State v. Soto

2022 UT 9IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner,
v.
ANTHONY SOTO,
Respondent.
No. 20180810
Heard May 6, 2019
Supplemental Briefing Concluded June 18, 2019
Filed February __, 2022
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Mark S. Kouris
No. 151902137
Attorneys:
Sean D. Reyes, Att‘y Gen., Lindsey Wheeler, Asst. Att‘y Gen.,
Salt Lake City, for petitioner
Andrea J. Garland, Lisa J. Remal, Richard Sorenson, Salt Lake City,
for respondent
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined.
JUSTICE PETERSEN filed a dissenting opinion, in which ASSOCIATE
CHIEF JUSTICE LEE joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Two court personnel—a uniformed highway patrolman
assigned to protect the Supreme Court and a court IT technician—
shared a nonpublic courthouse elevator with a jury during trial
and told them, in so many words, to find the defendant, Anthony
Soto, guilty, and, according to at least one juror, to ―hang him.‖ All
STATE v. SOTO
Opinion of the Court
the while, the trial court bailiff stood quietly in the elevator,
arguably condoning these statements through his silence.
¶2 We granted certiorari to determine if the court of appeals
correctly held that such conduct triggers a rebuttable presumption
of prejudice against Soto. Based on the Utah Constitution and
long-standing precedent, we conclude that the court of appeals
was correct.
¶3 Article I, section 12 of the Utah Constitution guarantees
every criminal defendant the right to ―trial by an impartial jury.‖
The Sixth Amendment to the United States Constitution
guarantees the same. So fundamental is this right to our system of
criminal justice that courts across the country hail it as
―sacrosanct,‖ Harper v. Barge Air Conditioning, Inc., 722 S.E.2d 84, 88
(Ga. Ct. App. 2011), and one of ―[t]he most fundamental principles
of American criminal law,‖ State v. Coy, 550 S.W.2d 940, 942 (Mo.
Ct. App. 1977).
¶4 For almost a hundred years, this court has recognized that
essential to the guarantee of an ―impartial jury‖ is keeping the jury
insulated from outside contacts that may influence their decision.
When ―the personal liberty‖ of a person is at stake, ―the law
requires of the juror such conduct during that time that his verdict
may be above suspicion as to its having been influenced by any
conduct on his part during the trial.‖ State v. Anderson, 237 P. 941,
944 (Utah 1925). So, when an unauthorized contact likely to
influence the jury occurs, the defendant is entitled to a rebuttable
presumption that the contact has prejudiced him or her. See State v.
Pike, 712 P.2d 277, 280 (Utah 1985).
¶5 The regretful contact in this case violated Soto‘s right to an
impartial jury and triggered a rebuttable presumption that Soto
was prejudiced by that constitutional assault. Our precedents
dictate that to rebut this presumption, the State must show the
contact was harmless beyond a reasonable doubt. We remand the
case to the district court to determine whether the State has met
this burden.
BACKGROUND
¶6 Anthony Soto was arrested and charged with sexual
assault. During a lunch break on the second day of his trial, the
bailiff escorted the jurors to a nonpublic, court-employee elevator.
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According to the jurors,1 a uniformed highway patrolman was
present in the elevator and said something to the jury along the
lines of: ―Let me tell you how this ends‖ or, potentially, ―[j]ust say
he‘s guilty.‖ The bailiff said nothing. The elevator descended two
floors, and a court IT technician joined the jury inside. The
technician said something to the effect of, ―you guys look like a
jury,‖ to which a juror replied with words akin to, ―[d]o we look
that obvious?‖ The technician responded with something in the
vein of ―[c]an you say guilty?‖ The bailiff again said nothing in
response to these ill-chosen comments. He did, however, report
the incident to the trial judge.
¶7 Upon learning of the patrolman‘s and technician‘s
comments, the trial court promptly intervened. The court
interviewed each juror separately with the parties present and
asked each juror questions such as: ―Did you hear any of those
comments,‖ ―what did you hear,‖ and ―will that comment have
any effect at all with how you see this case?‖ The replies from each
juror about what they heard varied and included the following:
―Just say he‘s guilty,‖ ―let me tell you how this ends,‖ ―[y]ou can
already tell he‘s guilty,‖ and, most disturbing of all, ―convict him
or hang him.‖ All jurors agreed on the overall sequence of events,
and all but one said that at least either the patrolman or the
technician had commented on Soto‘s guilt and the trial‘s outcome.
The remaining juror could not remember what either man had
said. No juror said they believed the comments would impact their
impartiality or ability to render a verdict.
¶8 Defense counsel moved for a mistrial because the jurors
―almost all sa[id] they heard the word guilty,‖ and ―the gist of that
comment was that they should find the defendant guilty or he
must look guilty.‖ Defense counsel further argued that the jurors‘
subjective avowals that their impartiality remained intact were not
reliable because ―we‘re all influenced by things and don‘t even
realize it sometimes.‖
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1 When interviewed by the trial court about the interactions in
the elevator, the jurors gave somewhat conflicting responses.
While there is no doubt that the patrolman and the technician
spoke with the jurors, and the general topic of the comments
related to Soto‘s guilt, it is unclear exactly what was said. See infra
¶¶ 73–75, 74 n.14. We have tried to present the factual background
as clearly as possible considering the record.
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¶9 The trial court denied defense counsel‘s motion for a
mistrial and gave a curative instruction to the jury. The judge
informed the jurors that the patrolman was tasked with guarding
the Utah Supreme Court Justices and that he had no connection to
Soto‘s trial and ―really no connection to the court system at all.‖
The judge elaborated: ―He‘s not a bailiff, he‘s nothing like that. He
drives his police car, parks downstairs where we park and he goes
up to guard [the Supreme Court]. So he would have absolutely no
knowledge of any part of this trial.‖ Additionally, the judge
explained that the technician‘s job was to fix broken equipment
and that ―we know what IT guys know about trials and that‘s
pretty much nothing.‖ The judge concluded by telling the jury, ―I
don‘t want you to think that those folks have any inside
information or any talk or gossip or anything about what‘s going
on. They know absolutely nothing about this case and every
comment they made was completely off the cuff, they were trying
to be funny. Quite frankly, they weren‘t.‖
¶10 The trial proceeded, and the jury found Soto guilty. Soto
appealed.
¶11 On appeal, Soto argued that he was denied his
constitutional right to a fair and impartial jury because of the
improper juror contact.2 The court of appeals agreed. It held that
the contacts between the jury, the patrolman, and the technician
triggered a rebuttable presumption of prejudice, which the State
had not rebutted. State v. Soto, 2018 UT App 147, ¶ 23, 427 P.3d
1286. The court of appeals reversed Soto‘s conviction and
remanded for a new trial. Id. ¶ 24. The State filed a writ of
certiorari with this court, which we granted.
¶12 We exercise jurisdiction under Utah Code section
78A-3-102(3)(a).
STANDARD OF REVIEW
¶13 On certiorari, ―we review the decision of the court of
appeals and not that of the [trial] court.‖ State v. Hansen, 2002 UT
125, ¶ 25, 63 P.3d 650 (citation omitted). And ―we review the
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2 Soto also argued that there was insufficient evidence to
support his conviction, but, because the court of appeals did not
rule on this issue, we do not address it here. See State v. Soto, 2018
UT App 147, ¶ 8 n.1, 427 P.3d 1286.
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decision of the court of appeals for correctness.‖ Id. (citation
omitted). As for the content of the court of appeals‘ decision,
―[i]nterpretation of the Utah Constitution‖ is a ―question[] of law
that we review for correctness.‖ Jensen ex rel. Jensen v. Cunningham,
2011 UT 17, ¶ 37, 250 P.3d 465.
ANALYSIS
¶14 The Utah Constitution guarantees a defendant the right to
―trial by an impartial jury.‖ UTAH CONST. art. I, § 12. Under our
case law, that right prohibits improper contacts between juries and
third parties during trial.3 See State v. Anderson, 237 P. 941, 942–44
(Utah 1925); State v. Pike, 712 P.2d 277, 279–80 (Utah 1985). The
United States Constitution provides the same protection. See U.S.
CONST. amend. VI.
¶15 A long line of Utah cases dating back to statehood
recognizes that improper contacts between juries and third parties
may trigger a rebuttable presumption of prejudice, depending on
who made the improper contact, what was said, and the
circumstances of the contact. When the third party is a person of
importance in the proceedings or authority within the criminal
justice system, we are more likely to presume prejudice. We are
also more likely to presume prejudice when the content of the
communication involves a subject of the trial. Finally, we consider
all relevant circumstances that may favor or disfavor a
presumption of prejudice.
¶16 Applying this balancing test and our precedents to this
case, we hold that the contacts here triggered a rebuttable
presumption of prejudice. Soto‘s jury had contact with a
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3 Our rules of procedure also place broad prohibitions on juror
contacts with third parties. See UTAH R. CIV. P. 47(l), (m); UTAH R.
CRIM. P. 17(l). Obviously, these rules can only add to and never
diminish or supplant our constitutional requirements of a criminal
defendant‘s right to trial ―by an impartial jury.‖ UTAH CONST. art.
I, § 12; U.S. CONST. amend. VI. Nor do these rules tell us of the
appropriate remedy for their violation. As we demonstrate herein,
the constitutional right and the remedy for its violation are two
sides of the same coin—when a constitutionally questionable juror
contact occurs, the defendant is entitled to a rebuttable
presumption of prejudice, subject to the long-standing standard
for addressing constitutional deprivations.
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uniformed highway patrolman assigned to protect the Supreme
Court, who was literally clothed in the authority of the state, and a
court IT technician. Those individuals made statements to the
jurors aimed at the heart of the most essential element of a criminal
trial—the defendant‘s innocence or guilt. And the bailiff,
understood by the jury as their protector from undue outside
influences, heard it all but remained silent, potentially validating
the comments in the minds of the jury.
¶17 Once the rebuttable presumption of prejudice is triggered,
it is up to the State to rebut it. Although we have said that the State
bears a heavy burden to rebut the presumption, we have not
always cleanly articulated the standard. Today, we hold that the
State can carry its burden only by proving harmlessness beyond a
reasonable doubt, the standard formulation for a constitutional
deprivation. We then discuss how the State might go about doing
so. We accordingly remand to the district court to determine
whether the State has proved beyond a reasonable doubt that the
improper contacts were harmless.
I. THE RIGHT TO AN IMPARTIAL JURY: ITS SCOPE AND THE
REMEDY FOR ITS VIOLATION
¶18 The constitutional right to trial ―by an impartial jury‖
requires maintaining the sanctity of the jury process throughout
the trial. In this part, we first explain the scope of this right and
how it prohibits undue outside influence on the jury at any point
between the jury‘s empanelment4 and the rendering of judgment.
We then explain that the remedy for unauthorized
communications likely to influence the jury‘s judgment—like those
that took place here—is a rebuttable presumption that the
defendant has been prejudiced.
A. The Jury Must Not Be Tainted by Undue Outside Influences
¶19 Article I, section 12 of the Utah Constitution and the Sixth
Amendment to the United States Constitution both guarantee a
criminal defendant the right to trial ―by an impartial jury.‖ Today,
we focus on outside contacts with the jury after its empanelment.
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4 A jury is said to have been ―empaneled‖ upon having been
sworn in ―to try an issue or case.‖ Empanel, BLACK‘S LAW
DICTIONARY (11th ed. 2019).
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¶20 At the threshold, we explain the relative roles of our state
and federal constitutions in our analysis. While some of our past
cases on improper jury contacts have included discussion of the
Sixth Amendment, see, e.g., State v. Pike, 712 P.2d 277, 279 (Utah
1985), most of our cases focus on the Utah Constitution. We see
that as a prudent practice for two reasons. First, our State
protected defendants from prejudicial jury contacts with others
long before the incorporation of the Sixth Amendment against the
states. See State v. Anderson, 237 P. 941, 942–44 (Utah 1925); State v.
Thorne, 117 P. 58, 67 (Utah 1911). Second, ―even when the text of
our constitution is identical to its federal counterpart, ‗we do not
presume that federal court interpretations of federal constitutional
provisions control the meaning of identical provisions in the Utah
Constitution.‘‖ S. Salt Lake City v. Maese, 2019 UT 58, ¶ 27, 450 P.3d
1092 (citation omitted). Indeed, this court has ―not hesitated to
interpret the provisions of the Utah Constitution to provide more
expansive protections than similar federal provisions.‖ State v.
Briggs, 2008 UT 83, ¶ 24, 199 P.3d 935.
¶21 Still, the Sixth Amendment right to an impartial jury was
incorporated against the states through the Fourteenth
Amendment in Parker v. Gladden, 385 U.S. 363, 364 (1966) (per
curiam). As such, the Sixth Amendment forms the ―floor‖ below
which the Utah Constitution‘s protections cannot fall. Briggs, 2008
UT 83, ¶ 26. And Sixth Amendment jurisprudence helps inform
our understanding of the original public meaning of the right to an
impartial jury. Thus, while we cite mostly to Utah jurisprudence
interpreting the Utah Constitution throughout this opinion, we
also consider the scope of the Sixth Amendment regarding
improper jury contacts.
¶22 When ―interpreting the Utah Constitution, prior case law
guides us to analyze its text, historical evidence of the state of the
law when it was drafted, and Utah‘s particular traditions at the
time of drafting.‖ Am. Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 12,
140 P.3d 1235. ―There is no magic formula for this analysis—
different sources will be more or less persuasive depending on the
constitutional question and the content of those sources.‖ Maese,
2019 UT 58, ¶ 19.
¶23 The Utah Constitution ―guarantees to every one accused of
a public offense a trial by an impartial jury.‖ Anderson, 237 P. at 942
(citing UTAH CONST. art. I, § 12). Our constitution is silent as to the
scope of this right, and the constitutional convention debates
include no information to further our inquiry, as the delegates
never discussed the contours of the right to an impartial jury while
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addressing article I, section 12. See 1 OFFICIAL REPORT OF THE
PROCEEDINGS AND DEBATES OF THE CONVENTION 306–12 (1898).
¶24 But our prior case law, from the early days of statehood,
establishes the importance of shielding jurors from outside
influences:
[L]ong experience has demonstrated the necessity of
preventing the jury from mingling or conversing with
the people, and of keeping them secluded from all
outside influences calculated to interfere with or affect
their impartiality or judgment. These safeguards were at
common law deemed essential to the right itself of trial
by jury. That right with its ancient safeguards has been
preserved in this country by Constitutions and statutes.
Thorne, 117 P. at 67. Granted, Thorne was a capital case involving a
jury contact that occurred during deliberations. Id. at 62, 66.
Nevertheless, our subsequent case law and the entirety of this
opinion demonstrate how the core principle articulated in
Thorne—the need to shield the jury from outside influences likely
to affect their judgment—applies more broadly to all criminal
cases where a jury must decide ―the personal liberty of individuals
charged with offenses.‖ Anderson, 237 P. at 944.
¶25 To protect this paramount right to an untainted jury, this
court also has long recognized that improper influences on a jury
need not be intentional or even perceived by the jury. Certain
outside communications are so apt to ―consciously or
unconsciously . . . influence the judgment of the juror‖ as to likely
violate the guarantee of an impartial jury. See id. at 943; State v.
Crank, 142 P.2d 178, 194 (Utah 1943); see also Pike, 712 P.2d at 280
(―[I]mproper contacts may influence a juror in ways he or she may
not even be able to recognize . . . .‖).
¶26 Our view of improper jury contacts under the Utah
Constitution aligns with federal jurisprudence interpreting the
Sixth Amendment to the United States Constitution. These
decisions—many of them contemporary to the ratification of our
constitution—also inform our understanding of the original public
meaning of the right to an impartial jury.
¶27 The United States Supreme Court sees the Sixth
Amendment right to an impartial jury as protecting against
improper contacts between juries and others. The Court has
explained that the Sixth Amendment guarantees that ―the
‗evidence developed‘ against a defendant shall come from the
witness stand in a public courtroom where there is full judicial
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protection of the defendant‘s right of confrontation, of cross-
examination, and of counsel.‖ Parker, 385 U.S. at 364 (citation
omitted). Accordingly, the Court has prohibited ―private talk‖
with the jury and ―outside influence‖ on it. See id. at 364–66
(citation omitted).
¶28 In Mattox v. United States, 146 U.S. 140 (1892), the Court
talked about the protection from outside influences in common-
law terms but did not reject a constitutional protection. Mattox also
explained that past opinions treated improper contacts between
jurors and third parties as ―an irregular invasion of the right of
trial by jury.‖5 Id. at 150. Later opinions picked up on this
constitutional reliance and made it explicit. In Parker v. Gladden, for
example, the Court held that a bailiff‘s statements to jury members
that the defendant was guilty implicated a ―federal question‖ and
that such comments to a jury ―are controlled by the command of
the Sixth Amendment.‖ 385 U.S. at 364. Even today, Mattox is
described by the United States Supreme Court and the federal
courts of appeals as part of the canon of decisions about the
constitutional right to an impartial jury. See, e.g., Dietz v. Bouldin,
579 U.S. 40, 49 (2016); United States v. Basham, 561 F.3d 302, 319 (4th
Cir. 2009).6
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5Mattox explains that People v. Knapp, 3 N.W. 927 (Mich. 1879),
―held‖ the above-mentioned proposition. 146 U.S. at 150. But the
phrase does not appear in that opinion. Instead, Mattox also cites
Gainey v. People, 97 Ill. 270, 281 (1881), in which the Illinois
Supreme Court used a similar phrase to explain the holding of
Knapp. 146 U.S. at 150.
6 We acknowledge that we recently noted that the Supreme
Court of the Territory of Utah did not ―read Mattox to issue a
constitutional requirement.‖ State v. Bess, 2019 UT 70, ¶ 47 n.11,
473 P.3d 157 (referring to People v. Ritchie, 42 P. 209, 212–13 (Utah
1895)). But our comment and Ritchie‘s conclusion pertained to
another part of Mattox. Additionally, since our decision in Bess, the
United States Supreme Court opined indirectly on the point,
noting, in the context of jury unanimity, that ―the Sixth
Amendment affords a right to ‗a trial by jury as understood and
applied at common law, . . . includ[ing] all the essential elements
as they were recognized in this country and England when the
Constitution was adopted.‘‖ Ramos v. Louisiana, 140 S. Ct. 1390,
1397 (2020) (alterations in original) (quoting Patton v. United States,
(continued . . .)
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¶29 The federal courts of appeals, and state courts interpreting
the Sixth Amendment, have followed cases like Mattox and Parker
and closely scrutinized certain jury contacts with outsiders. See,
e.g., State v. Christensen, 929 N.W.2d 646, 661 (Iowa 2019) (―The
constitutional right to an impartial jury may be impaired by jury
misconduct and jury bias.”); Oswald v. Bertrand, 374 F.3d 475, 477
(7th Cir. 2004) (explaining that a jury must not decide guilt based
on ―extraneous sources of decision‖); United States v. Rigsby, 45
F.3d 120, 123 (6th Cir. 1995) (stating that prejudice is presumed
whenever a juror has an unauthorized, outside communication
―that presents a likelihood of affecting the verdict‖); Tarango v.
McDaniel, 837 F.3d 936, 947 (9th Cir. 2016) (―Mattox and its
progeny further establish that undue contact with a juror by a
281 U.S. 276, 288 (1930)). Although that is not a conclusive
assessment of the scope of the right-to-an-impartial-jury clause, we
think it has value when analyzing the impact of Mattox on current
constitutional jurisprudence about the clause.
Contemporaneous cases that followed Mattox also viewed it as
relating to the constitutional right to impartial jury. See, e.g., People
v. Dinsmore, 36 P. 661, 662 (Cal. 1894) (A prosecution witness
became indisposed during her testimony, and the trial court
decided to postpone trial by more than two months and allowed
the jury to separate without supervision. The California Supreme
Court reversed, holding that ―[t]he law is most jealous of these
matters, in the interests of justice to all parties, and its care and
anxiety to have a fair and impartial jury in every case is fully
[exemplified] by the provisions of both constitution and statute.‖
The court reasoned that ―the chances largely preponderate that,
under the circumstances here depicted, one or more of them did
not return to the box at the expiration of the continuance in the
same frame of mind as to the case as when he left it‖); United States
v. Spencer, 47 P. 715, 716 (N.M. 1896) (The jury was allowed to
separate, drank alcohol during the trial and visited a saloon. The
Supreme Court of New Mexico held that ―[i]f jurors should be
permitted to separate, . . . converse and mingle with people
generally, then the sacredness and respect for trial by jury would
be destroyed, and the practice of excluding juries from outside and
external influences and temptations for tampering and bribery is
nullified, and no litigant would be protected in his constitutional
right of a fair and impartial trial by a jury‖).
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government officer almost categorically risks influencing the
verdict.‖).
¶30 The consistent thread that connects all these decisions is
the concern for jury purity, alongside the threat to that purity
caused when an outsider invades the jury‘s privacy. Indeed, ―[i]t is
of the utmost importance to the administration of justice that the
purity of the trial by jury should be preserved.‖ Hines v. State, 27
Tenn. (8 Hum.) 597, 601 (1848). Courts around the nation have not
obsessed over the form of the intrusion, but rather on the principle
guarding against it—―safeguard[ing] in every possible way the
purity of the stream of justice; to prevent it from in any manner
being polluted by influences other than that which are produced
by the legal evidence and the law governing the case.‖ Bilton v.
Territory, 99 P. 163, 165 (Okla. Crim. App. 1909). That is because
constitutions ―enshrine[] principles, not application of those
principles.‖ Maese, 2019 UT 58, ¶ 70 n.23.
¶31 In sum, Utah‘s Constitution guarantees a defendant the
right to an impartial jury, and that right includes protection from
improper contacts between the jury and others during trial. The
federal courts, and other state courts interpreting the Sixth
Amendment, hold that the U.S. Constitution provides the same
protection. We now turn to how we effectuate this protection—a
rebuttable presumption of prejudice.
B. The Presumption of Prejudice
¶32 Once an improper jury contact is shown, ―prejudice is
presumed,‖ Thorne, 117 P. at 66, and ―the burden is on the
prosecution to prove that the unauthorized contact did not
influence the juror.‖ Pike, 712 P.2d at 280.
¶33 The presumption of prejudice is rooted in the
constitutional requirement that verdicts need to ―be above
suspicion as to [whether they were] influenced by any conduct on
[any juror‘s] part during the trial.‖7 Anderson, 237 P. at 944.
Accordingly, we have ―long taken a strict approach in assuring
that the constitutional guarantee of a fair trial not be compromised
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7 As the Utah and federal cases we discuss throughout this
opinion make clear, jury ―conduct‖ is not limited to affirmative
and intentional actions taken by a juror. It also includes
inadvertent conduct and communications directed at a juror.
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by improper [jury] contacts.‖ Pike, 712 P.2d at 279; see also State v.
Ahrens, 479 P.2d 786, 787–88 (Utah 1971); Crank, 142 P.2d at 194.
¶34 In keeping to this strict approach, we have recognized that
certain jury contacts may be expected to ―consciously or
unconsciously . . . influence the judgment of the juror.‖ Anderson,
237 P. at 943; see supra ¶ 25. In such situations, ―[t]o say that the
accused cannot sustain his claim of prejudice until he also shows
that the juror talked about something harmful to the accused‘s
rights is to fritter away the constitutional and statutory provisions
requiring the jury to be kept secluded from all outside influences.‖
Thorne, 117 P. at 67. Therefore, we have said that ―prejudice is
presumed‖ in such instances, id. at 66, ―unless the prosecution
shows beyond reasonable doubt that the [defendant] has received
no injury by reason thereof.‖ State v. Morgan, 64 P. 356, 360 (Utah
1901). In Pike, we synthesized our prior case law and provided a
useful starting point for the improper-contacts analysis—juror
contacts with ―witnesses, attorneys or court personnel‖ that go
―beyond a mere incidental, unintended, and brief contact‖ will
typically trigger a rebuttable presumption of prejudice. 712 P.2d at
280.
¶35 Pike provided two main reasons for why a rebuttable
presumption is required. These reasons are deeply rooted in the
jurisprudence of this court and from across the nation, even well
before the ratification of the Utah Constitution.
¶36 First, as already alluded to, it is exceedingly difficult to
prove ―how or whether a juror has in fact been influenced by‖
interactions with third parties. Id. at 280. Positive or negative
impressions, humorous feelings, expectations, or any such
unintended and unseen psychological coercion may spring from
such interactions and exert influence upon the deliberations of a
juror, ―consciously or unconsciously.‖ See Anderson, 237 P. at 943.
Our court of appeals has similarly explained that ―it is difficult, if
not impossible, to prove how an improper contact may have
influenced a juror.‖ State v. Swain, 835 P.2d 1009, 1011 (Utah Ct.
App. 1992) (citing Pike, 712 P.2d at 280 for this proposition).
¶37 Second, we want to avoid the ―deleterious effect upon the
judicial process‖ created by even ―the appearance of impropriety,‖
Pike, 712 P.2d at 280, thereby keeping ―judicial administration . . .
above suspicion as regards weighing out justice,‖ Thorne, 117 P. at
67. For when a defendant‘s liberty is at stake, there can be no
doubt as to the validity and impartiality of a jury verdict which,
―like Caesar‘s wife, must be above suspicion,‖ Crank, 142 P.2d at 194.
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As our court of appeals observed shortly after Pike, we have
―reversed criminal convictions based solely on the appearance that
[the right of an accused to an impartial jury] may have been
jeopardized.‖ State v. Woolley, 810 P.2d 440, 442 (Utah Ct. App.
1991).
¶38 In sum, Utah jurisprudence forcefully holds that once a
court is apprised of an improper jury contact, a rebuttable
presumption of prejudice attaches.8 The question, then, is whether
the jury contact at issue in the present case triggered the
presumption. We now address that question and answer it in the
affirmative.
II. SOTO WAS ENTITLED TO A REBUTTABLE PRESUMPTION
OF PREJUDICE
¶39 This court has never addressed a factual scenario
substantially like the one at bar. We have not decided whether
suggestions of a defendant‘s guilt, made to the jury by out-of-court
personnel who nevertheless represent the authority of the state
and the state‘s criminal justice system, trigger the presumption of
prejudice. Still, our case law has consistently utilized an analytical
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8 The federal courts are less clear on if and when the
presumption attaches. See, e.g., Eva Kerr, Note, Prejudice, Procedure,
and a Proper Presumption: Restoring the Remmer Presumption of
Prejudice in Order to Protect Criminal Defendants’ Sixth Amendment
Rights, 93 IOWA L. REV. 1451, 1463–77 (2008) (surveying the federal
circuit split regarding the presumption and documenting six
different approaches); Anna H. Tison, Recent Development,
United States v. Lawson: Problems with Presumption in the Fourth
Circuit, 91 N.C. L. REV. 2244, 2251–56 (2013) (presenting three
dominant approaches). Regardless, Utah jurisprudence
interpreting article I, section 12 of our state constitution stands
solidly on its own two feet in applying the presumption to
improper jury contacts. And because no party argues that our case
law fails to satisfy the minimum requirements of jury impartiality
under the Sixth Amendment, we root our analysis today in the
Utah Constitution. Indeed, we ―have authority to construe [our]
own constitutional provisions however [we] wish‖ and we are not
compelled by ―federal interpretations‖ as long as we do not
―violate a federal requirement.‖ JEFFREY S. SUTTON, 51 IMPERFECT
SOLUTIONS 16 (2018).
13
STATE v. SOTO
Opinion of the Court
framework that considers who said what and the circumstances
surrounding the contact.9 When this balancing test indicates that a
juror contact ―would or might, consciously or unconsciously, tend
to influence the judgment of the juror,‖ the defendant is entitled to
a rebuttable presumption of prejudice. State v. Anderson, 237 P. 941,
943 (Utah 1925).
¶40 In State v. Pike, this court articulated a general guideline
that ―any unauthorized contact during a trial between witnesses,
attorneys or court personnel and jurors [that] goes beyond a mere
incidental, unintended, and brief contact‖ will trigger the
presumption of prejudice. 712 P.2d 277, 280 (Utah 1985). The
parties here dispute whether the term ―court personnel‖ applies
only to in-court personnel or also includes out-of-court personnel
unaffiliated with the case. But rather than mandate a categorical
rule as to what statements by what court personnel necessarily
trigger the presumption, we look to the rationale underlying Pike.
That is to say, we return to our analysis of who said what and the
circumstances. We first discuss the elements of this analysis and
how this court and the court of appeals have applied those
elements in past cases. We then apply those elements to this case
and hold that the contacts here triggered the presumption of
prejudice.
A. Who Made the Contact
¶41 The critical first inquiry is the identity of the person with
whom the jury made contact. The more important the speaker in
the proceedings, or the more authoritative the speaker within the
criminal justice system, the more likely we are to presume
prejudice. Despite the urgings of the parties, we decline to adopt
any categorical rule as to which ―court personnel‖ might trigger
the presumption. This is because not all ―court personnel‖ are
equal in the eyes of a jury, and the question of who made the
contact is only the first step of our inquiry.
___________________________________________________________
9 The dissent argues that we are ―develop[ing] a new balancing
test to determine whether a particular instance of unauthorized
jury contact triggers a presumption of prejudice.‖ See infra ¶ 130.
Not so. As we explain in depth in this opinion, the balancing test
comes not from our imagination, but from our case law, and
specifically from past cases analyzing who said what and the
circumstances of the contact.
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¶42 We are more likely to assume prejudice when a juror
contact is made by an individual whose credibility the jury may
need to assess. As Pike notes, such individuals include ―witnesses‖
and ―attorneys.‖ Id. And our case law is clear that outside contacts
―beyond a mere incidental, unintended, and brief contact‖
between jurors and witnesses or attorneys will trigger the
presumption. Id.; see also id. at 280–81 (applying the presumption of
prejudice to a brief conversation between an officer-witness and
jurors because the nature of the conversation ―no doubt had the
effect of breeding a sense of familiarity that could clearly affect the
jurors [sic] judgment as to credibility‖); State v. Erickson, 749 P.2d
620, 621 (Utah 1987) (holding that a four- or five-minute
conversation between a juror and a key state witness about
personal matters unrelated to the trial ―was more than a brief,
incidental contact where only remarks of civility were exchanged‖
and thus triggered the rebuttable presumption of prejudice);
Anderson, 237 P. at 944 (applying the presumption because a juror
rode daily to and from the court with a witness during the three-
week trial); State v. Swain, 835 P.2d 1009, 1011 (Utah Ct. App. 1992)
(applying the rebuttable presumption of prejudice when a juror
and a witness talked about their high school reunion because it
―was clearly beyond the mere exchange of civility‖).
¶43 But our case law is concerned not just with the credibility of
the speaker, but also their authority. We are more likely to assume
prejudice when outside jury contacts are made by authoritative
speakers—individuals who are neither witnesses nor advocates in
the trial, whose credibility is not at issue, but who nevertheless
carry greater influence over a juror than an everyday citizen.
¶44 Our cases involving jury contacts between judges and
bailiffs illustrate this reasoning. For example, in State v. Maestas,
we stated that ―it may be appropriate to presume prejudice‖ when
―the judge discusses substantive matters with jurors.‖ 2012 UT 46,
¶ 70, 299 P.3d 892. ―In such cases, the judge‘s communication may
have influenced the jury in unknown ways that could potentially
affect the outcome of the case.‖ Id. And in State v. Garcia, we said
that a judge must not communicate with a juror ―on any subject
connected with the trial.‖ 355 P.2d 57, 59 (Utah 1960). Ultimately,
we decided in both cases that the presumption did not apply
because the judge did not discuss substantive matters with the
juror. Maestas, 2012 UT 46, ¶¶ 69–70; Garcia, 355 P.2d at 59. Still,
these cases stand for the well-understood premise that even
though judges act as neutral arbiters whose credibility a juror need
15
STATE v. SOTO
Opinion of the Court
not assess, their words carry great weight with a jury because of
their authority within the courtroom.
¶45 Similarly, our court of appeals has given greater
consideration to outside contacts made by bailiffs. In Logan City v.
Carlsen, the court of appeals applied Pike‘s language—that contacts
by ―court personnel‖ are likely to trigger the presumption of
prejudice—to comments made by a bailiff to the jury regarding
various courts‘ jurisdiction and sentencing authority. 799 P.2d 224,
225–27 (Utah Ct. App. 1990). The court noted ―how a seemingly
innocent response by the bailiff to a juror‘s question opens a
Pandora's box of possibilities of improper juror influence and the
appearance of impropriety.‖ Id. at 226; see also State v. Ham, 2006
UT App 278, paras. 4–6 (applying Pike to a juror contact with a
bailiff on the first day of trial but finding the contact to be
―incidental and brief‖); State v. Hale, 2000 UT App 297, paras. 2–4
(applying the Pike test to a comment made by a bailiff not assigned
to the case but concluding the same).
¶46 The federal courts have likewise found the authority of the
speaker to be relevant to Sixth Amendment analyses. In Remmer v.
United States, the United States Supreme Court considered a
situation in which an F.B.I. agent investigated a juror during trial
in response to an alleged bribe. 347 U.S. 227, 228 (1954). Although
the details of what transpired between the juror and agent were
unknown, the court presumed prejudice to the defendant: ―The
sending of an F.B.I. agent in the midst of a trial to investigate a
juror as to his conduct is bound to impress the juror and is very apt
to do so unduly.‖ Id. at 229. The court continued: ―A juror must
feel free to exercise his functions without the F.B.I. or anyone else
looking over his shoulder.‖ Id.¶47 Later, in Parker v. Gladden, the Court considered comments
made by a bailiff to a jury suggesting that the jury should convict.
385 U.S. 363, 363–64 (1966) (per curiam). The prosecution argued
that ―no harm could have resulted‖ because ten out of twelve
jurors later testified to not hearing the comments. Id. at 365. The
Court rejected this argument, explaining that it ―overlooks the fact
that the official character of the bailiff—as an officer of the court as
well as the State—beyond question carries great weight with a jury
which he had been shepherding for eight days and nights.‖ Id.(emphases added). The Court also found the number of jurors
potentially influenced by the comments to be of no moment: ―In
any event, petitioner was entitled to be tried by 12, not 9 or even
10, impartial and unprejudiced jurors.‖ Id. at 366.
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¶48 Citing Remmer and Parker, the Ninth Circuit has concluded
that ―undue contact with a juror by a government officer almost
categorically risks influencing the verdict.‖ Tarango v. McDaniel,
837 F.3d 936, 947 (9th Cir. 2016); see also Godoy v. Spearman, 861 F.3d
956, 967 (9th Cir. 2017). In Godoy, a juror kept regular contact
during trial with a ―judge friend,‖ unconnected to the case, who
explained procedural details to the juror, which she in turn shared
with the rest of the jury. 861 F.3d at 960. The court held that
although the judge ―was not a state officer ‗entangled in this case,‘
his status as a judge is nonetheless relevant to the [presumption]
inquiry.‖ Id. at 969 (citation omitted). ―The weight a judge‘s
comments would carry with the jury greatly increases the risk that
his advice about the case swayed its decision.‖ Id. And the court
concluded that even procedural questions, ―such as why certain
evidence was excluded, or how the jury was to determine guilt,
could certainly influence the jury's decision.‖ Id. at 969–70.
¶49 These Utah and federal cases illustrate how
communications by out-of-court personnel who nevertheless
represent state authority are likely to influence a juror. On the
other hand, non-authoritative court personnel, such as law clerks,
administrative staff members, or cafeteria workers, are less likely
to influence a juror. Yet we stop short of saying that all such
individuals should be treated the same as average laypeople in the
presumption analysis. Say, for example, a juror conversed with the
court librarian about whether the trial judge tends to give harsh
sentences to criminal defendants. A court might rightly conclude
that the librarian‘s answer is more likely to influence the juror than
if the juror had asked a person on the street.
¶50 To summarize, Pike provides a convenient springboard for
the who analysis—statements by ―witnesses, attorneys or court
personnel‖ are more likely to influence a juror.10 712 P.2d at 280.
___________________________________________________________
10 Pike itself implies that it did not intend to declare a bright-
line rule. At one point, the opinion states: ―The rule in this
jurisdiction is that improper juror contact with witnesses or parties
raises a rebuttable presumption of prejudice.‖ Pike, 712 P.2d at 280
(emphasis added). But it also says: ―We have long taken a strict
approach in assuring that the constitutional guarantee of a fair trial
not be compromised by improper contacts between jurors and
witnesses, attorneys, or court personnel.‖ Id. at 279 (emphasis added).
We take this potentially conflicting rule language to suggest what
(continued . . .)
17
STATE v. SOTO
Opinion of the Court
Still, not all ―court personnel‖ are the same. Those who represent
state authority—in particular, the authority of the criminal justice
system—are more likely to ―consciously or unconsciously . . .
influence the judgment of the juror.‖ Anderson, 237 P. at 943.
Whereas run-of-the-mill court employees are less likely to do so.
The State and the dissent both resist this conclusion and propose
categorical rules limiting the scope of ―court personnel.‖ We find
their arguments unpersuasive.
¶51 The State argues that the patrolman and the IT technician
were ―court personnel‖ but not ―court participants—individuals
participating in the proceedings.‖ This distinction matters to the
State because it views this court‘s precedent as limited to
comments made to the jury by trial or in-court participants:
witnesses, attorneys, and courtroom staff. And it asks us to not
―extend‖ our case law to include court personnel not involved in
the case the jury must decide.
¶52 We reject the State‘s argument for three reasons. First, the
State essentially asks us to limit our precedents to their facts. But
we have explained that stare decisis ―requires us to extend a
precedent to the conclusion mandated by its rationale,‖ not its
facts. Pleasant Grove v. Terry, 2020 UT 69, ¶ 41, 478 P.3d 1026(citation omitted) (internal quotation marks omitted); see also Neese
v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 58, 416 P.3d 663. The
rationale of our improper-contacts cases draws no categorical
distinction between in-court and out-of-court personnel.
¶53 Second, the State points to our statement in State v. Allen
that the presumption ―only applies when the contact is between a
juror and other court participants, not jurors and third parties
unrelated to the proceedings.‖ 2005 UT 11, ¶ 51, 108 P.3d 730.
However, the court made that statement in response to the
defendant‘s argument that, given the public nature of the trial, a
juror‘s contact with her spouse somehow amounted to contact
with ―court personnel.‖ See id. at ¶¶ 51–53. Thus, that statement
was meant to highlight the chasm of difference between juror
contacts with truly disinterested parties—such as a spouse—and
juror contacts with individuals participating in a proceeding or
we expressly expound today: that ―court personnel‖ will often
carry greater weight in the improper contacts analysis than the
everyday citizen, but it still comes down to who said what and the
circumstances.
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representing the authority of the state courts system. Further, and
as we elucidate below, we cannot conceive or concede that an
individual who is not an active participant in the proceedings, but
who is still an authoritative figure within the criminal justice
system, would necessarily be ―unrelated to the proceedings.‖ Cf.
UTAH CODE JUD. CONDUCT R. 1.2 cmt. 3 (―Conduct that
compromises or appears to compromise the independence,
integrity, and impartiality of a judge undermines public
confidence in the judiciary.‖).
¶54 Third, the State‘s position would invite the appearance of
impropriety. To say that comments to a juror by a judge, bailiff, or
police officer not affiliated with the proceedings are tantamount to
those made by an everyday citizen would not keep the purity of
the jury ―above suspicion.‖ See Anderson, 237 P. at 944; see also
UTAH CODE JUD. CONDUCT R. 1.2 (―A judge should act at all times
in a manner that promotes—and shall not undermine—public
confidence in the independence, integrity, and impartiality of the
judiciary and shall avoid impropriety and the appearance of
impropriety.‖); supra ¶¶ 33, 37.
¶55 The court of appeals‘ example colorfully illustrates the
absurdity of the State‘s proposal: ―Consider a hypothetical
encounter where another trial court judge enters a nonpublic,
court-employee elevator with the jury and urges the jury to convict
the defendant because, in the judge‘s experience, criminal
defendants are ‗almost always‘ guilty and deserve to be convicted
‗99 times out of 100.‘‖ State v. Soto, 2018 UT App 147, ¶ 16 n.2, 427
P.3d 1286. Under the State‘s view, that behavior would not trigger
a rebuttable presumption of prejudice because the judge was not a
―participant[] in the case the jurors must decide.‖ Nor would it
matter to the State if the entire Utah Supreme Court, robes and all,
were in the elevator and said the same thing to a juror. We agree
with the court of appeals that ―such an encounter . . . would surely
violate the right to an impartial jury and trigger the rebuttable
presumption of prejudice‖ because of the perceived authority of
the judge (or justices) as agents of state power. See id.¶56 Similar to the State, the dissent argues that Pike used the
term ‖court personnel‖ as ―a synonym for court participants or
courtroom personnel.‖ Infra ¶ 134. The dissent acknowledges that a
rebuttable presumption of prejudice attaches when jurors have
―unauthorized contact‖ with ―witnesses, attorneys or court
personnel.‖ Pike, 712 P.2d at 280. But the dissent does not believe
that the facts of Soto‘s case implicate this rule because the highway
patrolman and IT technician were not ―court participants or
19
STATE v. SOTO
Opinion of the Court
courtroom personnel.‖ Infra ¶¶ 133–34. Like the State‘s argument,
this reading is narrower than ours, see supra ¶¶ 50, 50 n.10, and we
similarly reject it.
¶57 We believe that the dissent‘s underlying rationale for its
narrow interpretation of ―court personnel‖ is also inconsistent
with our case law. The dissent posits that such individuals are not
more likely to trigger the presumption of prejudice because they
have no stake in the outcome of the trial or because a juror never
needs to assess their credibility or determine their rights. Infra
¶¶ 113, 135–37. Yet Utah courts have repeatedly assessed juror
contacts with judges or bailiffs under a more heightened standard
than they use for juror contacts with ordinary citizens. Supra
¶¶ 44–45. The federal courts have likewise done so under the Sixth
Amendment, including juror contacts with other government
agents. Supra ¶¶ 46–48. Under the dissent‘s theory, these cases all
should have treated the contacts as no different from juror contacts
with everyday citizens because the court personnel involved had
no interest in the outcome of the trial or because the jurors never
needed to assess the credibility of, or decide the rights of, such
individuals.
¶58 Besides disagreeing with our reading of the case law in
this area, the dissent also relies on Utah Rule of Civil Procedure
47(l) in its analysis. See infra ¶¶ 113, 122. Indeed, it bases its
analytical framework for its three rules of jury contact on our rules
of procedure. Compare UTAH R. CIV. P. 47(l) (―There shall be no off-
the-record communication between jurors and lawyers, parties,
witnesses or persons acting on their behalf.‖), with Dissent I.A
(―Jurors and trial participants must not communicate outside of
the trial‖); compare UTAH R. CRIM. P. 17(l) (while the jury is
deliberating, ―they shall be kept together,‖ and ―the officer having
them under [his or her] charge shall not allow any communication
to be made to them‖), with Dissent I.C (―During deliberations, the
jury may not separate or communicate with anyone‖); compare
UTAH R. CIV. P. 47(l) (―Jurors shall not communicate with any
person regarding a subject of the trial.‖), with Dissent I.B (―Jurors
may not have off-the-record communications with any person
about a subject of the trial‖). While our rules provide useful
guidelines for juror behavior, they do not and cannot supplant our
case law interpreting the breadth of the constitutional right to trial
―by an impartial jury.‖ UTAH CONST. art. I, § 12; U.S. CONST.
amend. VI. Nor do the rules prescribe the remedy for their
violation.
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¶59 Fortunately, rule 47(l)‘s limitations on outside
communications are broader than our constitutional limits and
thus create no constitutional problems. Most notably, rule 47(l)
prohibits a juror from communicating with “any person regarding a
subject of the trial.‖ UTAH R. CIV. P. 47(l) (emphasis added). This
rule prescribes a noble standard of juror behavior, but it does not
tell us when a court must presume prejudice from such
communication. To answer that question, we must look to our case
law. For example, a juror‘s communication with her spouse about
a procedural matter of the trial did not trigger the presumption
because of the unimportance of who communicated with the juror.
See Allen, 2005 UT 11, ¶¶ 47, 53. Conversely, a bailiff‘s comments
to a juror regarding sentencing triggered the presumption, in part
because of the importance of who made the communication.
Carlsen, 799 P.2d at 226.
¶60 Similarly, rule 47(l)‘s prohibition on all ―off-the-record
communication between jurors and lawyers, parties, witnesses or
persons acting on their behalf‖ does not tell us when we should
presume prejudice for its violation. Our cases explain we will
presume prejudice when such a communication ―goes beyond a
mere incidental, unintended, and brief contact.‖ Pike, 712 P.2d at
280. We further explain this below when we address what was
said.
¶61 In short, the dissent‘s reliance on rule 47(l) is misplaced.11
When deciding whether a juror contact with an outsider triggers
the rebuttable presumption of prejudice, we do not apply rule
47(l). We instead analyze who said what and under what
circumstances. At the threshold inquiry—who communicated with
the juror—we consider both the extent that the individual‘s
credibility must be weighed by the jury and the individual‘s
authority within the criminal justice system at large. The more at
issue the speaker‘s credibility is, or the more authoritative the
speaker, the more likely we are to apply the presumption of
prejudice.
___________________________________________________________
11To the extent the rule has any play in this matter, its broad
prohibitions on juror contacts cut against the dissent‘s narrow
proposed application of the presumption.
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STATE v. SOTO
Opinion of the Court
B. What Was Said
¶62 The second step in the improper-contacts inquiry is what
was communicated to the juror. The more the communication is
directly relevant to the trial, the more likely it is to trigger the
presumption of prejudice. This is, perhaps, most true when a
speaker opines on the defendant‘s guilt. Conversely,
communications unrelated to the trial are less likely to trigger the
presumption.
¶63 Again, our case law helps to illustrate these parameters.
We begin with communications directly related to the
proceedings. In Carlsen, the court of appeals applied the
presumption when a bailiff answered a juror‘s questions that
―touched on the extremely sensitive issue of sentencing.‖ 799 P.2d
at 226. And in State v. Larocco, that court addressed a brief
conversation regarding the credibility of police officers, which
between a juror and ―a minor witness whose testimony was
uncontroverted.‖ 742 P.2d 89, 95–96 (Utah Ct. App. 1987), rev’d on
other grounds, 794 P.2d 460 (Utah 1990). The court considered ―the
content of the conversation‖ (the credibility of police officers) to be
the ―critical issue‖ and accordingly applied the presumption of
prejudice. Id. at 96.
¶64 In the federal realm, the United States Supreme Court
applied the presumption of prejudice when a bailiff told jurors:
―Oh that wicked fellow (petitioner), he is guilty,‖ and ―[i]f there is
anything wrong (in finding petitioner guilty) the Supreme Court
will correct it.‖ Parker, 385 U.S. at 363–65. And in Godoy, the Ninth
Circuit presumed prejudice when a juror communicated with an
external ―judge friend,‖ in part because the judge explained
procedural details of the case. 861 F.3d at 964. The court explained:
―Procedural guidance on questions such as why certain evidence
was excluded, or how the jury was to determine guilt, could
certainly influence the jury‘s decision.‖ Id. at 969–70. These cases
show how outside juror contacts discussing substantive, or even
procedural, matters of the case are more likely to trigger the
presumption of prejudice.
¶65 On the other end of the spectrum, brief and innocent
contacts unrelated to the case are unlikely to trigger the
presumption. See Maestas, 2012 UT 46, ¶ 70 (not applying the
presumption when the ―judge's communication with the jury did
not involve any substantive issues; instead, the interaction was
brief and dealt with the timing of the jury‘s dismissal for the day‖);
State v. Durand, 569 P.2d 1107, 1109 (Utah 1977) (holding that the
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rebuttable presumption of prejudice was not triggered when jurors
briefly had coffee at the sheriff‘s office in the presence of several
officer-witnesses, as it was a ―minor‖ showing of impropriety);
Garcia, 355 P.2d at 59 (not presuming prejudice when a juror
approached the judge with a question regarding the trial and the
judge ―acted properly and did not attempt to solve the juror's
problems, but merely told him he would ask counsel about it‖);
State v. Day, 815 P.2d 1345, 1349–50 (Utah Ct. App. 1991) (holding
that the presumption was not triggered when, by order of the
judge, an officer–witness and a bailiff drove a juror one or two
miles to reunite him with the other jurors and no conversation
took place); State v. Jonas, 793 P.2d 902, 908–10 (Utah Ct. App. 1990)
(holding that the presumption did not arise when a bailiff let
jurors know why another juror was excused because ―[h]is brief
contact concerning something tangential to the trial itself did not
give rise to any appearance of impropriety‖).
¶66 Putting who and what together, we see how these two
prongs of our balancing test interact. At one extreme,
communications with jurors by individuals having little or no
connection with the courts or criminal justice system not regarding
the case at hand will not trigger the presumption of prejudice. At
the other extreme, communications by important or authoritative
individuals associated with the courts or criminal justice system
regarding a sensitive matter of the trial such as the defendant‘s
guilt or a key witness‘s credibility will almost invariably trigger
the presumption. The remaining scenarios will fall somewhere in
between and require the trial court to engage in a careful, fact-
intensive balancing of who said what. However, the court will still
need to consider any special circumstances of the communication,
which we now discuss.
C. Special Circumstances
¶67 While the above analysis of who said what will generally
suffice, in some situations the circumstances of a juror contact may
alter this calculus. We need not exhaustively catalog all such
circumstances here, but we provide a few examples to make the
point.
¶68 One such special circumstance is jury deliberations. Utah
and federal courts have afforded deliberating juries an extra level
of protection from outside influences. For example, in State v.
Thorne, a juror left his lunch table during deliberations and went
with an officer of the court to another part of the building, where
he spoke on the phone. 117 P. 58, 66 (Utah 1911). Even though the
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Opinion of the Court
identity of the speaker and what was said were unknown, the
court presumed prejudice. Id. The court explained that ―[t]o say
that the accused cannot sustain his claim of prejudice until he also
shows that the juror talked about something harmful to the
accused's rights is to fritter away the constitutional and statutory
provisions requiring the jury to be kept secluded from all outside
influences.‖ Id. at 67. And in Mattox v. United States, the United
States Supreme Court held that ―the separation of the jury in such
a way as to expose them to tampering, may be reason for a new
trial,‖ subject to a rebuttable presumption of prejudice. 146 U.S.
140, 149 (1892).12
___________________________________________________________
12 Thorne, decided in 1911, discussed the ―constitutional . . .
provision[] requiring the jury to be kept secluded from all outside
influences‖ during deliberations. 117 P. at 67. However, neither
our constitution nor the federal constitution expressly mentions
jury deliberations. See UTAH CONST. art. I, § 12; U.S. CONST. amend.
VI. Still, Thorne referred to the ―safeguards . . . at common law
deemed essential to the right itself of trial by jury‖ which had
―been preserved in this country by Constitutions and statutes.‖ 117
P. at 67. Presumably, the opinion borrowed from the United States
Supreme Court‘s construction of the Sixth Amendment in cases
like Mattox and from other state courts‘ constructions of their own
constitutional provisions protecting jury impartiality during
deliberations. See, e.g., Mattox, 146 U.S. at 150 (discussing cases
involving invasions of jury deliberations from Michigan, Kansas,
and Illinois).
The basic premise of cases like Thorne and Mattox—that we
apply a heightened level of protection from outside influences
during jury deliberations—is also reflected in our rules of
procedure. See UTAH R. CRIM. P. 17(l) (while the jury is
deliberating, ―the officer having them under [his or her] charge
shall not allow any communication to be made to them . . . .‖
(emphasis added)).
Perhaps the reason for this heightened protection during
deliberations is the difficulty in discovering and curing defects in
jury impartiality at this stage in the trial, immediately before the
verdict is announced. But when an unauthorized juror contact
occurring before deliberations becomes known to the court and
can be addressed prior to the verdict‘s reading, we are not
convinced that the basic analysis applied by Pike and its
(continued . . .)
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¶69 Thorne and Mattox highlight a second circumstance that
warrants greater protection: capital cases.13 See 117 P. at 67; 146
U.S. at 149–50. Indeed, our constitution states: ―In capital cases the
right of trial by jury shall remain inviolate.‖ UTAH CONST. art. I,
§ 10. While this is not an additional substantive protection of the
right to ―trial by an impartial jury‖ guaranteed by article I, section
12, this court has at times treated article I, section 10 as reinforcing
that right. See, e.g., State v. Young, 853 P.2d 327, 394 (Utah 1993).
Perhaps nowhere is it more important that there be heightened
jury protections and the appearance of propriety throughout the
proceedings than in capital cases, when a defendant‘s life is
literally on the line. See Gardner v. Florida, 430 U.S. 349, 358 (1977)
(―It is of vital importance to the defendant and to the community
that any decision to impose the death sentence be, and appear to
be, based on reason rather than caprice or emotion.‖); State v.
Brown, 607 P.2d 261, 271 (Utah 1980) (explaining that the State
must use ―scrupulous care‖ when prosecuting capital cases).
¶70 To be clear, these two examples do not define the universe
of special circumstances that may affect our analysis. But they
highlight the fact-intensive nature of the inquiry.
***
¶71 We have now described the framework for deciding when
a court must apply a rebuttable presumption of prejudice due to
an unauthorized contact with the jury. The court should consider
who made the contact, what was said, and the circumstances of the
contact to determine if the contact was likely to ―consciously or
unconsciously . . . influence the judgment of the juror.‖ Anderson,
237 P. at 943. This is necessarily a case-specific and fact-intensive
inquiry, and the end goal should always be to ensure that the
defendant‘s right to trial by an impartial jury has been maintained
―above suspicion.‖ See id. at 944; supra ¶¶ 33, 37.
predecessors—balancing who said what and any other special
circumstances—should be any different. After all, our state and
federal constitutions guarantee the right to an ―impartial jury,‖ not
―impartial jury deliberations.‖
13 We save for another day the question of to what extent some
of the language in Thorne and Mattox relied on the cases being both
capital cases and jury-deliberation cases.
25
STATE v. SOTO
Opinion of the Court
II. SOTO WAS ENTITLED TO A REBUTTABLE PRESUMPTION
OF PREJUDICE
¶72 Having explicated the test we use for unauthorized jury
contacts, we now apply it to Soto‘s claim. We analyze who made
the contact, what was said, and the circumstances. We find all three
of these elements weigh in favor of applying a rebuttable
presumption of prejudice.
¶73 At the threshold, we acknowledge a peculiarity of this case
regarding who said what. Here, two individuals communicated
with the jury. The jurors generally agreed to the following
baseline. A uniformed highway patrolman assigned to guarding
the Supreme Court was already on the elevator when the jury
entered it. He said something to the effect of, ―oh, looks like a jury,
do you want me to tell you how this ends?‖ A few seconds later, a
court IT technician entered the elevator and said something akin
to, ―you guys look like a jury . . . can you say guilty?‖
¶74 Still, several of the jurors, when later interviewed by the
court, expressed confusion about who said exactly what. Juror one
testified that the IT technician ―said something jokingly like
convict him or hang him.‖ Juror three thought that the IT
technician said, ―[y]ou can already tell he‘s guilty.‖ And juror five
told the court: ―I heard the patrolman, the Highway Patrolman
say, [j]ust say he‘s guilty.‖14
¶75 In sum, the patrolman most likely said, ―do you want me
to tell you how this ends?‖ But he also potentially said, ―[j]ust say
he‘s guilty.‖ The IT technician probably said, ―can you say guilty?‖
But he also potentially said, ―you can already tell he‘s guilty,‖ or
even worse, ―convict him or hang him.‖ Having clarified who said
what as much as possible, we now apply our test.
___________________________________________________________
14 For purposes of a prejudice analysis, the trial court need not
make a factual determination of what exactly was said. And we
certainly are not in a position to do so on appeal. Ultimately, the
inquiry hinges not on the intent or precise words of the speaker
but on the effect on the juror—whether the communication was
likely to ―consciously or unconsciously . . . influence the judgment
of the juror.‖ State v. Anderson, 237 P. 941, 943 (Utah 1925). So, in
this situation, we focus primarily on what was heard versus what
was said.
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A. Who—The Highway Patrolman Was a Person of Authority; the IT
Technician Was Less So
¶76 First, we consider who made the contact. As explained
above, courts have regularly given greater weight in the
unauthorized-contacts analysis to out-of-court personnel who
nevertheless represent state authority. Supra ¶¶ 44–48. The
patrolman fits squarely into this category. Nothing in the record
details his appearance. However, from the fact that the jurors
immediately recognized him as a highway patrolman, we logically
assume that he was in full uniform, including carrying a firearm.
He was truly clad in the authority of the State. The effect of that
appearance cannot be taken lightly. See Aylward v. State, 113 So. 22,
24 (Ala. 1927) (―The sheriff was in authority; it is safe to assume
that in the mind of the juror he represented the state, the law
. . . .‖). We agree with the court of appeals that:
[H]ighway patrol officers are regularly involved in
criminal trials as witnesses and are seen as authoritative
figures—perhaps all the more so in the case of one
assigned to protect the justices of the State‘s highest
court. Any comments made by a highway patrol officer
about a defendant‘s guilt could influence a juror,
consciously or not.
State v. Soto, 2018 UT App 147, ¶ 22, 427 P.3d 1286.
¶77 The IT technician was a less authoritative figure than the
patrolman. Unlike the patrolman, none of the jurors seemed to
identify the IT technician as any certain breed of state employee.
Still, the IT technician was riding the court‘s employee elevator
(not open to the public) and immediately recognized the jury as
such. A juror could reasonably and readily conclude that the IT
technician was a court employee and, therefore, probably knew
more about criminal trials than the average layperson. And more
importantly, as we explain further below, the jury could have
interpreted the patrolman‘s and bailiff‘s reactions to the IT
technician‘s comments as implicit ratifications of those comments,
giving greater weight and authority to the IT technician‘s words.
B. What—The Communications Suggested Soto’s Guilt
¶78 Our cases stand for the unsurprising thesis that the more
directly relevant the content of the communication is to the trial,
the more likely we are to presume prejudice. Supra ¶¶ 62–65. And
this is especially true when the communication suggests the
defendant‘s guilt. See supra ¶¶ 62–64.
27
STATE v. SOTO
Opinion of the Court
¶79 Here, what was said was quite damning. The patrolman
plausibly said, ―do you want me to tell you how this ends?‖ This
alone, in isolation, could be interpreted as a suggestion of guilt
and, therefore, prejudicial to Soto. Further, we again agree with the
court of appeals that when the patrolman did not ―correct[] the IT
technician when [the IT technician] suggested that Soto was guilty,
the highway patrol officer implied either that he knew something
about Soto‘s case or that criminal defendants are invariably
guilty.‖ Soto, 2018 UT App 147, ¶ 22. In addition, according to at
least one juror, the patrolman said, ―just say he‘s guilty.‖ At the
risk of stating the obvious, ―just say he‘s guilty‖ is a clear
suggestion of Soto‘s guilt.
¶80 The IT technician‘s statements were even worse. The jurors
largely agreed that he said words to the effect of, ―can you say
guilty?‖ But he also potentially said, ―you can already tell he‘s
guilty‖ or ―convict him or hang him.‖ Again, these are all
suggestions of guilt, and it is hard to imagine a more prejudicial
statement than ―hang him.‖ This suggests not only guilt, but also
contempt for the defendant—an emotional reaction to the
defendant that goes beyond a merely factual suggestion of guilt.
C. Circumstances—The Bailiff’s Silence Could Be Considered an Implicit
Endorsement of the Communications
¶81 Rounding out our analysis, we consider any further
circumstances that may mitigate or aggravate the contact. Supra
¶¶ 67–70. Here, we find relevant the presence of the bailiff and his
failure to intervene or admonish the other two communicators.
¶82 Courts have traditionally viewed bailiffs as important and
authoritative figures whose words carry significant weight with a
jury, even outside of the jury-deliberations context. See supra
¶¶ 44–45, 47; Parker v. Gladden, 385 U.S. 363, 363–64 (1966) (per
curiam); Logan City v. Carlsen, 799 P.2d 224, 226 (Utah Ct. App.
1990); cf. State v. Hale, 2000 UT App 297, paras. 3–4; State v. Ham,
2006 UT App 278, paras. 4–6. This case further demonstrates how,
in some circumstances, even a bailiff‘s silence can potentially
influence the jury. After all, a juror likely understands that part of
a bailiff‘s duties, as shepherd of the jury, is to insulate the jury
from external, potentially prejudicial contacts. Indeed, the court
here told the jury upon swearing them in that ―if anybody is
involved at all in the trial with the exception of myself and my
bailiffs, if they come to talk to you, please let my bailiff know
immediately and we‘ll take care of that.‖
28
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¶83 Here, the patrolman and IT technician said things like ―do
you want me to tell you how this ends‖ and ―can you say guilty,‖
or worse. A juror could potentially think that the bailiff‘s silence
meant he found nothing inappropriate about these statements
because, in essence, they were accurate. Thus, a juror could
consider the bailiff‘s silence as a tacit endorsement of those
statements—giving further weight to both communications.15
D. The Comments Triggered the Rebuttable Presumption of Prejudice
¶84 Putting it all together, we conclude that Soto was entitled
to a rebuttable presumption of prejudice. Regarding the
patrolman, an individual literally clothed in state authority
suggested to the jury that the defendant was guilty. Meanwhile,
the bailiff‘s silence could have implicitly validated his statements.
In other words, an authoritative speaker (who) made substantive
comments about a key aspect of the case (what) that could have
been perceived as being endorsed by another authoritative
individual (circumstances). This alone is sufficient to trigger the
presumption.
¶85 When considered with the patrolman‘s statements, the IT
technician‘s statements support our holding that the presumption
is triggered. Because we already hold that the patrolman‘s
statements alone were sufficient to trigger the presumption of
prejudice, we need not decide if the IT technician‘s statements
alone would also do so. We simply conclude that the IT
___________________________________________________________
15 The dissent disagrees with our statement that the bailiff‘s
silence potentially (or arguably) conveyed approval of the
comments to the jurors, and argues that there is ―no record
support for‖ such speculation and that ―the trial court made no
factual findings‖ on the matter. Infra ¶ 148 n.25. Nowhere in this
opinion have we made any factual finding that the silence
conveyed approval to the jury, or made assumptions about how
the specific jurors in this case were affected by the bailiff‘s silence.
Instead, we have noted that this is an additional circumstance that
could potentially influence the jury, or possibly lead them to think
differently about the contacts. This is consistent with the analysis
we have laid out earlier in this opinion, which requires
consideration of additional circumstances in the contact that might
weigh either toward or against a presumption of prejudice.
29
STATE v. SOTO
Opinion of the Court
technician‘s statements further reinforce our application of the
presumption in this case.
III. REBUTTING THE PRESUMPTION OF PREJUDICE
¶86 While this court and the court of appeals have been more
or less consistent in applying the presumption of prejudice, we
have not consistently articulated a standard for rebutting the
presumption.16 Nor have we suggested how the State might go
about doing so. As a result, district courts have taken an ad hoc
approach to applying and rebutting the presumption. Typically,
the court interviews the jurors, and potentially the individuals
who contacted them, and asks things like: ―What did you hear?‖
and ―will this affect your decision?‖ (to which the jurors almost
invariably respond, ―no‖). Cf., e.g., State v. Erickson, 749 P.2d 620,
620–21 (Utah 1987); State v. Pike, 712 P.2d 277, 279 (Utah 1985);
Logan City v. Carlsen, 799 P.2d 224, 225 (Utah Ct. App. 1990); State
v. Cardall, 982 P.2d 79, 82 (Utah 1999). Or the court may request
affidavits to the same effect. See, e.g., State v. Crank, 142 P.2d 178,
194 (Utah 1943); State v. Tenney, 913 P.2d 750, 757 (Utah Ct. App.
1996). Here, the court interviewed the jurors and issued a curative
instruction. Accordingly, the State argues, it already bore its
burden below to rebut the presumption if the presumption applied
in the first instance (which it did).
¶87 Our ―strict approach in assuring that the constitutional
guarantee of a fair trial not be compromised by improper [jury]
contacts,‖ Pike, 712 P.2d at 279, becomes less strict when the
standard for enforcing that guarantee is lax. We now address this
concern and first hold that the State can rebut the presumption by
proving that the contact was harmless beyond a reasonable doubt.
We applied this standard in the same context well over one
hundred years ago, and it is consistent with how we evaluate other
constitutional challenges to a defendant‘s conviction. Second, we
suggest how, in the case at bar, the State may prove harmlessness
beyond a reasonable doubt—by calling the persons who engaged
with the jurors to testify to allow the defendant his confrontation
right and/or by showing that the weight of its evidence eliminates
___________________________________________________________
16 Except to say that once the presumption is triggered, the
State bears the burden of rebutting it, see, e.g., State v. Pike, 712 P.2d
277, 279–80 (Utah 1985), a proposition that the State concedes.
30
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any meaningful prejudice. Finally, we remand to the district court
for further proceedings in light of these clarifications.
A. Rebutting the Presumption Requires Proof Beyond a Reasonable
Doubt
¶88 The State may rebut the presumption of prejudice only by
showing that the improper jury contact was harmless beyond a
reasonable doubt.17
¶89 In 1901, this court, relying on authorities from our sister
states, pronounced that jury misconduct raises a presumption of
prejudice that ―vitiates the verdict, unless the prosecution shows
beyond reasonable doubt that the [defendant] has received no injury
by reason thereof.‖ State v. Morgan, 64 P. 356, 360 (Utah 1901)
(emphasis added). Lamentably, subsequent opinions have not so
clearly stated this standard of proof. They do make clear, however,
that the burden of proving harmlessness is a heavy one. See, e.g.,
State v. Maestas, 2012 UT 46, ¶ 69 n.56, 299 P.3d 892 (―[T]he burden
is on the prosecution to prove that the unauthorized contact did
not influence the juror.‖ (quoting Pike, 712 P.2d at 280)); State v.
Anderson, 237 P. 941, 943 (Utah 1925) (requiring a new trial ―unless
it is made to appear affirmatively that the judgment of the juror
was in no way affected by such relationship‖); State v. Thorne, 117
P. 58, 66 (Utah 1911) (holding that once prejudice is presumed,
―the burden [is] cast on the state to show what the communication
was, and that it was harmless and could not have influenced or
affected the deliberations of the juror or his verdict‖). In essence,
our holding today—that the State must show that the prejudicial
contact was harmless beyond a reasonable doubt—simply makes
explicit what was already implicit in our post-Morgan
jurisprudence.
¶90 The harmless-beyond-a-reasonable-doubt standard is
consonant with the approach we take when evaluating other
constitutional violations pertaining to a defendant‘s conviction. As
we have explained, ―[f]or us to hold a constitutional error
harmless, it must be harmless beyond a reasonable doubt. In other
words, the side which benefited by the error (the prosecution)
___________________________________________________________
17 At oral argument, both parties suggested that supplemental
briefing on the standard of proof might be helpful. Accordingly,
we ordered them to provide such supplemental briefing. We
appreciate their input.
31
STATE v. SOTO
Opinion of the Court
must show beyond a reasonable doubt that the error did not
contribute to the verdict (or sentence) obtained.‖ State v. Young,
853 P.2d 327, 359 (Utah 1993) (footnote omitted); see also Maestas,
2012 UT 46, ¶ 56 (―[A]n otherwise valid conviction should not be
set aside if the reviewing court may confidently say, on the whole
record, that the constitutional error was harmless beyond a
reasonable doubt.‖ (citation omitted) (alteration in original)); State
v. Ross, 2007 UT 89, ¶ 54, 174 P.3d 628 (―If prosecutorial
misconduct is established, the State must show that the error was
harmless beyond a reasonable doubt.‖); State v. Kell, 2002 UT 106,
¶ 15, 61 P.3d 1019 (―In most cases, if the reviewing court finds that
a constitutional error was harmless beyond a reasonable doubt, it
need not reverse.‖).
¶91 Again, we look to federal jurisprudence interpreting the
Sixth Amendment and find it generally consistent with our state
standard. As early as 1892, the United States Supreme Court
stressed that improper jury contacts ―invalidate the verdict, at least
unless their harmlessness is made to appear.‖ Mattox v. United
States, 146 U.S. 140, 150 (1892). In 1954, the Court added that ―the
burden rests 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.‖ Remmer v. United States, 347
U.S. 227, 229 (1954).18 Indeed, the general proposition that a
constitutional violation must be harmless beyond a reasonable
doubt to survive a challenge is deeply rooted in Supreme Court
precedent. ―[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.‖ Chapman v. California, 386
U.S. 18, 24 (1967); see also Deck v. Missouri, 544 U.S. 622, 635 (2005).
___________________________________________________________
18 As mentioned above, there is a circuit split in the federal
courts regarding the presumption of prejudice. See supra ¶ 38 n.8.
Among the courts of appeal that follow Remmer and apply the
presumption, there is a loose consensus that the prosecution bears
a heavy burden in rebutting the presumption of prejudice, even if
not the precise manner of rebuttal. See, e.g., United States v. Ronda,
455 F.3d 1273, 1299 (11th Cir. 2006); United States v. Rutherford, 371
F.3d 634, 641 (9th Cir. 2004); United States v. Cheek, 94 F.3d 136, 142
(4th Cir. 1996).
32
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¶92 In sum, we hold nothing new by clarifying that the State
must prove harmlessness beyond a reasonable doubt to rebut the
presumption of prejudice triggered by improper jury contacts.
B. Proving Harmlessness Beyond a Reasonable Doubt
¶93 Having determined that the State must prove an
unauthorized jury contact was harmless beyond a reasonable
doubt, we now address how the State might do that.
¶94 It is not possible or prudent for us to prescribe a clear path
to rebutting the presumption of prejudice in every possible case.
Whether a court should apply the presumption is a fact-specific
inquiry. How the State might rebut it is equally fact-specific, and
the State must have flexibility in proving harmlessness.
¶95 But before we offer some suggestions of what might be
sufficient to rebut the presumption, we use this case to highlight
what is not sufficient. The judge‘s brief questioning of the jurors
and their optimistic averments as to their own lack of bias alone
are insufficient to rebut the presumption. We have said as much
before: ―[E]ven if the jurors had denied that they were influenced
by the encounter in the post-trial hearing, that is not enough to
rebut the presumption of prejudice.‖ See Pike, 712 P.2d at 281; see
also Erickson, 749 P.2d at 621 (citing this holding from Pike and
concluding that the ―same result is mandated in the instant case‖).
The whole point of applying a presumption of prejudice is to
mitigate the unconscious bias that commonly results from
improper jury contacts. See, e.g., Pike, 712 P.2d at 280 (noting ―[t]he
possibility that improper contacts may influence a juror in ways he
or she may not even be able to recognize‖); Anderson, 237 P. at 943
(mentioning that contact between a juror and a party to the action
―might, consciously or unconsciously, tend to influence the
judgment of the juror‖); State v. Swain, 835 P.2d 1009, 1011 (Utah
Ct. App. 1992) (―Because of the possible subconscious effect on the
juror, the court stated that even a denial by a juror that he or she
was affected by the contact is not sufficient to overcome the
presumption of prejudice.‖). If we could simply and reliably ask
jurors whether or not they were, in fact, prejudiced, we would
never need to presume prejudice. For the same reasons, a curative
instruction alone is insufficient to combat potential implicit jury
bias once the presumption is triggered.
¶96 Still, all is not lost for the State. In this case, we offer two
suggestions of how the State might rebut the presumption. First,
the State might call to testify the third parties who communicated
with the jury. In this way, the court essentially treats the third-
33
STATE v. SOTO
Opinion of the Court
party communicators as testimonial witnesses whom the
defendant can confront and cross-examine. See UTAH CONST. art. I,
§ 12 (―[T]he accused shall have the right . . . to be confronted by the
witnesses against [him or her] . . . .‖); U.S. CONST. amend. VI
(―[T]he accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .‖). The United States Supreme Court has
suggested this approach, explaining that the presumption of
prejudice is rooted in a defendant‘s Sixth Amendment right: ―[T]he
evidence developed against a defendant shall come from the
witness stand in a public courtroom where there is full judicial
protection of the defendant‘s right of confrontation, of cross-
examination, and of counsel.‖ Parker v. Gladden, 385 U.S. 363, 364
(1966) (per curiam) (quoting Turner v. Louisiana, 379 U.S. 466, 472–
73 (1965)) (internal quotation marks omitted). And in Parker, the
Court reversed because the bailiff, ―an officer of the State,‖ made
sensitive comments to the jury when ―he was not subjected to
confrontation, cross-examination or other safeguards guaranteed
to the petitioner.‖ Id.¶97 As applied here, the district court could have treated the
patrolman and IT technician as the State‘s witnesses—compelling
them to submit affidavits or testify to the jury as to the
inappropriateness of their comments and their unfitness to say
anything regarding the defendant‘s case. Here, we do not think
that the judge‘s curative instruction was equivalent to allowing
Soto to confront those individuals and glean directly from them, in
front of the jury, how much they did or did not know about the
case. For example, the judge‘s conclusory instruction that the
patrolman ―would have absolutely no knowledge of any part of
this trial‖ ignores the patrolman‘s (and bailiff‘s) official character
as an officer of the State. See supra ¶¶ 44–49, 76–77. And the
curative instruction downplayed the severity of what was said,
simply saying that the patrolman and IT technician ―were trying to
be funny‖ by making ―off the cuff‖ remarks. We agree with the
court of appeals that this euphemistic instruction ―may have done
as much harm as good.‖ State v. Soto, 2018 UT App 147, ¶ 21, 427
P.3d 1286.
¶98 As a second option, the State might argue that its evidence
of the defendant‘s guilt was so strong that the improper contacts
made no difference in the jury‘s verdict. Ordinarily, when we
determine prejudice and its effects, we look, inter alia, at the
strength of the evidence the State presented:
[I]n a case with less compelling proof, this Court will
more closely scrutinize the conduct. If the conclusion of
34
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the jurors is based on their weighing conflicting
evidence or evidence susceptible of differing
interpretations, there is a greater likelihood that they
will be improperly influenced through [the conduct].
Indeed, in such cases, the jurors may be searching for
guidance in weighing and interpreting the evidence.
They may be especially susceptible to influence, and a
small degree of influence may be sufficient to affect the
verdict.
State v. Troy, 688 P.2d 483, 486 (Utah 1984); see also State v.
Andreason, 718 P.2d 400, 402–03 (Utah 1986); State v. Stephens, 946
P.2d 734, 737 (Utah Ct. App. 1997); Tenney, 913 P.2d at 755.
¶99 The federal courts likewise use the strength of the
evidence in considering whether a presumption of prejudice was
adequately rebutted. See, e.g., United States v. Lloyd, 269 F.3d 228,
241 (3d Cir. 2001) (―We have further recognized that a heavy
‗volume of incriminating evidence‘ also can undermine a claim of
prejudice.‖ (citation omitted)); United States v. Rowe, 906 F.2d 654,
657 (11th Cir. 1990) (―In recognizing the degree of prejudice
required and the government‘s burden to establish harmless error,
the strength of the government's case has a bearing on the issue of
prejudicial error.‖); see also United States v. Honken, 541 F.3d 1146,
1160–61 (8th Cir. 2008); United States v. Hornung, 848 F.2d 1040,
1045–46 (10th Cir. 1988).
¶100 Having explained how the State might go about rebutting
the presumption of prejudice in a case like this, we now explain
why we remand to allow the State to do so.
C. We Remand to the District Court to Determine If the State Has
Rebutted the Presumption of Prejudice
¶101 In this case‘s current posture, the question of the
evidence‘s strength is clearly the most plausible path for the State
to argue harmlessness beyond a reasonable doubt. Accordingly,
the parties made arguments about the strength of the State‘s case
against Soto. However, we think that the district court is better
suited to address this matter.
¶102 We acknowledge that the court of appeals found that the
State did not rebut the presumption and accordingly reversed
Soto‘s conviction and remanded for a new trial. Soto, 2018 UT App
147, ¶ 24. However, in this opinion we have clarified the standard
for rebutting the presumption. Supra ¶¶ 88–92. And we have
explained that whether the State has met its burden of rebuttal is a
fact-intensive inquiry, supra ¶ 94, best left to the district court
35
STATE v. SOTO
Opinion of the Court
when possible. Accordingly, we find it more prudent to allow the
district court to examine the State‘s arguments in light of this
opinion and to determine if the State has successfully rebutted the
presumption. Our decision to remand the case for review of the
State‘s strength-of-the-evidence argument should not be seen as
approving or disapproving of the court of appeals‘ reversal, or
otherwise opining on the merits of the State‘s rebuttal of the
presumption.
CONCLUSION
¶103 A uniformed highway patrolman and court IT technician
made insensitive comments to the jury regarding Soto‘s guilt.
Because of who said what to the jury and the circumstances of the
interaction, Soto was entitled to a rebuttable presumption of
prejudice. The State now bears the burden of showing that the
interaction was harmless beyond a reasonable doubt. We remand
this matter back to the district court to determine whether the
presumption of prejudice has been so rebutted. If the district court
finds that the State did not rebut the presumption of prejudice
beyond a reasonable doubt, Soto must be given a new trial.
36
Cite as: 2022 UT 9JUSTICE PETERSEN, dissenting
JUSTICE PETERSEN, dissenting:
¶104 During a lunch recess in Anthony Soto‘s trial, as the jurors
rode in an elevator with a bailiff, both a state trooper and a court
IT technician who were not involved in the trial (and knew
nothing about Soto‘s case) made comments to the jurors along the
lines of, ―Just say he‘s guilty.‖ The question before us is whether
we should presume that the incident in the elevator prejudiced
Soto. In practical terms, this would mean that with respect to
Soto‘s motion for a mistrial, he would not bear the burden of
proving prejudice—in other words, he would not have to prove
that hearing the comments in the elevator had tainted the jurors‘
impartiality. Rather, the district court would presume that the
comments had biased the jurors against Soto, and the burden
would shift to the State to rebut that presumption and show the
incident was harmless. If the State were unable to meet this
burden, Soto would be entitled to a mistrial.
¶105 The majority concludes that our precedent has already
answered the question before us, and that it requires a
presumption of prejudice in this situation. The majority directs
district courts to use a ―balancing test‖ approach to assess whether
an incident of improper jury contact triggers a presumption of
prejudice. Specifically, the majority instructs courts to analyze
whether a presumption of prejudice applies by considering who
made the contact, what was said, and the circumstances of the
contact to determine whether the communication was likely to
influence a juror‘s judgment.
¶106 I fully agree with the majority that a criminal defendant‘s
constitutional right to a trial by an impartial jury is sacrosanct. But
I disagree with the majority on two points.
¶107 First, I would not adopt the balancing test established by
the majority. If we are to apply a presumption of prejudice to
certain unauthorized juror communications, the test for whether
the presumption applies should be tethered to our existing rules
defining impermissible communication with jurors. Instead, the
majority‘s balancing test conflates distinct principles established in
our precedent to arrive at an abstract balancing test that seems to
forget the work we have already done in this area.
¶108 Second, even applying the majority‘s holding that we
must presume prejudice here, I would reverse the court of appeals‘
decision because the district court substantially analyzed this
incident under such a standard. The district court took the report
of impermissible contact with the jury seriously; it immediately
37
STATE v. SOTO
JUSTICE PETERSEN, dissenting
interviewed each juror, with the parties present, to determine what
had happened; it considered defense counsel‘s motion for a
mistrial; and it ultimately found that the incident in the elevator
did not taint the jurors‘ impartiality—in other words, that the
contact was harmless. The court did not deny Soto‘s mistrial
motion because it found he had not demonstrated prejudice.
Rather, it made a factual determination that the jurors had not
been tainted by the comments. Further, the court instructed the
jury that the state trooper and the IT technician had no information
about Soto‘s case and the jury must not consider anything that the
two men had said to them. As our precedent requires, I would
defer to the district court‘s factual findings, and I would presume
that the jurors obeyed the instruction they were given. So I must
respectfully dissent.
ANALYSIS
I. THE BALANCING TEST
¶109 I would not adopt the ―balancing test‖ established by the
majority. It is unnecessarily generalized and novel, and it distorts
our existing precedent. Our precedent and procedural rules have
already established principles for identifying impermissible off-
the-record communication with jurors. In other words, we have
already considered the ―who,‖ the ―what,‖ and the ―under what
circumstances‖ and have established the following rules
identifying the type of outside contact that can unduly influence
jurors:
First, jurors may not have off-the-record communications
with trial participants, even about innocuous topics that are
not related to the trial (rule 1).
Second, during trial, jurors may not have off-the-record
communications with any person about a subject of the trial
(rule 2).
And third, during deliberations, the jury must not separate,
and, except for some narrow exceptions, jurors may not
have communications with anyone outside of the
deliberation room (rule 3).19
___________________________________________________________
19 I do not contend that these are the only rules aimed at
protecting juror impartiality. There may be others that are not
directly implicated by the analysis in this case.
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Cite as: 2022 UT 9JUSTICE PETERSEN, dissenting
¶110 There is no need to redo this calculus on a case-by-case
basis. To be clear, I am not saying that these rules answer in and of
themselves whether their violation triggers a presumption that the
defendant has been prejudiced. In other words, I do not contend
that these rules answer the specific question before us—whether
the circumstances here trigger a presumption of prejudice. Rather,
my point is that these are the foundational rules we have
established to identify which communications threaten juror
impartiality. They serve as guides to district courts in their efforts
to protect jurors from outside influence during trial. And we
should analyze whether the communication here should trigger a
presumption of prejudice using this existing framework.
¶111 I will discuss each of the three rules in more depth, and I
will demonstrate that up to this point, these principles have
guided our analysis regarding the application of a presumption of
prejudice. Specifically, this court has concluded that violations of
rules 1 and 3 trigger a presumption of prejudice. But we have not
addressed whether the presumption holds when rule 2, which
forbids jurors from communicating with anyone outside the trial
about a subject of the trial, is violated.20
¶112 Importantly, this case presents a violation of rule 2. So this
is our opportunity to analyze whether we should extend the
presumption of prejudice to cover violations of this rule, as well.
Instead, the majority insists we have already answered this
question using a framework of ―who,‖ ―what,‖ and ―under what
circumstances.‖ This is an unnecessary departure from our
existing principles.
A. Rule 1: Jurors and Trial Participants Must Not Communicate
Outside of the Trial
¶113 First, jurors may not have off-the-record communications
with trial participants about anything, even about topics that have
nothing to do with the trial. As our civil rules make clear, ―[t]here
shall be no off-the-record communication between jurors and
lawyers, parties, witnesses or persons acting on their behalf.‖ UTAH R.
CIV. P. 47(l) (emphasis added). Thus, jurors are precluded from
communicating and socializing outside of the trial with trial
___________________________________________________________
20 Of course, our precedent has not referenced these principles
as rules 1, 2, and 3. I employ these labels here only for ease of
reference within this opinion.
39
STATE v. SOTO
JUSTICE PETERSEN, dissenting
participants—people with an interest in the outcome of the trial or
whose credibility the jury may be called upon to assess. This rule‘s
mandate of ―no . . . communication‖ prohibits even innocuous
communication that is not substantive or case-related—like small
talk about the weather simply to pass the time. A brief and
incidental ―excuse me‖ in the hallway, or a ―gesundheit‖ after a
sneeze, would not offend this rule. But we do not want jurors and
witnesses, the parties, or their lawyers to say much more than that
to one another off the record. And as discussed below, we have
applied a presumption of prejudice when this rule is violated.
¶114 There are two primary reasons for this rule. First,
―[a]nything more than the most incidental contact during the trial
between witnesses and jurors casts doubt upon the impartiality of
the jury and at best gives the appearance of the absence of
impartiality.‖ State v. Pike, 712 P.2d 277, 279–80 (Utah 1985). And
second, we are concerned that socializing between jurors and trial
participants will lead to ―[p]ositive or negative impressions,
humorous feelings, expectations, or any such unintended and
unseen psychological coercion [that] may spring from such
interactions,‖ supra ¶ 36, which may ―exert influence upon the
deliberations of a juror, ‗consciously or unconsciously,‘‖ supra
¶ 36 (quoting State v. Anderson, 237 P. 941, 943 (Utah 1925)).
¶115 Two cases explain these rationales in depth.
1. State v. Anderson
¶116 In State v. Anderson, at the close of a two-week trial, it
came to light that a ―juror had frequently, in fact almost daily,
ridden back and forth from his home to the courthouse with one of
the prosecuting witnesses . . . .‖ 237 P. 941, 942. That ―prosecuting
witness‖ was not formally a party to the case but was an
―interested party‖—―one of the owners of the sheep which the
appellant [wa]s charged with having stolen,‖ id. at 944, and an
―active‖ participant in the State‘s case, id. at 943. The trial court
was ―satisfied that there was no intention on the part of [the
interested party and witness] to influence the verdict of the juror,
and that the act of carrying the juror to and from his home was one
of generosity and courtesy only.‖ Id. at 942.
¶117 But this court held that the arrangement violated the
defendant‘s right to an impartial jury, even assuming that the
interested party had not attempted to influence the juror. Id. at 943.
We explained that
the law requires of the juror such conduct during
that time that his verdict may be above suspicion as
40
Cite as: 2022 UT 9JUSTICE PETERSEN, dissenting
to its having been influenced by any conduct on his
part during the trial, or by any courtesy or favor
received by him from any one in any way directly or
indirectly interested in the result of the litigation.
Id. at 944 (emphasis added). Accordingly, we held that in the event
of ―any conduct or relationship between a juror and a party to an
action during trial that would or might, consciously or
unconsciously, tend to influence the judgment of the juror,‖ a new
trial was required ―unless it is made to appear affirmatively that
the judgment of the juror was in no way affected by such
relationship . . . .‖ Id. at 943 (emphasis added).
2. State v. Pike
¶118 We further explained the rationale for prohibiting out-of-
court contact between jurors and trial participants in State v. Pike.
In that case, the defendant, Pike, was charged with aggravated
assault. 712 P.2d 277, 278. Pike had tried to clear three party
crashers from a party in his neighborhood. Id. Several police
officers, including one Officer Fleming, arrived at the scene and
told the party crashers to leave. Id. at 278–79. Pike demanded that
Officer Fleming arrest the men and said he would ―take care of the
intruders if the officers did not.‖ Id. at 279. Officer Fleming drove
off. Id. Allegedly, the party crashers taunted Pike, who responded
by firing a shotgun at their vehicle. Id. Officer Fleming returned
and arrested Pike. Id.
¶119 Officer Fleming testified at trial. Id. at 279. During a recess,
he came into contact with some jurors. Id. The judge learned of the
interaction and questioned Fleming:
[A]fter the court had taken a short recess, the trial
judge questioned Officer Fleming in chambers as to
whether he had spoken to any jurors during the
recess. Officer Fleming admitted that a juror had
asked him why he was limping. Fleming replied: ―I
told him I had bunged my toe. . . . And he asked me
how I did that. And I told him about slipping in my
back yard on the water and breaking—‖ At this
point, the judge interrupted Fleming‘s narrative of
the conversation. The judge and counsel agreed to let
the incident go until after the verdict was in and then
to question the jurors involved in the conversation.
After the trial, the judge questioned the jurors
involved and apparently determined that the
conversation was innocuous.
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STATE v. SOTO
JUSTICE PETERSEN, dissenting
Id. (second alteration in original).
¶120 On appeal, we considered whether ―the constitutional
guarantee of a fair trial‖ had been compromised. Id. We concluded
that ―[a]nything more than the most incidental contact during the
trial between witnesses and jurors casts doubt upon the
impartiality of the jury and at best gives the appearance of the
absence of impartiality.‖ Id. at 279–80. We noted that, following
contact between jurors and trial participants, ―prejudice may well
exist even though it is not provable,‖ due to the "inherent difficulty
in proving how or whether a juror has in fact been influenced by
conversing with a participant in the trial.‖ Id. at 280. So we
declared that ―[t]he rule in this jurisdiction is that improper juror
contact with witnesses or parties raises a rebuttable presumption
of prejudice.‖ Id. We explained that this presumption applied only
to ―contacts between jurors and others involved in a trial that are
more than brief and inadvertent encounters.‖ Id. And we
―reaffirm[ed] the proposition that a rebuttable presumption of
prejudice arises from any unauthorized contact during a trial
between witnesses, attorneys or court personnel and jurors which
goes beyond a mere incidental, unintended, and brief contact.‖ Id.
Because Officer Fleming was ―an important prosecution witness,
who was both the arresting officer and a witness at the scene of the
altercation,‖ we presumed that the interaction ―no doubt had the
effect of breeding a sense of familiarity that could clearly affect the
jurors [sic] judgment as to credibility.‖ Id. at 280.
¶121 In essence, the rationale underlying rule 1 and the cases
that expound upon the principle it codifies, such as Anderson and
Pike, is that even innocent small talk between jurors and trial
participants is problematic because it creates an appearance of
impropriety and breeds familiarity that could subtly influence a
juror to favor one side or the other. These cases highlight the
danger of any contact between trial participants and jurors that is
more than ―inadvertent,‖ ―incidental,‖ ―unintended,‖ and ―brief.‖
Pike, 712 P.2d at 280.
B. Rule 2: Jurors May Not Have Off-the-Record Communications with
Any Person About a Subject of the Trial
¶122 The next foundational rule is that jurors may not have off-
the-record communications with any person about a subject of the
trial. This rule is codified in our rules of procedure. UTAH R. CIV. P.
47(l) (―Jurors shall not communicate with any person regarding a
subject of the trial.‖). And the civil rules make clear that the
converse is also true: ―Jurors may communicate with court
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Cite as: 2022 UT 9JUSTICE PETERSEN, dissenting
personnel and among themselves about topics other than a subject
of the trial.‖ Id. Further, the criminal rules require trial courts to
admonish jurors ―[a]t each recess of the court‖ that ―it is their duty
not to converse among themselves or to converse with, or suffer
themselves to be addressed by, any other person on any subject of
the trial . . . .‖ UTAH R. CRIM. P. 17(j).
¶123 Unlike rule 1, which applies only to communication
between jurors and trial participants, this rule applies to off-the-
record communication between jurors and any other person. This
is a sensible rule. Jurors are simply not allowed to discuss the trial
with anyone outside of the courtroom, even other jurors.
¶124 Rule 2 is the principle that is implicated in this case. The
reason that the comments of the state trooper and the IT technician
were problematic is that, while the two men did not actually know
anything about the case, their suggestions to ―just say he‘s guilty‖
touched upon a subject of the trial—the ultimate determination of
whether the defendant should be convicted.
¶125 We have not previously addressed whether a
presumption of prejudice should be triggered by a violation of this
rule. Indeed, that is the question before us today.
C. Rule 3: During Deliberations, the Jury May Not Separate or
Communicate with Anyone
¶126 The final foundational rule is that, during deliberations,
jurors must remain together, and except for some narrow
exceptions, may not communicate with anyone outside of the
deliberation room. As with the other two rules, this rule is codified
in our rules of procedure. The criminal rules state:
When the case is finally submitted to the jury, they
shall be kept together in some convenient place
under charge of an officer until they agree upon a
verdict or are discharged, unless otherwise ordered
by the court. Except by order of the court, the officer
having them under the officer‘s charge shall not
allow any communication to be made to them, nor
shall the officer speak to the jury except to ask them
if they have agreed upon their verdict, and the officer
shall not, before the verdict is rendered,
communicate to any person the state of their
deliberations or the verdict agreed upon.
UTAH R. CRIM. P. 17(l).
¶127 And it is codified in our civil rules:
43
STATE v. SOTO
JUSTICE PETERSEN, dissenting
When the case is finally submitted to the jury they
may decide in court or retire for deliberation. If they
retire they must be kept together in some convenient
place under charge of an officer until they agree
upon a verdict or are discharged, unless otherwise
ordered by the court. Unless by order of the court,
the officer having charge of them must not make or
allow to be made any communication to them with
respect to the action, except to ask them if they have
agreed upon their verdict, and the officer must not,
before the verdict is rendered, communicate to any
person the state of deliberations or the verdict agreed
upon.
UTAH R. CIV. P. 47(m) (emphasis added).
¶128 This court discussed this principle in State v. Thorne, 117 P.
58 (Utah 1911), and held that jury conduct in contravention of the
rule must result in a presumption of prejudice.
1. State v. Thorne
¶129 The defendant in Thorne asserted that a new trial was
necessary ―on the ground of the separation of the jury and the
misconduct of one of its members‖ following the submission of the
case. Id. at 66. During lunch, in violation of the requirement that a
deliberating jury not separate,21 ―one of the jurors with one of the
officers went into another part of the building where the juror
talked to some one over the telephone.‖ Id. This court concluded
that ―prejudice [wa]s presumed‖ and assigned to the State the
burden of showing that the communication was ―harmless.‖ Id.But because the State failed to show ―what the conversation over
the telephone was, or with whom it was held, or that it was
harmless, and could not have influenced or affected the
___________________________________________________________
21 When Thorne was decided, juries were subject during
deliberations to a procedural rule very similar to our current
criminal rule 17(l). See COMPILED LAWS OF UTAH § 9007 (1907)
(―After hearing the charge, the jury may either decide in court or
may retire for deliberation. If they do not agree without retiring an
officer must be sworn to keep them together in some private and
convenient place and not permit any person to speak to or
communicate with them, nor to do so himself, unless by order of
the court . . . .‖).
44
Cite as: 2022 UT 9JUSTICE PETERSEN, dissenting
deliberations of the juror or his verdict,‖ the verdict was
overturned. Id.D. The Majority’s Interpretation of Our Precedent
¶130 But in spite of this well settled and widely understood
framework, the majority develops a new balancing test to
determine whether a particular instance of unauthorized jury
contact triggers a presumption of prejudice. In light of the rules
outlined above, we do not need a new test. Any analysis for
determining if the presumption applies should be based upon the
rules we already have in place. We should follow the lines we have
already drawn, not blur them.
¶131 We have applied a presumption of prejudice when the
rule against off-the-record communication between jurors and trial
participants has been violated (rule 1). See, e.g., Pike, 712 P.2d at
280; Anderson, 237 at 943; UTAH R. CIV. P. 47(l). And we have
applied a presumption of prejudice when a juror violated the strict
rules governing jury deliberations (rule 3). See, e.g., Thorne, 117 at
66–67; UTAH R. CRIM. P. 17(l); UTAH R. CIV. P. 47(m). But we have
not addressed whether this presumption should apply to a
violation of rule 2, which is implicated by the facts here. The
question before us today is whether to extend our caselaw
regarding a presumption of prejudice to a violation of this rule. We
do not need a novel balancing test to answer that question.
¶132 Further, the majority‘s insistence that our precedent has
already decided this question overrides the particular rationales of
key precedent regarding jury impartiality.
¶133 For example, the majority interprets Pike to apply beyond
trial participants to juror conversations with anyone who can be
considered ―court personnel,‖ such as court employees like the IT
technician in this case. Supra ¶¶ 34, 49–50. This is because the term
―court personnel‖ appears twice in that case. Pike, 712 P.2d at 279
(―We have long taken a strict approach in assuring that the
constitutional guarantee of a fair trial not be compromised by
improper contacts between jurors and witnesses, attorneys, or
court personnel.‖(emphasis added)); id. at 280 (stating that we were
―reaffirm[ing] the proposition that a rebuttable presumption of
prejudice arises from any unauthorized contact during a trial
between witnesses, attorneys or court personnel and
jurors.‖(emphasis added)). The majority focuses on court
personnel who ―represent . . . the authority of the criminal justice
system,‖ as more likely to influence a juror under its ―who‖
analysis. Supra ¶ 50.
45
STATE v. SOTO
JUSTICE PETERSEN, dissenting
¶134 But Pike does not speak to communication between jurors
and people uninvolved in the trial. In context, it is clear that ―court
personnel‖ is used as a synonym for court participants or
courtroom personnel. In both instances in which ―court personnel‖
is used, the term is part of an exemplary list alongside participants
in a trial, such as witnesses and attorneys. See Pike, 712 P.2d at 279
(discussing ―improper contacts between jurors and witnesses,
attorneys, or court personnel.‖) (emphasis added); id. at 280
(―reaffirm[ing] the proposition that a rebuttable presumption of
prejudice arises from any unauthorized contact during a trial
between witnesses, attorneys or court personnel and jurors‖
(emphasis added)).22
¶135 Further, the rationale of Pike does not hold beyond the
confines of trial participants. To confirm this point, all one must do
is transpose the communication that was found to be problematic
in Pike to a communication between a juror and someone the
majority would deem to fall within the category of court personnel
with authority in the criminal justice system, like a judge. In this
transposed scenario, during a court recess a juror notices a judge
walking down an interior hallway favoring one leg. The jurors
asks the judge if she is alright. And the judge answers that she
―bunged [her] toe. . . . slipping in [her] back yard . . . .‖ Pike, 712
P.2d at 279.
___________________________________________________________
22 Indeed, when the Pike court used the term ―court personnel,‖
it cited to cases in which jurors had contact with participants in the
trial, not disinterested third parties who happen to work at the
courthouse. See State v. Pike, 712 P.2d 277, 279 (Utah 1985) (citing
State v. Crank, 142 P.2d 178, 194 (Utah 1943), and declining to
determine whether juror who spoke with a witness ―in a friendly
fashion‖ before the case was submitted to the jury warranted
reversal because the court remanded for a new trial on different
grounds); Glazier v. Cram, 267 P. 188, 190–91 (Utah 1928) (noting
juror ―[m]ingling intimately in social contact with prominent
witnesses upon whose testimony the case [was] determined is not
to be commended‖ but declining to reverse the verdict because the
parties knew about the contact but did not bring it to the trial
court‘s attention); State v. Anderson, 237 P. 941, 944 (Utah 1925)
(remanding for a new trial after juror rode to and from the
courthouse with prosecuting witness almost every day for the
three-week trial)).
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Cite as: 2022 UT 9JUSTICE PETERSEN, dissenting
¶136 Clearly, the same communication about an injured foot
that jeopardized the juror‘s impartiality in Pike because it took
place with a trial witness would pose no risk to the juror‘s
impartiality if it took place with a judge. This conversation would
not ―cast[] doubt upon the impartiality‖ of the juror. See Id. at 279.
And even if the juror felt sympathy or positive feelings toward the
judge, it would not matter because these feelings would not
influence the juror to favor one of the parties in the trial.23 In fact,
our civil rules explicitly permit communication between jurors and
―court personnel‖ as long as they do not discuss a subject of the
trial. See UTAH R. CIV. P. 47(l). So the rationale of Pike simply does
not fit outside the context of communications between jurors and
trial participants. To stretch Pike beyond this context distorts its
important analysis.
¶137 The same is true of the majority‘s reliance on Thorne for
the broad proposition that ―[o]nce an improper jury contact is
shown, ‗prejudice is presumed.‘‖ Supra ¶ 32 (quoting Thorne, 117
P. at 66). I agree in general that Thorne shows this court has long
taken juror impartiality very seriously. But as discussed above,
that case involves the unique setting of jury deliberations and
apparent juror misconduct. Supra ¶ 68. It does not tell us whether
the presumption of prejudice this court applied there should be
extended to this setting, where outsiders to the trial make
comments to the jury about a subject of the trial outside the context
of deliberations.
¶138 To be clear, I agree with the majority that the statements
here are impermissible and must be taken seriously. They are a
violation of rule 2. And I agree that the comments are made even
___________________________________________________________
23 We have previously made this very point. In a capital case,
the judge dismissed the jury early in an off-the-record exchange,
because some of the jurors had indicated they had
―appointments.‖ State v. Maestas, 2012 UT 46, ¶ 67, 299 P.3d 892.
The defendant argued that the ex parte communication between the
judge and jury should be presumed to have prejudiced him
because it could have caused the jury to feel ―a greater warmth
and affinity toward the judge.‖ Id. ¶¶ 68-71. We rejected this
argument as inapplicable, stating that, ―as the judge was not an
adversary to Mr. Maestas in the proceedings, it would not have
been problematic if jurors felt appreciative toward the judge after
being dismissed.‖ Id. ¶ 71.
47
STATE v. SOTO
JUSTICE PETERSEN, dissenting
worse by the fact that they came from an officer of the law and a
court employee. But those facts are relevant to the final analysis of
whether the incident prejudiced the defendant. The question we
must answer here is what standard we should apply when
conducting that analysis and who bears the burden of proof.24 And
my point is that our prior cases have not addressed whether the
presumption of prejudice that we have applied upon a violation of
other rules protecting jury impartiality should apply to a violation
of the rule against communication between jurors and ―any
person‖ about a subject of the case.
¶139 Other courts have addressed this question when
interpreting the United States Constitution‘s Sixth Amendment or
other similar state constitutional amendments. Those courts‘
holdings have been inconsistent with regard to the presumption of
prejudice.
¶140 The United States Supreme Court originally declared a
presumption of prejudice existed whenever someone
communicated with a juror about the trial. See Remmer v. United
States, 347 U.S. 227 (1954) (Remmer I); Remmer v. United States, 350
U.S. 377 (1956) (Remmer II). In Remmer I, a man had offered to pay
the jury foreman to secure a not guilty verdict—an offer that the
judge ultimately determined was a (bad) joke that did not
prejudice the case. See Remmer I, 347 U.S. at 229. On review,
however, the Court 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‖ was
―presumptively prejudicial‖ under the Sixth Amendment. Id.¶141 But subsequent cases called that holding into question. In
Smith v. Phillips, the Court said that ―[t]his Court has long held that
the remedy for allegations of juror partiality is a hearing in which
___________________________________________________________
24 The majority argues that we have repeatedly assessed juror
contacts with judges or bailiffs under a more heightened standard.
Supra ¶¶ 45, 82. But the majority cites no case where we have
applied a presumption of prejudice when a judge or bailiff
communicates outside of court with a juror just because of ―who‖
they are. Rather, the cases cited by the majority show that a
communication between a judge or bailiff and a juror is not
problematic unless they violate an existing rule by, for example,
making a comment about a subject of the trial. See supra ¶ 82.
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Cite as: 2022 UT 9JUSTICE PETERSEN, dissenting
the defendant has the opportunity to prove actual bias.‖ 455 U.S.
209, 215 (1982). It characterized the Remmer cases as describing
bribes as ―presumptively prejudicial‖ and instructing ―trial
judge[s] to determine the circumstances, the impact thereof upon
the juror, and whether or not [they were] prejudicial.‖ Id. at 216(second alteration in original) (citation omitted) (internal quotation
marks omitted). And Smith noted that pre-Remmer Supreme Court
cases had required parties ―to show the existence of actual bias‖ in
order to disqualify jurors. Id. at 216 (quoting Dennis v. United
States, 339 U.S. 162, 167 (1950)).
¶142 And the Supreme Court was again dismissive of the
presumption of prejudice in United States v. Olano, 507 U.S. 725(1993). In Olano, the trial judge allowed alternate jurors to attend
jury deliberations. Id. at 729–30. While that violated the proper
procedural practice, the Court determined that the defendants
failed to ―ma[k]e a specific showing of prejudice‖ and that there
was ―no reason to presume prejudice here.‖ Id. at 737. Olano, like
Smith (to which Olano cited heavily), characterized the Remmer
cases as an instance where extreme conduct triggered a
presumption of prejudice. Id. at 738. So the Court said that ―[t]here
may be cases where an intrusion should be presumed prejudicial.‖
Id. at 739. But the Court did not apply a presumption of prejudice
merely because the jurors discussed the case with a disinterested
party (in that case, an alternate juror). It simply noted that the
error was not ―inherently prejudicial‖ and not, at least in this
instance, actually prejudicial. Id. at 740 (citation omitted)(internal
quotation marks omitted).
¶143 Here, we could decide that since we have applied a
presumption of prejudice to violations of the other two jury
impartiality rules, we should apply it to a violation of this rule as
well. But the risks to juror impartiality posed by the conduct here
are different than the risks caused by fraternization between jurors
and trial participants or a juror separating during deliberations. It
may be that the circumstances here warrant a presumption of
prejudice as well. But the majority has not explained why, because
it has focused its energies on arguing that we have already
answered this question.
II. THE DISTRICT COURT SATISFIED THE MAJORITY‘S
STANDARD
¶144 Ultimately, however, I do not find the presumption of
prejudice to control the outcome here. This is because the district
court‘s handling of this matter essentially satisfied that standard.
49
STATE v. SOTO
JUSTICE PETERSEN, dissenting
The court did what the U.S. Supreme Court required in Remmer I:
it ―determine[d] the circumstances, the impact thereof upon the
juror[s], and whether or not it was prejudicial, in a hearing with all
interested parties permitted to participate.‖ Remmer v. United
States, 347 U.S. 227, 230 (1954). Upon learning of the interaction in
the elevator, the court interviewed each juror individually in the
presence of the parties and counsel to determine what the juror
had heard and whether those comments would affect the juror in
any way.
¶145 Based on the jurors‘ answers, the court then made the
following findings on the record: that the jurors found the
comments to have been made in a ―kind of a joking off-the-cuff
manner‖; none of the jurors took the comments seriously; no juror
indicated that they felt either the deputy or the IT technician ―had
any knowledge of this trial‖; and when asked if the comments
would affect their decision-making, ―there was not even a person
that hedged when they answered the question. They were all with
absolute certainty that . . . this would have absolutely no [e]ffect on
them.‖
¶146 When the jury returned, the court gave them a curative
instruction informing them that the state trooper and the IT
technician knew nothing about the trial, and reminding the jury
that their verdict must be based only on the evidence at trial.
¶147 In denying Soto‘s motion for a mistrial, the court did not
place the burden of proof on Soto and ground its decision in a
failure to prove prejudice. Rather, the court assumed the
communication could have caused prejudice and denied the
motion only after assuring itself that the comments had not tainted
the jury and were therefore harmless.
¶148 The court of appeals and the majority brush aside the
jurors‘ assurances that they were not impacted by the comments,
the district court‘s factual findings, and the court‘s curative
instruction. Supra ¶ 95. This disregards our general practice of
deferring to a district court‘s factual findings25, see State v. Perea,
___________________________________________________________
25 Along these lines, I disagree with the majority‘s conclusion
that the bailiff‘s silence in the elevator may have aggravated the
improper contact here, because the jurors could have perceived the
bailiff to be tacitly endorsing the comments. Supra ¶¶ 81–83. There
are few record facts about the bailiff‘s conduct in the elevator. We
(continued . . .)
50
Cite as: 2022 UT 9JUSTICE PETERSEN, dissenting
2013 UT 68, ¶ 32, 322 P.3d 624, and presuming that jurors follow
instructions, State v. Harmon, 956 P.2d 262, 272–73 (Utah 1998).
Further, our concern in Pike and Anderson that jurors may not be
aware of the bias that can result from over-familiarity with trial
participants does not automatically apply to every situation in
which jurors are asked how a particular interaction has affected
them. See State v. Pike, 712 P.2d 277, 280 (Utah 1985); State v.
Anderson, 237 P. 941, 943 (Utah 1925). It is not obvious that the
jurors here would be unable to judge whether the comments in the
elevator had biased them. And the district court, who observed the
jurors as they answered its questions, found that the jurors
disregarded the comments. I see no basis for overriding these
findings.
CONCLUSION
¶149 We do not need to reinvent our rules governing
communications with jurors. The rules found in our caselaw and
codified in our procedural rules are clear and we should apply
them with consistency. While we have applied a presumption of
prejudice to violations of two of the rules protecting juror
impartiality and jury deliberations, we have not addressed
whether to apply it in the event of unauthorized communications
between jurors and ―any person‖ about a ―subject of the trial.‖
Arguing that our precedent already answers this question, the
majority does not explain why we should extend the presumption
to the circumstances here. In any event, I conclude that the district
court substantially applied a presumption of prejudice here and
dismissed Soto‘s motion for a mistrial only after assuring itself that
the comments to the jury were harmless. Accordingly, I would
reverse the court of appeals. Or, at most, I would remand to the
district court to allow that court to determine if its decision would
remain the same under the majority‘s newly announced beyond-a-
reasonable-doubt standard.
know that the bailiff recognized that the comments were
problematic and immediately reported the incident to the court
after the lunch recess so the court and parties could determine how
to handle it. I see no record support for speculation that the
bailiff‘s behavior may have conveyed to the jurors that he
approved of the comments. Most importantly, the trial court made
no factual findings that the bailiff‘s handling of the situation
influenced the jurors in any way.
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