Rush, Justice
Every accused has a constitutionally protected right to an impartial jury. We have long recognized that even one juror’s unauthorized contacts and communications may poison the entire jury, but we rely upon trial courts to decide whether a mistrial is the cure. Unfortunately, we have given trial courts inconsistent guidance on both how to make this determination and whether the accused must prove prejudice. Today we clarify our precedent: Defendants are entitled to a rebuttable presumption of prejudice when they can show by a preponderance of the evidence that an unauthorized, extra-judicial contact or communication with jurors occurred, and that the contact or communication pertained to the matter before the jury.
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An impartial jury is the cornerstone of a fair trial, guaranteed by the Sixth Amendment and Article 1, Section 13 of our Indiana Constitution. See Turner v. State of Louisiana, 379 U.S. 466, 472 (1965); Caruthers v. State, 926 N.E.2d 1016, 1020 (Ind. 2010). To preserve impartiality and prevent taint, we prohibit unauthorized contacts and communications with jurors. Yet no trial is perfect, and we have long held that “[w]hile courts have a duty to ensure an impartial jury . . . jurors need not be absolutely insulated from all extraneous influences . . . .” Id. at 1021 (quoting Lindsey v. State, 260 Ind. 351, 356, 295 N.E.2d 819, 823 (1973)). We therefore entrust trial courts with the difficult responsibility of discerning when extraneous influences become irreparable taint warranting a new trial. See id.
Federal precedent for making that determination has narrowed over time. The United States Supreme Court once held that “[i]n 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 . . . .” Remmer, 347 U.S. at 229. That presumption was “not conclusive, but the burden rest[ed] 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.” Id. Remmer applied this rule to find presumptive prejudice when a defendant discovered that someone had offered to bribe one of his jurors in return for a guilty verdict. Id. at 228. But since Remmer was decided in 1954, the scope of the presumption has narrowed considerably. In Smith v. Phillips, the Court held that a defendant had the burden of proving prejudice, suggesting the presumption was either extremely narrow or nonexistent. 455 U.S. 209, 215 (1982). The Court later clarified “[t]here may be cases where an intrusion should be presumed prejudicial,” United States v. Olano, 507 U.S. 725, 739 (1993), but it has never returned to Remmer’s broad presumption. The federal circuits have recognized this evolution, and most have applied a narrower presumption of prejudice than what Justice Sherman Minton articulated in Remmer. [Footnote omitted.]
Indiana, likewise, has historically applied a presumption of prejudice narrower than Remmer’s original formulation. In Currin v. State, we said that “a rebuttable presumption of pre judice arises from juror misconduct involving out-of-court communications with unauthorized persons”—but that “such misconduct must be based on proof, by a preponderance of the evidence, that an extra-judicial contact or communication occurred, and that it pertained to a matter pending before the jury.” 497 N.E.2d 1045, 1046 (Ind. 1986). We articulated the presumption of prejudice in Currin without any reference to Remmer. Currin’s formulation was the synthesis of a long line of Indiana cases holding that defendants must make a preliminary showing that jury taint actually occurred before a judge would consider whether any taint had irreparably prejudiced the jury. . . . .
Alongside the presumption of prejudice analysis synthesized in Currin, Indiana courts have applied an irrebuttable presumption of prejudice aimed at identifying egregious “juror conduct with witnesses occurring contemporaneous to the trial proceeding.” May v. State, 716 N.E.2d 419, 422 (Ind. 1999). We have referred to such conduct as “prima facie prejudicial.” . . . .
We clarified in May that the phrase “prima facie prejudicial” used previously in Woods and Kelley referred to “extra-judicial juror conduct . . . fundamentally harmful to the appearance of the fair and impartial administration of justice . . . irrespective of whether the communication concerned a matter pending before the jury.” 716 N.E.2d at 422 (emphasis added). All defendants needed to establish in order to show “prima facie prejudice” was conduct that compromised the appearance of jury neutrality—such as open fraternizing between jurors and witnesses. Defendants needed to show nothing about the content of such egregious interactions, only that they took place. In essence, then, Woods, Kelley, and May carved out a very narrow set of egregious circumstances in which the prejudice under Currin is not merely presumed, but automatically found; and the State will never be able to show harmless error.
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While we have clearly established the presumption of prejudice in our case law, Indiana courts have not applied it consistently. As one panel of our Court of Appeals has observed, many Indiana cases “state the presumption of prejudice as black letter law and then proceed to ignore it.” Hall v. State, 796 N.E.2d 388, 395 (Ind. Ct. App. 2003), trans. denied. Often we have cited the presumption of prejudice we discussed in Currin but applied a different mistrial standard instead. For example, some cases recited a presumption of prejudice, yet held without explanation that defendants have to meet the “probable harm” standard reserved for juror misconduct cases not involving out-of-court communications with unauthorized persons—that is, that the misconduct is “gross” and “probably harmed the defendant.” . . . Other cases have cited the presumption but held that the defendant had to show a “substantial possibility” that the jury was improperly influenced before getting a new trial. . . . And some cases have cited to both the presumption of prejudice and the probable harm standard for jury misconduct but have based their ultimate holdings on the “grave peril” standard in the end. . . . .
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Defendants seeking a mistrial for suspected jury taint are entitled to the presumption of prejudice only after making two showings, by a preponderance of the evidence: (1) extra-judicial contact or communications between jurors and unauthorized persons occurred, and (2) the contact or communications pertained to the matter before the jury. Currin, 497 N.E.2d at 1046. The burden then shifts to the State to rebut this presumption of prejudice by showing that any contact or communications were harmless. . . . If the State does not rebut the presumption, the trial court must grant a new trial. On the other hand, if a defendant fails to make the initial two-part showing, the presumption does not apply. Instead, the trial court must apply the probable harm standard for juror misconduct, granting a new trial only if the misconduct is “gross and probably harmed” the defendant. . . . But in egregious cases where juror conduct fundamentally compromises the appearance of juror neutrality, trial courts should skip Currin’s two-part inquiry, find irrebuttable prejudice, and immediately declare a mistrial. . . . At all times, trial courts have discretion to decide whether a defendant has satisfied the initial two-part showing
necessary to obtain the presumption of prejudice or a finding of irrebuttable prejudice. . . . .
Trial courts should apply the presumption of prejudice analysis of Currin in the context of
the procedures we established in Lindsey, 260 Ind. at 358–59, 295 N.E.2d at 823–24. Joyner v.
State, 736 N.E.2d 232, 239 (Ind. 2000) (recognizing that the Lindsey procedures apply to cases of extra-judicial jury communications). [Footnote omitted.] Trial courts must immediately investigate suspected jury taint by thoroughly interviewing jurors collectively and individually, if necessary.
If any of the jurors have been exposed, he must be individually interrogated by the
court outside the presence of the other jurors, to determine the degree of exposure
and the likely effect thereof. After each juror is so interrogated, he should be
individually admonished. After all exposed jurors have been interrogated and
admonished, the jury should be assembled and collectively admonished, as in the
case of a finding of “no exposure.” If the imperiled party deems such action
insufficient to remove the peril, he should move for a mistrial.
Lindsey, 260 Ind. at 359, 295 N.E.2d at 824. Once defendants move for mistrial, the trial courts should assess whether or not there is enough evidence to meet the two-part showing under Currin. If so, then the presumption of prejudice applies and the burden shifts to the State to prove harmless error. If not, then trial courts should determine whether a juror’s misconduct was gross or probably harmed the defendant.
Dickson, C.J., and Rucker and David, JJ., concur.
Massa, J., concurs in result with separate opinion:
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The majority, faced with a plethora of somewhat muddled precedent from both federal and state courts, attempts to create order by carving out a new analytical framework and questioning one of our own prior decisions: Griffin v. State, 754 N.E.2d 899 (Ind. 2001). I prefer a gentler approach. After considering the three seminal federal decisions on this issue, I believe they are fully consistent with each other. What is more, I believe we can synthesize them and articulate a reasonable rule without doing violence to our precedent.
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. . .[W]hen a defendant moves for a mistrial based on garden-variety juror misconduct, like a juror applying for a job in the prosecutor’s office during the trial, . . . or alternate jurors being present in the jury room during deliberations, . . . the burden is on him to show that the misconduct prejudiced his trial and he is therefore entitled to a new one. But egregious misconduct or other circumstances that create a high probability of bias, such as when someone attempts to bribe a juror, . . . when pervasive media coverage exposes the entire jury pool to excluded evidence, . . . or when jurors are dependent upon State witnesses for the duration of the trial, . . . are prima facie prejudicial, and the burden rests upon the party not seeking the mistrial to rebut that presumption of prejudice.