SUMMARY

July 23, 2020

2020COA108

No. 16CA2201, People v. Newman — Evidence — Competency 

of Juror as Witness — Inquiry into Validity of Verdict or 

Indictment — Extraneous Prejudicial Information

A division of the court of appeals addresses for the first time 

the definition of “legal content” as that term is used to define what 

constitutes “extraneous prejudicial information” under CRE 

606(b). The division concludes that, in the context of CRE 606(b), 

extraneous “legal content” refers to a statement of law that is 

inconsistent with or supplemental to the instructions provided by 

the trial court. Because the defendant presented credible evidence 

that extraneous prejudicial information may have been introduced 

to the jury, the division concludes that the trial court erroneously 

denied the defendant’s motion for a new trial without affording him 

an evidentiary hearing.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2020COA108

Court of Appeals No. 16CA2201

City and County of Denver District Court No. 15CR5700

Honorable Brian R. Whitney, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Damon D. Newman,

Defendant-Appellant.

JUDGMENT VACATED AND CASE

REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE TOW

Román and Pawar, JJ., concur

Announced July 23, 2020

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy 

State Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Jurors are generally permitted, even expected, to lean on their 

own experience and background — including “their professional 

expertise and education” — during deliberations. Kendrick v. 

Pippin, 252 P.3d 1052, 1065 (Colo. 2011), abrogated on other 

grounds by Bedor v. Johnson, 2013 CO 4. But what if that 

professional expertise and education is in the law? In this appeal, 

we must explore the boundaries of what a juror who is a lawyer 

may do and say during deliberations. In doing so, we address for 

the first time the definition of “legal content” as that term is used to 

define what constitutes “extraneous prejudicial information” under 

CRE 606(b). We conclude that, in the context of CRE 606(b), 

extraneous “legal content” refers to a statement of law that is 

inconsistent with or supplemental to the instructions provided by 

the trial court. 

¶ 2 After a jury convicted defendant, Damon D. Newman, of sexual 

assault, but before he was sentenced, Newman filed a motion for a 

new trial, asserting that one of the jurors — a lawyer — introduced 

extraneous prejudicial information during deliberations. The trial 

court denied the motion without a hearing. Because Newman

provided competent evidence that extraneous prejudicial 
2

information was improperly before the jury, we conclude that he 

was entitled to a hearing on two of the claims in his motion. Thus, 

we vacate the judgment of conviction and remand for an evidentiary 

hearing on Newman’s request for a new trial. 

I. Background1

¶ 3 In March 2011, D.B. reported to the Denver Police Department 

that she had been sexually assaulted at gunpoint. As part of the 

ensuing investigation, D.B. completed a sexual assault examination 

kit. The examination revealed DNA belonging to an unidentified 

male. 

¶ 4 Newman, who had been living in Colorado at the time of the 

assault, moved to California in the spring of 2012. Newman was 

later arrested in California on an unrelated offense, and a DNA 

sample was obtained from him. In October 2015, Denver police 

were alerted that Newman’s DNA had been run through the CODIS 

multistate DNA database and was a preliminary match with the 

 

1 The factual background set forth here is gleaned from the evidence 

presented at trial. In the event Newman is successful in obtaining a 

new trial on remand, we do not intend for this recitation to be taken 

as having any preclusive effect, as the determination of the facts 

would remain in the sole purview of a new jury. 
3

DNA from the March 2011 assault. Newman was then extradited to 

Colorado and charged with one count of sexual assault armed with 

a deadly weapon. 

¶ 5 At trial, Newman testified in his own defense. He admitted to 

having sexual relations with D.B. but maintained that it was 

consensual. Following the trial, a jury convicted Newman as 

charged. 

¶ 6 Prior to sentencing, Newman filed a motion for a new trial

asserting that he was denied his constitutional right to a fair trial 

because extraneous prejudicial information had improperly been 

before the jury during their deliberations. Accompanying Newman’s 

motion was a signed and sworn affidavit from one of the jurors —

Juror S.P. — which alleged that Juror M.O., a practicing attorney, 

had made a number of statements during deliberations concerning 

criminal law and proceedings. It also alleged that he had conducted 

outside research regarding character evidence and shared the 

results of his research with the rest of the jury. 

¶ 7 The trial court denied Newman’s motion for a new trial without

conducting a hearing, concluding that none of the statements 

detailed in the affidavit constituted extraneous prejudicial
4

information, and thus the court could not consider the statements 

under CRE 606(b). Newman filed a motion for reconsideration, but 

that too was denied. 

¶ 8 Ultimately, Newman was sentenced to an indeterminate term 

of thirty-two years to life in prison. He now appeals the denial of 

his motion for new trial. 

II. Standard of Review

¶ 9 “The decision of a trial court to grant or deny a new trial is a 

matter entrusted to the court’s discretion and will not be disturbed 

on review absent an abuse of that discretion.” People v. Wadle, 97 

P.3d 932, 936 (Colo. 2004). A trial court abuses its discretion when 

its decision is manifestly arbitrary, unreasonable, or unfair, People 

v. Clark, 2015 COA 44, ¶ 215, and it “necessarily abuse[s] its 

discretion if it base[s] its ruling on an erroneous view of the law or 

on a clearly erroneous assessment of the evidence,” Wadle, 97 P.3d 

at 936 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 

(1990)). 

¶ 10 The underlying issue of whether extraneous prejudicial 

information was before the jury presents a mixed question of law 

and fact. Kendrick, 252 P.3d at 1064; People v. Holt, 266 P.3d 442, 
5

444 (Colo. App. 2011). We review de novo the trial court’s 

conclusions of law, but we defer to the court’s findings of fact if they 

are supported by competent evidence in the record. People v. 

Harlan, 109 P.3d 616, 624 (Colo. 2005). But see Kendrick, 252 P.3d 

at 1064 (“We apply an abuse of discretion standard to the court’s 

findings of fact . . . .”). 

III. Applicable Law

A. CRE 606(b)

¶ 11 A juror is generally prohibited from testifying about any 

“matter or statement occurring during the course of the jury’s 

deliberations” or about “the effect of anything upon his or any other 

juror’s mind or emotions.” CRE 606(b); Kendrick, 252 P.3d at 1063. 

Nor may a court receive an “affidavit or evidence of any statement 

by [a] juror” concerning as much. CRE 606(b); Kendrick, 252 P.3d 

at 1063. This rule seeks to “promote finality of verdicts, shield 

verdicts from impeachment, and protect jurors from harassment 

and coercion,” and thus “strongly disfavors any juror testimony 

impeaching a verdict.” Harlan, 109 P.3d at 624; see also Kendrick, 

252 P.3d at 1063. 
6

¶ 12 However, notwithstanding the rule’s broad limitations, CRE

606(b) contains narrow exceptions, one of which permits a juror to

testify as to “whether extraneous prejudicial information was 

improperly brought to the jurors’ attention.” CRE 606(b)(1). To 

determine whether a defendant is entitled to a new trial based on 

the jury’s exposure to extraneous prejudicial information, a court 

employs a two-part inquiry. Kendrick, 252 P.3d at 1063; Harlan, 

109 P.3d at 624. First, “a court makes a determination that 

extraneous information was improperly before the jury.” Harlan, 

109 P.3d at 624. Second, “based on an objective ‘typical juror’ 

standard, [a court] makes a determination whether use of that 

extraneous information posed the reasonable possibility of prejudice 

to the defendant.” Id.

¶ 13 “When a party seeks to impeach a verdict based on an 

allegation of juror misconduct, the party has a limited right to an 

evidentiary hearing on those allegations.” Kendrick, 252 P.3d at

1063. However, CRE 606(b) limits a trial court’s ability to inquire 

into such allegations. Clark, ¶ 218. “[I]n order to satisfy CRE 

606(b), before granting a hearing the court must first conclude that 

the party alleging misconduct has presented competent evidence 
7

that extraneous prejudicial information was before the jury.” 

Kendrick, 252 P.3d at 1063-64 (citing Harlan, 109 P.3d at 624). 

¶ 14 We note that the supreme court has used the phrase 

“competent evidence” in this context in two different ways. In 

Harlan, 109 P.3d at 623, the supreme court referred to “competent 

evidence” as the standard for reviewing the trial court’s findings of 

fact after an evidentiary hearing. But in Kendrick, 252 P.3d at

1063-64, the phrase refers to the threshold showing necessary to be 

entitled to an evidentiary hearing in the first place. Clearly, these 

required showings cannot be the same, lest the quantum of 

evidence creating the entitlement to the hearing would necessarily 

also be sufficient to warrant relief in every case in which a hearing 

was granted — thus making any hearing unnecessary. Rather, in 

the context of the showing necessary to be entitled to a hearing, 

“competent evidence” merely means evidence that is admissible 

under CRE 606(b), People v. Garcia, 752 P.2d 570, 583 (Colo. 1988), 

which indicates that prejudicial extraneous information may have 

been before the jury, Clark, ¶ 239. 
8

B. Extraneous Prejudicial Information

¶ 15 In Kendrick, our supreme court reiterated that “jurors are 

required to consider only the evidence admitted at trial and the law 

as given in the trial court’s instructions.” 252 P.3d at 1064 

(quoting Harlan, 109 P.3d at 624). Accordingly, “any information 

that is not properly received into evidence or included in the court’s 

instructions is extraneous to the case and improper for juror 

consideration.” Id. (quoting Harlan, 109 P.3d at 624). The court 

observed that extraneous prejudicial information consists of (1) 

“legal content and specific factual information” (2) “learned from 

outside the record” (3) that is “relevant to the issues in a case.” Id. 

1. Legal Content

¶ 16 We turn first to the question of what constitutes “legal 

content.” Because Kendrick involved a challenge to extraneous 

factual, rather than legal, information, the supreme court did not 

define the term “legal content.” See id. at 1066 (considering only a 

“juror’s use of her background in engineering and mathematics to 

calculate . . . speed, distance, and reaction time”). Indeed, no 

published case in Colorado has yet provided a definition of “legal 

content” in this context. Nor, as relevant here, has any Colorado 
9

case navigated the fine line between a lawyer-juror’s permitted 

application of her background professional and educational 

experience and the impermissible introduction of “legal content . . . 

learned from outside the record.” Id. at 1064 (citing Harlan, 109 

P.3d at 625). Resolving the issue before us requires that we do so 

now. 

¶ 17 Though our supreme court has not defined the term, we do 

find guidance in some of the court’s prior decisions. 

¶ 18 In Harlan, during their deliberations in the death penalty 

phase of a case, one or more jurors consulted various passages 

from the Bible regarding the punishment for murder and 

introduced that information into the jury room for consideration by 

other jurors. 109 P.3d at 629. The court observed that “‘Holy 

Scripture’ has factual and legal import for many citizens and the 

actual text introduced into the deliberations without authorization 

by the trial court plainly instructs mandatory imposition of the 

death penalty, contrary to state law.” Id. at 633. “Such a ‘fact’ is 

not one presented in evidence in this case and such a ‘legal 

instruction’ is not the law of the state or part of the court’s 

instructions.” Id. at 632. Thus, to the extent the Biblical passages 
10

were considered legal, rather than factual, they were improper 

because they conflicted both with Colorado law and with the trial 

court’s instructions. 

¶ 19 In Wiser v. People, 732 P.2d 1139 (Colo. 1987), a juror 

consulted a dictionary for a definition of burglary, which was one of 

the crimes with which the defendant was charged. Id. at 1140. The 

court concluded that the juror’s conduct was improper. Id. at 1141. 

“Jurors are required to follow only the law as it is given in the 

court’s instructions; they are bound, therefore, to accept the court’s 

definitions of legal concepts and to obtain clarifications of any 

ambiguities in terminology from the trial judge, not from extraneous 

sources.” Id. (quoting Niemand v. Dist. Court, 684 P.2d 931, 934 

(Colo. 1984)). 

¶ 20 Indeed, Niemand also provides some guidance. In that case, 

the supreme court was not directly addressing a claim involving a 

juror introducing extraneous prejudicial information. Rather, the 

trial court had already ordered a new trial because a juror had 

independently researched various definitions in Black’s Law

Dictionary related to second degree murder and manslaughter. 684 

P.2d at 932-33. The supreme court was asked to resolve whether, 
11

having been convicted only of second degree murder in the first 

trial, the defendant could be retried for first degree murder after his 

conviction was vacated as a result of the juror’s misconduct. Id. at 

934. But, relevant to our inquiry, in Niemand, the court 

acknowledged that the juror’s misconduct included reviewing 

definitions of terms such as “malice,” “depravity of heart,” 

“passionless,” “implied malice,” and “atrocity,” among others. Id. at 

932 & n.1. Significantly, these terms were not included in any of 

the trial court’s instructions to the jury. 

¶ 21 Finally, in Alvarez v. People, 653 P.2d 1127 (Colo. 1982), the 

trial court had provided the jury with the standard definition of 

“reasonable doubt.” Id. at 1130 & n.7. “One of the jurors was 

troubled as to whether her doubts were ‘reasonable,’ ‘imaginary,’ or 

‘vague,’ terms used in the reasonable doubt instruction, and she 

consulted her dictionary at home for the definitions of these words.” 

Id. at 1130. After discussing her research with another juror, she 

decided that her doubts were not reasonable, and she voted to find 

the defendant guilty. Id. The supreme court stated that “[t]here 

can be no question but that a juror’s consultation of a dictionary to 
12

assist in understanding legal terminology in the court’s instructions 

is improper.” Id. at 1131. 

¶ 22 Another division of this court faced a similar claim. In Holt, 

the prosecution conceded, and the division agreed, that where the 

defendant was charged with vehicular eluding, several jurors acted 

improperly when they consulted a dictionary definition of “elude.” 

However, the division rejected the defendant’s challenge to one 

juror’s statement that, based on his personal experience, vehicular 

eluding was a minor traffic violation the penalty for which is a “slap 

on the wrist.” Holt, 266 P.3d at 444. The division observed that the 

juror did not introduce into the jury room language from the 

Colorado Revised Statutes or “an article purporting to describe or 

characterize the penalty for vehicular eluding.” Id. at 446. The 

division stated that 

[t]he emphasis on the exception for legal 

content precludes any suggestion that lawyers 

and other individuals trained in certain 

aspects of the law may use knowledge acquired 

through their training and experience in 

deciding what law applies to resolve a matter 

before them and share that knowledge with

other members of the jury. 

Id. at 445-46 (emphasis added). 
13

¶ 23 As these cases make clear, “legal content” means a statement 

of law. 

¶ 24 But does legal content include more than just statements of 

law? For example, if a juror is a lawyer, is any comment related to 

the legal aspects of the case necessarily within the proscription 

against introducing “legal content”? For the reasons that follow, we 

answer these questions “no.” 

¶ 25 First, we are hesitant to construe “legal content” so broadly, as

too expansive a definition risks nullifying the General Assembly’s 

intent that attorneys be permitted to serve as jurors. See Ch. 159, 

sec. 6, § 16-10-103, 1998 Colo. Sess. Laws 466 (repealing the 

statutory provision that automatically disqualified all lawyers from 

serving on a jury). The legislature must have understood that 

lawyers serving as jurors would, just as any other jurors, 

necessarily draw on their experiences in performing their duties. 

For example, a lawyer-juror must be able to draw on his or her 

education and experience in assessing the evidence, and any 

reasonable inferences to be drawn from it. 

¶ 26 In United States v. McCall, No. CR 00-0505 WHA, 2009 WL 

10681057 (N.D. Cal. Dec. 22, 2009), the United States District 
14

Court for the Northern District of California rejected an argument 

that a juror introduced extraneous information when she 

“necessarily drew on her particular expertise [as a lawyer], not 

common to all jurors as part of the personal experiences all jurors

bring to the deliberations.” Id. at *3. Citing precedent from the 

Ninth Circuit, the court noted that “a juror’s personal experience 

and knowledge including specialized professional training may be 

part of jury deliberations and is not extrinsic evidence.” Id. (citing 

Grotemeyer v. Hickman, 393 F.3d 871 (9th Cir. 2004)). Accordingly, 

the court suggested that a lawyer-juror’s “general legal knowledge” 

that is “not in any way specific to [the defendant] or the issues in 

the present action” is not extraneous prejudicial information. Id. at 

*4. The court reasoned that “[i]f defendant McCall were correct that 

lawyers necessarily share ‘extrinsic information’ with other jurors 

during deliberations by drawing on their expertise as attorneys, it 

would be impossible for lawyers to serve on juries at all.” Id. at *3. 

Moreover, the court also cautioned that “[o]ur system would grind 

to a halt if venirepersons could be left on the jury and then be 

criticized after the verdict for doing nothing more than what was 

imminently (sic) foreseeable.” Id. 
15

¶ 27 Although the McCall court did not speak in terms of “legal 

content,” its reasoning is nevertheless applicable here. If we were to 

construe the concept of “legal content” so broadly as to encompass 

any information drawn from a lawyer-juror’s professional 

background, attorneys would effectively be prohibited from serving 

as jurors. But, as noted above, that would conflict with the intent 

of our legislature. See Ch. 159, sec. 6, § 16-10-103, 1998 Colo. 

Sess. Laws 466. 

¶ 28 Nor can we conclude that a lawyer-juror’s legal training is 

problematic merely because that lawyer-juror will have pre-existing 

views about the law, or because his or her discussion of the case 

during deliberations will necessarily involve his or her experience 

with or understanding of legal principles and the legal system. 

“[V]irtually every juror will have preconceived notions about the 

legal process . . . .” Holt, 266 P.3d at 446 (quoting Fullwood v. Lee, 

290 F.3d 663, 684 (4th Cir. 2002)). Construing “legal content” too 

broadly ignores the fact that, “[a]s a practical matter, it is 

impossible to select a jury free of preconceived notions about the 

legal system or to prevent discussion of such information in the jury 

room.” Id. Indeed, “[n]either Kendrick nor prior supreme court 
16

decisions evidence an intent to categorize such discussions as 

extraneous information under CRE 606(b)(1).” Id. To do so could 

expose jurors to greater post-trial scrutiny, which would undermine

CRE 606’s purpose to “promote finality of verdicts, shield verdicts 

from impeachment, and protect jurors from harassment and 

coercion.” Harlan, 109 P.3d at 624; see Holt, 266 P.3d at 446. 

¶ 29 Finally, “we are compelled to err in favor of the lesser of two 

evils — protecting the secrecy of jury deliberations at the expense of 

possibly allowing irresponsible juror activity.” Garcia v. People, 997 

P.2d 1, 7 (Colo. 2000) (quoting United States v. Thomas, 116 F.3d 

606, 623 (2d Cir. 1997)). Narrowly construing “legal content” 

prioritizes such secrecy and promotes free discussion during 

deliberations. 

¶ 30 Thus, we conclude that “legal content” in this context is 

limited to statements of law. 

2. Outside the Record

¶ 31 Turning to Kendrick’s second prong, we must explore when a 

lawyer-juror’s statements will be deemed extraneous. 

¶ 32 Clearly, if a juror conducts an independent investigation into 

either the facts or the law, that juror introduces information from 
17

outside the record. See Wadle, 97 P.3d at 937 (researching on the 

internet to learn about the effects of an anti-psychotic medication 

mentioned during testimony); Wiser, 732 P.2d at 1140 (consulting a 

dictionary for a definition of the crime charged). But what if the 

juror does not engage in an outside investigation, and relies on his 

or her memory and knowledge? Where is the line between a lawyerjuror appropriately drawing on his or her professional expertise and 

education and improperly introducing legal content? 

¶ 33 As the supreme court noted in Kendrick, “[t]he line between a 

juror’s application of her background professional and educational 

experience to the record evidence and a juror’s introduction of legal 

content or specific factual information learned from outside the 

record can be a fine one.” Kendrick, 252 P.3d at 1066.

¶ 34 The court in Kendrick “repeatedly emphasized that jurors may 

properly rely on their professional and educational expertise to 

inform their deliberations so long as they do not ‘bring in’ or 

‘introduce’ legal content learned from outside the record.” Holt, 266 

P.3d at 445 (citing Kendrick, 252 P.3d at 1056, 1063, 1065-66). 

This admonishment safeguards the court’s exclusive authority to 

instruct the jury. See Harlan, 109 P.3d at 624 (“[J]urors are 
18

required to consider only the . . . law as given in the trial court’s 

instructions . . . .”). In other words, the focus is on ensuring that 

the trial court, and not the lawyer-juror, is the source of all the law 

the jury considers. 

¶ 35 Again, as the division recognized in Holt, lawyer-jurors may 

not “use knowledge acquired through their training and experience 

in deciding what law applies to resolve a matter before them and 

share that knowledge with other members of the jury.” 266 P.3d 

445-46. Thus, if the lawyer-juror (or any other juror) introduces a 

statement of law that is inconsistent with or supplemental to the 

instructions provided by the trial court, that statement is

necessarily outside of the record. Accord In re Stankewitz, 708 P.2d 

1260, 1262 (Cal. 1985) (defining “extraneous law” for purposes of 

impeaching a jury verdict as “a statement of law not given to the 

jury in the instructions of the court”).

3. Relevant to Issues in the Case

¶ 36 The third prong of Kendrick requires that the challenged 

information be relevant to the issues before the jury. 252 P.3d at 

1064. Again, this is part of the threshold inquiry into whether a 
19

party is entitled to an evidentiary hearing. Id. at 1063-64 (citing 

Harlan, 109 P.3d at 624). 

¶ 37 Recall that in Holt, the division rejected the defendant’s 

challenge to a juror’s observation, based on his personal experience, 

as to the severity of the offense and any potential punishment. 

Although this was in part based on the division’s conclusion that 

the statement was not legal content, it also noted that “the severity 

of the vehicular eluding charge was not relevant to the issues in 

this case.” Holt, 266 P.3d at 445. 

¶ 38 In People v. Bohl, a juror in a homicide case had apparently 

conducted independent research regarding decomposition of a body 

after there was testimony that the body was decomposed during the 

autopsy. 2018 COA 152, ¶ 19. However, the key issue in the case 

was not how long the victim had been dead, but rather how long the 

victim had endured blunt force trauma before she died, as that 

related to whether the defendant had the requisite intent for first 

degree murder. Id. at ¶ 20. The defendant was not entitled to 

impeach the verdict because, in part, “any extraneous information 

that [the juror] obtained was not relevant to a key issue at trial.” Id.

at ¶ 26 (citing Wiser, 732 P.2d at 1143). 
20

¶ 39 And in Niemand, the juror misconduct involved researching 

legal concepts that were related to the homicide charges at issue, 

but were not specifically elements. 684 P.2d at 932 & n.1.

¶ 40 Thus, if a statement of law relates to the definition or elements 

of the crime, it clearly satisfies the third prong of Kendrick. See, 

e.g., Wiser, 732 P.2d at 1141. But statements of law are also 

improper if they relate to any other issue before the jury. See Holt, 

266 P.3d at 445. 

4. Reasonable Possibility of Prejudice 

¶ 41 Even if an attorney-juror introduces extraneous legal content, 

however, the defendant must still demonstrate prejudice. Harlan, 

109 P.3d at 625. The test for whether an “extraneous” statement is 

also “prejudicial” is an objective one: “The relevant question for 

determining prejudice is whether there is a reasonable possibility 

that the extraneous information influenced the verdict to the 

detriment of the defendant.” Id. Under this test, “a reviewing court 

cannot consider evidence of actual impact on specific jurors in the 

case.” Id. Instead, it must look solely to whether there was a 

“realistic possibility that the communication would influence the 

verdict of a typical juror.’” Wadle, 97 P.3d at 937.
21

¶ 42 In order to determine whether extraneous information created 

such a realistic possibility, the court may consider the following 

factors: (1) how the extraneous information relates to critical issues 

in the case; (2) how authoritative is the source consulted; (3) 

whether a juror initiated the search for the extraneous information; 

(4) whether the information obtained by one juror was brought to 

the attention of another juror; (5) whether the information was 

presented before the jury reached a unanimous verdict; and (6) 

whether the information would be likely to influence a typical juror 

to the detriment of the defendant. Harlan, 109 P.3d at 625. 

¶ 43 In sum, like any other juror, a lawyer-juror must refrain from 

engaging in an independent investigation into a legal or factual 

matter relevant to the case. See Clark, ¶ 222. But a lawyer-juror 

must also refrain from introducing any statements of law (even if 

from memory) that conflict with or are supplemental to the 

instructions of law provided by the trial court. If a defendant 

presents competent evidence, admissible under CRE 606(b), that a 

lawyer-juror introduced such a statement of law related to an issue 

that was before the jury, and that there is a realistic possibility that 
22

this information would influence a typical juror in reaching a 

verdict, the defendant is entitled to an evidentiary hearing. 

IV. Analysis

¶ 44 Newman contends that the trial court erroneously denied his 

motion for a new trial. He argues that, contrary to the findings of 

the trial court, his supporting affidavit sufficiently alleged that six of 

Juror M.O.’s statements constituted extraneous prejudicial 

information improperly before the jury. Accordingly, he argues not 

only that the court was permitted to consider the statements under 

CRE 606(b), but that Juror M.O.’s misconduct warranted a new 

trial. We address in turn each of Juror M.O.’s statements as 

presented in the affidavit and relied upon by Newman in this 

appeal. 

A. Statement on the Significance of Character Witnesses

¶ 45 Juror S.P.’s affidavit alleged that during deliberations, Juror 

M.O. produced a piece of paper with a definition written on it. She

recounted the incident as follows: 

On the morning of August 15, 2016, during 

deliberations and prior to reaching a verdict, 

the juror who works as a lawyer addressed the 

group. He said he had been thinking all 

weekend about the character witnesses not 
23

being asked certain questions about Mr. 

Newman’s personality. He said “I knew taking 

the bar would come in handy” and then pulled 

a piece of paper out of his pocket with a 

definition of law on it. It was something about 

character witnesses. I could not see what was 

written on the paper because I was sitting on 

the opposite side of the table. 

I do not recall the specific wording of the 

definition but it included what could and could 

not be asked of character witnesses. The 

lawyer did not provide us with the source of 

this information. Since he said taking the bar 

came in handy I assumed it was a legal 

definition. 

The lawyer read the definition off of the piece 

of paper. After reading the definition the 

lawyer told the group something to the effect 

of, Mr. Newman is a bad guy or they would 

have asked different questions and you should 

infer that from the lack of questions asked of 

the character witnesses. 

The parties do not dispute that the lawyer referred to in the affidavit 

was M.O. 

¶ 46 The People concede, and we agree, that the affidavit 

sufficiently alleged that Juror M.O. introduced extraneous 

information into deliberations under CRE 606(b). The affidavit 

unequivocally describes Juror M.O. presenting a legal definition. 

Indeed, the affidavit suggests that, rather than drawing from his 
24

background legal knowledge, Juror M.O. conducted outside 

research and shared the results of that research with other jurors.

2

And while Juror S.P. could not recall the precise definition that 

Juror M.O. offered, the affidavit nonetheless alleges that Juror M.O. 

shared a statement of law pertaining to the admissibility of 

character evidence. Moreover, as the statement was used to draw 

inferences as to Newman’s character, it was relevant to Newman’s 

credibility. See People v. Hall, 107 P.3d 1073, 1075 (Colo. App. 

2004) (“[C]haracter evidence may be defined as evidence that 

directly relates to the general credibility of the witness . . . .”

(quoting 28 Charles A. Wright & Victor J. Gold, Federal Practice and 

Procedure § 6113 (1993))). Given the nature of the case, Newman’s 

credibility was critical. Thus, the affidavit provided competent 

evidence that Juror M.O. introduced “legal content . . . learned from 

outside the record and relevant to the issues in a case.” Kendrick, 

252 P.3d at 1064.

 

2 To be sure, the allegation that Juror M.O. injected this definition 

into the jury’s deliberations is alone sufficient to allege the 

introduction of extraneous legal content; the fact that this legal 

definition was apparently the product of independent research 

rather than stated by Juror M.O. from memory merely compounds 

the misconduct. 
25

¶ 47 However, the People dispute that Juror M.O.’s statement, as 

described in the affidavit, was prejudicial. Specifically, the People 

cite to Holt for the proposition that the affidavit was insufficient to 

support such a finding because it did not describe Juror M.O.’s 

statement with more specificity. The People’s argument, however, 

misses the point. 

¶ 48 In Holt, the trial court conducted a hearing on the defendant’s 

request for a new trial. 266 P.3d at 443. In other words, Holt does 

not stand for the proposition that the affidavit and motion alone 

must proffer sufficient evidence to establish Newman’s right to a 

new trial. Rather, as noted above, Newman need only bring forth 

sufficient admissible evidence to demonstrate that he may be so 

entitled. By doing so, Newman is then entitled to a hearing at 

which he can further develop his claim. Here, the trial court denied 

Newman’s motion without a hearing, even though Newman

specifically requested that the trial court hold an evidentiary 

hearing on the motion. 

¶ 49 As noted, Newman asserts that Juror M.O. provided a 

definition of character evidence and used it to urge the jury to reject 

Newman’s credibility and conclude that he was a bad person. We 
26

conclude that this is competent evidence and that a typical juror 

may have been swayed by this extraneous information.3 Because 

Newman “has put forth competent evidence, in the form of an 

affidavit, which indicates prejudicial extraneous information may 

have been before the jury,” he is entitled to an evidentiary hearing. 

Clark, ¶ 239. At the evidentiary hearing, Newman should be given 

the opportunity to present evidence “regarding the source of the 

extraneous information, the manner of its acquisition, its content, 

and its presence and use in the jury room during deliberations.” 

Harlan, 109 P.3d at 625.

4 

¶ 50 On remand, the trial court cannot consider any evidence of 

Juror S.P.’s reaction to Juror M.O.’s statement, and instead must 

solely determine whether there was a “realistic possibility that the 

communication would influence the verdict of a typical juror.’”

Wadle, 97 P.3d at 937. Thus, we reject Newman’s argument that 

 

3 Of course, our inquiry is limited to the threshold question of 

whether Newman has presented enough evidence to be entitled to a 

hearing. The ultimate determination of whether there was 

extraneous prejudicial information introduced to the jury remains 

for the trial court to make upon the conclusion of the hearing. 

4 This necessarily means that Newman’s counsel should be provided 

the necessary information to contact M.O. in order to call him to 

testify at the hearing. 
27

we — and presumably the trial court — need not ask how a typical 

juror would have reacted, because we know how S.P. did react. 

This contention misunderstands the purpose of focusing on the 

typical juror. S.P.’s — or any other juror’s — testimony about 

specific reactions to this extraneous information is prohibited by 

CRE 606(b). Harlan, 109 P.3d at 625 (“[A] reviewing court cannot 

consider evidence of actual impact on specific jurors in the case.”). 

B. Statement on the Significance of a Buccal Swab

¶ 51 Juror S.P. described the following discussion regarding 

Newman’s prior buccal swab:

I am not certain if the discussion regarding Mr. 

Newman’s prior record began on Friday or 

Monday morning. On Monday however, it was 

discussed at length and another juror, [P.S.], 

commented that Mr. Newman had to have 

committed other felonies to get a buccal swab 

done. She presented this to the group as a 

fact. She told the group that it was likely to 

have been a prior sex offense. [Juror P.S.] told 

the group she had been on three other juries. 

The attorney said that [Juror P.S.] was correct. 

I tried to propose additional ways DNA would 

be entered into the system but the lawyer and 

[Juror P.S.] stated that I was wrong and it 

absolutely had to have been a felony. It was 

written on the board as a reason to convict. 
28

¶ 52 The affidavit indicates that Juror M.O. agreed with, and later 

reiterated, another juror’s conclusion that Newman “had to have 

committed other felonies to get a buccal swab done.” But the 

statement is not one of law. Nor is it the introduction of new 

factual information. Rather, it is a factual conclusion drawn from 

the evidence before the jury. Thus, the affidavit does not allege that 

Juror M.O. introduced any “legal content [or] specific factual 

information.” Kendrick, 252 P.3d at 1064. Nor does it suggest that 

Juror M.O. did anything more than permissibly apply his 

professional or general background to the record evidence. 

Accordingly, as to this statement, the affidavit did not provide 

competent evidence of extraneous prejudicial information. Id. As 

such, this statement is inadmissible and cannot be considered by 

the trial court. CRE 606(b). 

C. Statement on Prior Bad Acts Evidence

¶ 53 Juror S.P. further alleged as follows: 

The lawyer told the group that Mr. Newman 

was not asked about his sex life because those 

questions would have allowed for the district 

attorney to ask about all the prior things Mr. 

Newman was accused of or convicted of. 
29

¶ 54 This allegation presents a closer call. On the one hand, the 

statement does not explicitly state that Juror M.O. offered a specific 

statement of what the law was in this area, as opposed to simply 

drawing an inference regarding what the lack of evidence may 

mean. Seen in this way, Juror M.O.’s statement arguably does no 

more than describe his “mental processes” during deliberations. On 

the other hand, his statement appears to explain, albeit incorrectly,

rules of evidence concerning the admissibility of prior acts evidence. 

And, although the affidavit does not allege that Juror M.O. 

conducted outside research to obtain a specific rule or legal 

definition, as noted above, even a statement made from memory can 

introduce extraneous legal content if it is a statement of law that is 

inconsistent with or supplemental to the trial court’s instructions. 

¶ 55 Further, as alleged, this statement implicates Newman’s 

character. As our supreme court has recognized, character 

evidence can be properly used “to discredit the truthfulness of a 

defendant,” but is also capable of being improperly used “to prove 

the defendant committed the offense charged.” People v. Harding, 

104 P.3d 881, 887 (Colo. 2005), overruled on other grounds by 
30

Moore v. People, 2014 CO 8. Either way, the statement was related 

to an issue before the jury. 

¶ 56 In context, the lawyer-juror’s alleged statement may have been 

an expression of what the law is in this critical area. Thus, 

Newman has met the threshold to obtain an evidentiary hearing on 

this allegation.

D. Statement on Ineffective Assistance of Counsel and Attorney 

Misconduct 

¶ 57 Juror S.P. alleged that Juror M.O. offered the following 

reasoning to discount part of Newman’s testimony: 

During deliberations I asked the rest of the 

jury about Mr. Newman’s testimony that he 

had [the complaining witness’s] number in his 

phone. The attorney stated they don’t have the 

phone, it does not exist, Mr. Newman is a liar. 

He told the group that if they had the phone 

they would have brought it. The attorney told 

us that if they had the phone Mr. Newman 

could file against his attorneys for incompetent 

counsel and the attorneys could be disbarred. 

The attorney presented this to the group as if it 

was the law. 

¶ 58 The first part of Juror M.O.’s statement is not one of law. 

Rather, it is a reasonable inference that any juror could draw from 

the fact that the phone was not presented as evidence — i.e., that 
31

the phone messages did not exist and that Newman’s testimony was 

not credible. 

¶ 59 The second part of Juror M.O.’s statement concerning attorney 

misconduct is arguably one of law. But even if this statement

constituted legal content, it was not “relevant to the issues in [the]

case,” Kendrick, 252 P.3d at 1064, as the issue of whether 

Newman’s attorney was competent was not before the jury. See 

Holt, 266 P.3d at 445 (holding that a juror’s statement regarding the 

severity of the charge was not relevant to the issues in the case 

because the jury does not consider punishment when deliberating). 

Because the first part of the statement was neither legal content nor 

factual information, and the second part of the statement (to the 

extent it was legal content) was not relevant to the issues before the 

jury, this statement is also inadmissible under CRE 606(b). 

E. Statement That the Complaining Witness Did Not Have to 

Participate in the Trial 

¶ 60 As to the complaining witness’s credibility, Juror S.P. alleged 

that Juror M.O. made the following statements: 

At another point during deliberations the 

attorney told the group that [the complaining 

witness] did not have to be at trial. He said 

[she] had the power to drop the charges and 
32

never be contacted about this again. The 

attorney told us that [the complaining witness]

must be telling the truth since she is still 

coming to court five years later. 

The lawyer told us [the complaining witness]

could have walked away at any point in the 

last five years and this would have been let go.

He said if this did not happen [she] would have 

simply walked away. He told us that it was 

[the complaining witness’s] choice to come 

relive the event and experience it all over 

again. The lawyer told the group that by 

choosing to testify [the complaining witness]

placed herself in danger of perjury charges and 

jail time if she were not telling the truth. He 

said she would never take that risk if she was 

lying. The attorney was very sure [the 

complaining witness] did not have to continue 

with the case and could have walked away 

without any repercussion. 

¶ 61 The statements as recounted in the affidavit were not 

statements of law or factual information. Rather, Juror M.O. was 

simply offering his opinion as to why the jury ought to believe the 

complaining witness. To the extent his statements touched on the 

possibility of perjury charges, the affidavit does not indicate that he 

provided any sort of definition or explanation of perjury. Indeed, 

any lay juror could, in similar circumstances, opine that a witness 

should be believed because that witness would not likely perjure 

himself or herself; we cannot see how the fact that a lawyer-juror 
33

says it would give it any more weight. Thus, in our view, Juror 

M.O. was not introducing a statement of law, but was permissibly 

applying his professional or general knowledge to inform 

deliberations. See Kendrick, 252 P.3d at 1066; Holt, 266 P.3d at 

447. Thus, the affidavit lacks the necessary content to provide even 

a threshold showing of competent evidence that the information 

was prejudicial. Therefore, this statement is inadmissible. CRE 

606(b). 

F. Statement That a Non-Unanimous Verdict Would Result in a 

Mistrial 

¶ 62 Finally, Juror S.P. questioned what would happen if the jury 

did not reach a unanimous verdict. She alleged in her affidavit that

Juror M.O. offered the following answer: 

[Juror M.O.] told us that it would result in a 

hung jury and a mistrial. He told us that 

would require a new trial but that would never 

happen. He said [the complaining witness]

would never come back and testify again. He 

told us it would be too traumatic for her and 

we would be letting a rapist back out into the 

community. 

¶ 63 First, the affidavit does not allege that Juror M.O. suggested

that Newman legally could not be retried. Thus, in our view, his 

statement that a new trial would not occur was not a statement of 
34

law. And to the extent his comment about the consequences of not 

reaching a unanimous verdict — i.e., a hung jury and a mistrial —

could be considered a statement of law, it was not relevant to the 

elements of the charge or to any other issue before the jury. Thus, 

this statement, too, is inadmissible. CRE 606(b). 

V. Conclusion

¶ 64 The judgment of conviction is vacated. The case is remanded 

to the trial court with instructions to hold an evidentiary hearing 

regarding the allegations pertaining to Juror M.O.’s introduction of 

a statement of law concerning character evidence and his statement 

concerning the implication of Newman not having been asked about 

prior conduct. If, after the hearing, the trial court finds that Juror 

M.O. introduced extraneous legal content that was prejudicial to 

Newman, it shall grant the motion for new trial. If the trial court 

again denies the motion for new trial, it shall resentence Newman 

and enter a new judgment of conviction. 

JUDGE ROMÁN and JUDGE PAWAR concur.