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Jury – Bias / Disqualification — Exposure to Extrinsic Information

State v. Edron D. Broomfield, 223 Wis.2d 465, 589 N.W.2d 225 (1999), affirming unpublished decision
For Broomfield: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether Broomfield was denied fair trial because juror overheard, prior to trial, prejudicial extraneous information relating to Broomfield’s past misconduct.

Holding: Exposure to extrinsic information implicates the rule against verdict-impeachment, R. 906.06(2). The party must first establish by competent testimony three things: extraneous (as opposed to merely deliberative) information; improper exposure to the jury; potential prejudice. All steps are satisfied here. The information came from a non-evidentiary source (people talking about the defendant’s “other bad acts”), and was therefore extraneous. It was improperly brought to the jury’s attention, even though only one juror was exposed to it. And, it was potentially prejudicial, since it involved inadmissible character evidence. Having satisfied the competent-evidence test preliminary to impeaching a verdict, two more obstacles stand between Broomfield and the finish line. First, the circuit court must find “clear, satisfactory, and convincing” evidence that the juror heard the statements. The record establishes this showing (the trial court’s finding to the contrary deemed clearly erroneous). But after all that, Broomfield’s argument falters on the shoals of harmless error, the court concluding no reasonable possibility that this information would have had prejudicial effect on the average juror. The result is, perhaps, limited: the evidence of guilt, the court stresses, was overwhelming and the tainted information wasn’t brought up during deliberations. The court also stresses that the information was derived from an overheard conversation – which the court disparagingly compares to “reading information in the newspaper or hearing it on the news.” ¶¶19-32.

Although not raised by Broomfield, the following principle should be kept in mind in case it comes up:

Any unauthorized communication between a juror and a witness or interested party is presumptively prejudicial, but the government may overcome the presumption by making a strong contrary showing. …

The Mattox rule applies when an unauthorized communication with a juror crosses a low threshold to create the potential for prejudice. A communication is possibly prejudicial, not de minimis, if it raises a risk of influencing the verdict. Prejudice is presumed under these circumstances, and the defendant’s motion for a new trial must be granted unless the prosecution shows that there is no reasonable possibility that the communication will influence the verdict….

Caliendo v. Warden, 9th Cir. No. 01-56946, 4/5/04.

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