Opening Pandora’s Jury Box

By B. Samantha Helgason

More than sixty years ago, the U.S. Supreme Court decided Remmer v.
United States, thereby defining what procedural steps restore a defendant’s
Sixth Amendment right to a fair trial in the face of a contaminated or partial
jury. Remmer, a case replete with evidence of jury tampering and covert
investigations, fashioned the remedy for future courts to redress allegations
of jury taint. Upon making out a prima facie case, a defendant is entitled to
an evidentiary hearing, at which the evidence is presumed to prejudice the
defendant, and the government bears the burden of rebutting. In Remmer’s
wake, however, the Court issued two subsequent opinions that some circuits
have interpreted to obviate the presumption of prejudice and restrict
Remmer’s rule.

This Note observes the inconsistent effects of the current circuit split on
defendants’ rights at trial, and it contends that the disparity will increase as
technology dissolves access barriers between jurors and outside information.
This Note examines where Supreme Court jurisprudence, circuit procedure,
and habeas corpus doctrine have shaped the current circuit split. It then
proposes that circuits can mend the split and pave a unified path forward by
reframing their analyses to include three additional considerations. Further,
by separating allegations of jury taint into three subcategories, circuits can
renew Remmer’s pretechnology rule to properly address jury taint in a
digital age.