) Chief Justice Marshall's Burr decision exemplifies the tension between guaranteeing a perfectly impartial jury and empaneling imperfect human jurors. (33) But while Burr instructed courts how to root out bias before empaneling jurors, it did not deal with bias as a result of extraneous contacts with already-empaneled jurors.

      Nearly a century after Burr, the Court foreshadowed its Remmer rule in Mattox v. United States. (34) Clyde Mattox stood trial for murder. (35) During deliberations, the bailiff provided extrajudicial information to the jury. The bailiff told jurors that Mattox would stand trial again on different charges after it returned its verdict--and that his alleged victim was the third person Mattox had killed. (36) Further, the jury was read an excerpt from an article in a local newspaper, which opined that "[i]f [Mattox was] not found guilty of murder he [would] be a lucky man" because of the "very strong" evidence against him. (37)

      Chief Justice Fuller articulated a rule that foreshadowed Remmer's "presumptively prejudicial" doctrine: "Private 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." (38) Because the Mattox Court specified that the default response to extraneous contacts is a mistrial, it implicitly burdened the government to prove the "harmlessness" of "possibly prejudicial" contact with jurors.

      Burr and Mattox laid the doctrinal groundwork for Remmer's procedural solution. Burr defined the Sixth Amendment impartial-jury right. And Mattox burdened the government to prove that any improper extrinsic influence on jurors is not prejudicial.

   3. Presuming Prejudice: Remmer

      Another half-century later, the Court prescribed the procedural remedy for...