In 1954, the Supreme Court held in Remmer v. United States that any unauthorized, private communication with a juror during a trial about any matter pending before the jury is presumptively prejudicial—and that the burden to prove that the contact was harmless to the defendant rests with the government. Remmer featured relatively straightforward facts: An unnamed person communicated with a juror about a profit that juror could make by bringing a verdict for the defendant. The juror reported the incident to the judge, who informed the prosecuting attorneys. The F.B.I. investigated the comment, but determined the statement was made in jest. The attorneys for the defendant were never notified by the judge or prosecutors, but instead found out about the comment and F.B.I. investigation from a newspaper article after the verdict. The Supreme Court held that “any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about matter pending before the jury is . . . deemed presumptively prejudicial” if not authorized by the rules or instructions of the court, and required the government to prove that the communication was not harmful to the defendant. The case was remanded to the district court to hold a hearing to determine whether the incident was harmful to the petitioner.
While Remmer was long the standard regarding extrajudicial contact with jurors, the Court began to refine and narrow that standard. In Smith v. Phillips, a juror applied for a job in the prosecutor’s office during the trial. The Court held that due process required the trial court to hold a hearing where “the defendant has the opportunity to prove actual bias.” Phillips signaled a shift of burden to the defendant, rather than the government in Remmer. In O’Connor’s concurrence, she stated her concern that a hearing may be inadequate for uncovering a juror’s biases.
Later, in United States v. Olano, alternate jurors were present during jury deliberations. The Court’s opinion, written by O’Connor and grounded in similar logic to her concurrence in Phillips, held there “may be cases where intrusion should be presumed prejudicial, but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the instruction affect the jury’s deliberations and thereby its verdict?” The Court held the error of allowing alternate jurors to be present during jury deliberations did not “affect substantial rights” of the defendant.
Does the Remmer rebuttable presumption, which requires the government to rebut the presumption that extrajudicial contact with a juror about the matter pending before the jury is prejudicial, remain intact?
Since the Court’s decisions in Phillips and Olano, the circuit courts have answered differently the question of whether Remmer should be followed in whole, in part, or not at all. The splits revolve around two points of contention.
- Should Phillips be read broadly to apply the shift in burden to the defendant in all cases?
- Should the language of Olano be interpreted to imply a continuation of the rebuttable presumption standard or require a new standard of specific analysis of the intrusion’s effect on the verdict?
The Second, Fourth, Seventh, Ninth, Tenth, and Eleventh Circuits still follow Remmer’s standard of rebuttable presumption. These circuits have consistently held—as summarized in United States v. Greer, a Second Circuit case—that it “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.”
The circuits have also attempted to narrow the applicability of the Court’s holding in Phillips by holding that Remmer still has broad applicability. The Fourth Circuit, in Stockton v. Virginia, held Phillips did not overturn the holding in Remmer and the presumption of prejudice is applicable in cases in which “the danger is not one of juror impairment or predisposition, but rather the effect of the extraneous communication upon the deliberative process of the jury.” The Seventh Circuit, in Hall v. Zenk, stated that the focus of Phillips is not about the shift in burden from the government to the defendant during a Remmer hearing, but rather about the defendant’s mere right to a hearing.
The Sixth and Eighth Circuits have focused on the shifting of the burden in Phillips from government to defendant. Both circuits have applied Phillips broadly, eliminating the presumption of prejudice and placing the burden on the defendant to demonstrate the communication affected their substantial rights.
The First, Third, Fifth, and D.C. Circuits have interpreted the language in Olano and O’Connor’s concurrence in Phillips to require specific analysis on the intrusion’s effect on the verdict. These circuits have held that the district court must evaluate the severity and likelihood of the communication resulting in prejudice before holding a Remmer hearing. The government is required to prove prejudice does not exist only when the court determines prejudice is likely. The Third Circuit cited O’Connor’s concurrence and held that “a finding of implied bias is reserved for those extreme situations and exceptional circumstances that leave ‘serious question whether the trial court subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice.’”
Going forward, the Court may choose to address the two questions about which side carries the burden and whether there must be an analysis of the severity and likelihood of prejudice before a Remmer hearing. There are two types of cases that appear to be the most likely to result in the Court addressing the questions. The first type of case would be one where, using Phillips as precedent, the defendant has the burden to prove prejudice and is not able to meet the burden, but the government is unable to prove its burden either. (While this seems perhaps paradoxical and a solely academic question, this kind of result is possible because the burden for each side is so high; a situation could develop, therefore, where the issue of prejudice is a close call, and neither side can meet its heavy burden.) This scenario could mean that a motion for new trial could be decided by which party has the burden.
The second kind of case would be one in which a Remmer hearing is denied because the courts do not deem the severity and likelihood of prejudice to be high enough. This type of case may be less likely than the former, as it does mirror Phillips in many ways.
Ultimately, the possibility of these undesirable outcomes, coupled with the stark differences between the Circuits (and the relatively even divide between them), heightens the need for the Supreme Court to step in and clear the fog.