Sixth Circuit Holds District Court Lacked Power to Order a Forensic Examination of a Juror’s Personal Electronics to Investigate Alleged Misconduct in a Criminal Case

In In re Sittenfeld, No. 22-3694 (6th Cir. Sept. 23, 2022), the Sixth Circuit denies a mandamus petition and thus leaves undisturbed the denial of an order sought by a criminal defendant to compel the forensic examination of a juror’s cellphone, computer, or “any electronic device that [the juror] used to make electronic communications.”

“In the post-verdict scenario, after a conviction, the Remmer [v. United States, 347 U.S. 227 (1954)] hearing is the prescribed method for investigating whether [any] outside influence affected the verdict in a way that deprived the defendant of a fair trial by impartial jurors, and thus necessitates a new trial.” If a defendant proves actual prejudice from an outside influence, the district court vacates the conviction and grants a new trial.

In the present case, where defendant Sittenfeld was convicted of bribery and extortion, it was discovered that “Juror X” had been posting on social media during trial. “One of Juror X’s posts expressed her opinion that another juror (‘Juror Y’), ‘shouldn’t be on the jury because [she] hates anyone that shares the same profession as our person on trial. Not cool!!!’

While none of the juror’s posts “contained facts about the case, discussed any of the proceedings, or even named the defendant,” other people commented on the posts by adding details about the trial including the defendant’s name. “The court immediately called the parties to chambers to inform them of Juror X’s Facebook postings and discuss the situation.” But before the district court could act, the jury reached a verdict.

At the post-verdict Remmer hearing, “Juror X reasserted her opinion that Juror Y should not have been on the jury because she hated politicians, which Juror X surmised from statements that Juror Y made throughout the trial.” She “shared her cellphone with Sittenfeld’s counsel so that he could read all the posts and comments, including the full content of those that were truncated on the printouts.” She also testified that she had not read about the case or discussed it with anyone else during trial. But when the district court sought to have the posts preserved, Juror X replied that she had already deleted thme.

The district court denied the defendant’s motion for forensic examination of Juror X’s personal electronics concerning the social-media posts. It found “no basis to believe that Juror X was prejudiced against Sittenfeld by any extraneous information, [and] conclude[d] that no basis exists to order a forensic examination of Juror X’s cell phone.”

The Sixth Circuit affirms. The panel “It bears emphasis that we are concerned with a court’s power over a juror. Not a criminal defendant, a civil litigant, or even a material witness. And certainly not an attorney admitted to the bar and subject to the court’s rules of admission. A juror has no stake in the outcome of the case and may in fact have preferred not to be called to jury service. And while a juror’s attendance is not strictly voluntary, see 28 U.S.C. §§ 1864(a) & 1866(g), once called, his or her cooperation, participation, and effort certainly are. We should be at the very least hesitant to impose on a juror the heavy hand demanded by Sittenfeld.”

“[T]here is no legitimate question that the district court has inherent power to conduct a Remmer hearing to investigate whether some extraneous influence affected the integrity of its verdict.” But the panel observes that “Federal Rule of Evidence 606(b) provides boundaries for questioning jurors.” Conducting a forensic search of a juror’s devices falls beyond those boundaries, holds the panel. “[T]here is no rule or statutory authority that provides” authority for “the searching of jurors as part of a Remmer hearing. Neither does our caselaw indicate the existence of any such power.”

Thus, the panel holds that no authority exists for seizing a juror’s electronics for a Remmer hearing. “The district court has inherent power to hold a Remmer hearing, which includes juror testimony. But that inherent power does not extend to an investigation into a juror’s personal affairs and does not empower the court to order a search of the juror’s belongings.” Nor would the district court’s subpoena power under Fed. R. Crim. P. 17(c)(1) support such an order.

Finally, the panel notes prudential considerations lodged in the juror’s constitutional rights. “[T]he juror ordered to testify at a Remmer hearing is sometimes—and certainly was in this case—treated like a suspect, questioned severely, without counsel, in custody . . . . We need not speculate on the consequences of Juror X’s accidentally revealing something criminal in her testimony or the contents of her phone, but that possibility certainly exists for some people . . . . If a court in conducting a Remmer hearing suspects that a juror’s misconduct constitutes a crime subject to possible criminal prosecution, that is a matter for a prosecutor to investigate, not a judge. A prosecutor can pursue a warrant from a neutral and detached magistrate and question the juror pursuant to Miranda warnings. The court has no power to conduct a criminal inquisition.”

Concurring, Judge Gibbons would have confined the order to denying mandamus without opining further on the district court’s power to collect a juror’s electronics. “Sittenfeld has not shown that relief is appropriate under these circumstances. Sittenfeld has already been provided with an opportunity to examine Juror X’s bias, and Juror X has been ordered to preserve any relevant communications. Likewise, although Juror X clearly discussed her jury service with others, her posts and comments do not obviously indicate external influence of the kind that offends the Sixth Amendment right to an impartial jury. In addition, Sittenfeld has now interviewed four jurors—fully one-third of the jury—none of whom described any discussion of external sources or information. Although Juror X’s use of her cell phone in the deliberation room means that a forensic examination could determine whether she accessed inappropriate information or communicated with outside individuals, use of the cell phone in and of itself does not permit an inference of external influence. Weighed against uniform testimony from multiple jurors that no external influence affected deliberations, uncertainty alone is not enough.”

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