Procedure, sixth amendment


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.

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