When Must the Court Investigate Juror Misconduct?
We’ve written before about Fed. R. Evid. 606 and the aliunde principle, which bars inquiry into juror deliberations. While this rule has a very clear role in ensuring the finality of verdicts, it also makes policing serious juror misconduct difficult. Tanner v. United States, [1] is the most infamous example, where the Supreme Court refused to grant a new trial despite evidence that the jury was drunk, high, and/or asleep for substantial parts of the proceedings, consuming pitchers of beer and liters of wine during recesses and somehow smuggling marijuana and cocaine into the courthouse.
But even Tanner and its progeny recognize that there are levels of juror misconduct that the court cannot allow. While courts may shrug their shoulders about jurors who fall asleep or flip coins, nobody seriously wants jurors taking bribes or secretly arranging dates with the parties or their counsel. This recognition is reflected in the exceptions built into Rule 606(b) itself:
b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions . A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
But what exactly is an “inquiry into the validity of a verdict?” And what precisely do you have to show to have an inquiry ordered by the court?
In the federal criminal context, a hearing to investigate juror misconduct is usually called a Remmer hearing. As is often true when juror misconduct arises, the facts of that case are somewhat odd. The defendant, Elmer Remmer was charged with criminal tax evasion. During the trial, the jury’s foreperson, Irwin Smith, was approached at home by an insurance agent, ostensibly to discuss an insurance policy. But during the conversation, the agent mentioned that he knew the defendant and that the defendant had obtained a large sum of money “under the table.” The insurance agent helpfully suggested that the juror “make a deal” with the defendant to get a share of the money in exchange for an acquittal.
Smith, the juror, did exactly what he was supposed to do and reported the conversation promptly to the judge. The judge then shared this information with the prosecutor and the FBI, who launched an investigation into potential bribery charges and interviewed the juror. But none of them chose to tell the defendant or his counsel. No evidence implicating the defendant in potential bribery was ever found, and the investigation was ultimately dropped. Remmer was convicted by a jury including Smith, and only learned about the bribery suggestion until after the trial was over. Remmer moved for a new trial, but the district court refused, finding that he had not shown any prejudice from the interaction. The Court of Appeals for the Ninth Circuit affirmed, but the Supreme Court reversed, holding:
In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. [2]
The Supreme Court ordered the trial court to hold an evidentiary hearing to determine whether the conduct was harmless. The lower court botched the hearing, and after a tortured procedural journey involving multiple trips up and down, the Supreme Court ultimately ordered a new trial itself, writing:
We think this evidence covering the total picture reveals such a state of facts that neither Mr. Smith nor anyone else could say that he was not affected in his freedom of action as a juror. From Smith's testimony, it is quite evident that he was a disturbed and troubled man from the date of the [insurance agent] contact until after the trial. Proper concern for protecting and preserving the integrity of our jury system dictates against our speculating that the FBI agent's interview with Smith, whatever the Government may have understood its purpose to be, dispersed the cloud created by [the insurance agent’s] communication. As he sat on the jury for the remainder of the long trial, and as he cast his ballot, Smith was never aware of the Government's interpretation of the events to which he, however unwillingly, had become a party. He had been subjected to extraneous influences to which no juror should be subjected, for it is the law's objective to guard jealously the sanctity of the jury's right to operate as freely as possible from outside unauthorized intrusions purposefully made….
We hold that, on a consideration of all the evidence uninfluenced by the District Court's narrow construction of the incident complained of, petitioner is entitled to a new trial. [3]
In subsequent decisions, notably Tanner on the criminal side and Warger v. Shauvers, [4] on the civil side, the Supreme Court clarified what would need to be shown in a Remmer hearing to obtain a new trial and what evidence from jurors could or could not be considered under Rule 606. But it left open the more fundamental question of how you get a Remmer hearing in the first place. What does a defendant need to do to obligate a court to hold a hearing?
In the absence of any clear guidance in Remmer itself, the Circuits have gone in somewhat different directions. For example, in the Third Circuit “[i]f there is reason to believe that jurors have been exposed to prejudicial information, the trial judge is obliged to investigate the effect of that exposure on the outcome of the trial.” [5] However, the court may decline to hold a hearing if it concludes that the defendant would not have “suffered substantial prejudice as a result of the jury’s exposure.” [6] Similarly, the Seventh Circuit holds that“[i]n order for a hearing to be required, the extraneous communication to the juror must be of a character that creates a reasonable suspicion that further inquiry is necessary to determine whether the defendant was deprived of his right to an impartial jury.” [7]
In contrast, the Sixth Circuit has taken a somewhat different approach. For example, in Cunningham v. Shoop, [8] a defendant, Jeronique Cunningham, robbed a crack dealer and the dealer’s family members at gunpoint. After forcing everyone in the dealer’s home to turn over their valuables, the defendant shot everyone, badly wounding six adults and killing two children. Cunningham was convicted of murder (among other things) and sentenced to death.
After trial, Cunningham’s counsel learned that one of the jurors, a woman named Nichole Mikesell, had obtained negative information about the defendant from one of her coworkers during trial. In connection with a post-conviction habeas petition, his counsel also obtained affidavits from two jurors indicating that Mikesell had told the rest of the jury, contrary to her statements in voir dire, that she knew the families of the victims and would have to personally face them should the defendant be acquitted.
The case also took a tortured path through the courts, as a result of various exhaustion and procedural default issues. Ultimately, the Sixth Circuit concluded that any “colorable allegation” of private communication with a juror concerning the matter on trial entitled a defendant to a Remmer hearing:
In Remmer, the Supreme Court held that a prima facie showing of juror bias—such as an allegation of “any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury” in a criminal case—entitles a defendant to a hearing, awards to the defendant a presumption of prejudice, and places on the Government the burden of showing that the contact was harmless. The Court followed up in Smith v. Phillips: “This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Put another way, the Phillips Court reaffirmed Remmer’s core holding that a showing of juror bias demands a hearing.
* * *
To receive a Remmer hearing, Cunningham had to colorably allege that the jury encountered extraneous influence—which he did in his state postconviction petition.
The matter was appealed to the Supreme Court, which denied certiorari. [9] But just barely. Justices Thomas, Alito, and Gorsuch each dissented from the decision to deny cert, joining a lengthy dissent authored by Justice Thomas in which he strongly criticized the Sixth Circuit’s “colorable claim” standard as having no basis in Remmer.
Since this decision, multiple commentators have criticized the growing circuit split and suggested potential solutions.[10] But until the Supreme Court acts, it remains entirely unclear whether a defendant can obtain an evidentiary hearing merely from a “colorable allegation of extraneous influence,” or whether he or she must show “substantial prejudice” or other facts demonstrating the lack of an “impartial jury.” Some alleged misconduct (e.g. outright bribes) will doubtlessly satisfy any test, but given how difficult it is for a defendant to even learn about juror misconduct, any standard that makes it more difficult to even obtain a hearing has a major impact on the ability of aggrieved parties to obtain relief when something goes terribly wrong with a jury.
[1] 483 U.S. 107 (1987).
[2] Remmer v. United States, 347 U.S. 227, 229 (1954).
[3] Remmer v. United States, 350 U.S. 377, 381-82 (1956).
[4] 574 U.S. 40 (2014).
[5] United States v. Console, 13 F.3d 641, 669 (3d Cir.1993).
[6] United States v. Fumo, 655 F.3d 288, 304 (3d Cir. 2011).
[7] United States v. Gallardo, 497 F.3d 727, 736 (7th Cir. 2007).
[8] Cunningham v. Shoop, 23 F.4th 636, 648 (6th Cir. 2022).
[9] Shoop v. Cunningham, 143 S. Ct. 37 (2022).
[10] See e.g., Melanie Cecelia Regis, Testing the Validity of A Verdict, 96 Temp. L. Rev. 181 (2024); Cynara Hermes McQuillan, How to Impeach A Verdict: A Response to Melanie C. Regis, 97 Temp. L. Rev. Online 1 (2024).
