COURT OF APPEALS 

DECISION 

DATED AND FILED

June 27, 2019 

Sheila T. Reiff 

Clerk of Court of Appeals 

 

NOTICE 

 This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2017AP1184-CR Cir. Ct. No. 2013CF3598

STATE OF WISCONSIN IN COURT OF APPEALS 

DISTRICT I 

STATE OF WISCONSIN, 

 PLAINTIFF-RESPONDENT, 

 V. 

MARWAN MAHAJNI, 

 DEFENDANT-APPELLANT. 

 APPEAL from a judgment and orders of the circuit court for 

Milwaukee County: TIMOTHY G. DUGAN and JEFFREY A. WAGNER, 

Judges. Orders reversed and cause remanded with directions. 

 Before Sherman, Blanchard, and Fitzpatrick, JJ. 

¶1 BLANCHARD, J. Marwan Mahajni appeals a judgment convicting 

him of kidnapping and second degree sexual assault following a jury trial, as well 

as a subsequent order denying a post-conviction motion for a new trial without 
No. 2017AP1184-CR 

2 

holding an evidentiary hearing.1 Mahajni makes the implied argument that he is 

entitled to an evidentiary hearing to give him an opportunity to prove that jurors 

received extraneous prejudicial information during deliberations, which would 

entitle him to a new trial. He bases this argument on affidavits from two jurors 

who aver that a bailiff told jurors during the period of jury deliberation that a 

deadlock on any count was not an option. 

¶2 We conclude that the circuit court erred in failing to grant the 

evidentiary hearing that Mahajni requested in a motion for reconsideration, 

because the juror affidavits constitute an allegation that at least one juror received 

extraneous prejudicial information and Mahajni is entitled to a new trial if this 

allegation is proven by clear and convincing evidence. Accordingly, we reverse 

the court’s denial of Mahajni’s motion for reconsideration and remand for an 

evidentiary hearing. 

BACKGROUND 

¶3 The State charged Mahajni with one count of kidnapping and five 

counts of second degree sexual assault. Following a trial in 2014, the jury found 

Mahajni guilty on the kidnapping count and on a single count of second degree 

sexual assault, and acquitted him on the other sexual assault counts. 

¶4 In 2017, Mahajni moved for a new trial based on the allegation that a 

bailiff shared extraneous prejudicial information with jurors between the time they 

were excused to deliberate and when they returned a verdict. In support, Mahajni 

 

1

 The Honorable Timothy G. Dugan presided at trial and entered the judgment of 

conviction. The Honorable Jeffrey A. Wagner addressed all post-conviction motions, including 

the reconsideration motion at issue in this appeal. 
No. 2017AP1184-CR 

3 

submitted the affidavit of a private investigator, who averred that four jurors had 

told her that during deliberations they had been informed, either directly by a 

bailiff or through the foreperson purporting to relay information received from the 

bailiff, that the jury was not permitted to deadlock. In other words, the bailiff 

allegedly told some jurors that the jury had no alternative but to reach unanimous 

verdicts of guilty or not guilty. Mahajni’s motion included a request for a 

“hearing,” presumably an evidentiary hearing. The circuit court denied the motion 

without holding an evidentiary hearing. 

¶5 Mahajni moved for reconsideration, repeating arguments made in the 

initial motion and again requesting an evidentiary hearing. Mahajni supported the 

reconsideration motion with two new affidavits.2 The new affidavits were sworn 

to by jurors Felicia Givens and Devonshra Thurman. Mahajni also attached 

documentation purporting to identify the last names of the two bailiffs who had 

been assigned to the court during deliberations (one for each day of deliberations). 

¶6 Both juror affidavits convey essentially the same allegation: a bailiff 

informed jurors sometime during jury deliberations, and without qualification, that 

the jury could not deadlock.3 By referring to statements made “during 

deliberations,” the strong implication of both affidavits is that the bailiff said this 

out of the hearing of the circuit judge, counsel, or the parties. 

 

2

 We refer to the private investigator’s affidavit in order to provide background, but we 

will now proceed to ignore its contents and address only the two juror affidavits submitted with 

the reconsideration motion. On appeal, Mahajni does not base any argument on the investigator’s 

affidavit. The State challenges the investigator’s affidavit on hearsay grounds, but we need not 

address that argument. 

3

 In pertinent part, Givens averred that a bailiff “told us that we had to find the defendant 

guilty or not guilty[;] we could not be a hung jury,” and Thurman averred that the foreperson told 

jurors, including Thurman, that the bailiff had said that the jury could not deadlock. 
No. 2017AP1184-CR 

4 

¶7 The circuit court denied the motion for reconsideration, without 

holding an evidentiary hearing. The court ruled that the juror affidavits and bailiff 

documentation did not provide sufficiently precise details, including how the 

bailiff’s information allegedly influenced the decisions of individual jurors to vote 

guilty. Mahajni appeals. 

DISCUSSION 

¶8 Mahajni argues that the circuit court erred in denying his motion for 

reconsideration of his motion for a new trial without holding an evidentiary 

hearing.4 He contends that the court misinterpreted WIS. STAT. § 906.06(2) (2017-

 

4

 Mahajni’s briefing on appeal only implicitly argues that the court erred in failing to 

hold an evidentiary hearing, but we proceed as if he makes this argument explicitly. Mahajni’s 

explicit request is that we reverse his conviction and grant his motion for a new trial. However, 

obviously implied in this argument is that Mahajni seeks, in the alternative, reversal of the order 

denying his motion for a new trial and remand with directions that the circuit court hold an 

evidentiary hearing, without our ordering a new trial. 

We deny Mahajni’s explicit request that we direct the circuit court to hold a new trial 

because it is for the circuit court, not this court, to determine, by clear and convincing evidence, 

whether extraneous prejudicial information reached the jury, meriting a new trial. State v. 

Broomfield, 223 Wis. 2d 465, 479, 589 N.W.2d 225 (1999) (before a new trial can be ordered, 

“circuit court must determine by clear, satisfactory, and convincing evidence that the juror made 

or heard” alleged statements of extraneous information); see also Manke v. Physicians Ins. Co. 

of Wis., 2006 WI App 50, ¶42 n.16, 289 Wis. 2d 750, 712 N.W.2d 40 (“A circuit court may 

conclude that an affidavit is sufficiently thorough to permit it to decide[,] without further 

proceedings[,]” that a new trial based on extraneous prejudicial information is merited.) 

(emphasis added). Here, the circuit court has not made such a determination, but instead 

concluded that the affidavits did not provide a legally sufficient allegation of the prejudicial effect 

the extraneous information had on the jury. We may not exercise the circuit court’s discretion in 

making the required factual inquiry. See id., ¶¶21, 48 (evaluating circuit court’s clear and 

convincing evidence determination under clearly erroneous standard). 

Turning to the relief that Mahajni implicitly requests, as we explain in the text, Mahajni 

argues that the circuit court applied erroneous standards in denying his post-conviction motion. 

Implicit is Mahajni’s contention that, even if we do not order a new trial, Mahajni is entitled to an 

evidentiary hearing based on these errors. Mahajni’s post-conviction motion included a request 

for an evidentiary hearing, and on appeal he acknowledges the standards required for obtaining 

such a hearing. We address and reject in the text all arguments that the State makes on appeal 

(continued) 
No. 2017AP1184-CR 

5 

18).5 As we discuss in more detail below, that rule of evidence identifies as 

incompetent certain categories of evidence and establishes that a circuit court may 

not rely on these incompetent categories of evidence to determine whether jurors 

were subjected to extraneous prejudicial information. More specifically, Mahajni 

argues that the court improperly construed § 906.06(2) to require Mahajni to 

provide competent evidence to prove that the jury was in fact prejudiced by 

extraneous information. Mahajni further argues that, under the correct standards, 

the juror affidavits are sufficiently specific to entitle him to a new trial if the 

affidavits’ averments are proven by clear and convincing evidence at an 

evidentiary hearing. We agree with Mahajni that the court erred in denying his 

motion without holding an evidentiary hearing to determine whether a bailiff 

informed any juror during deliberations that the jury could not deadlock. The 

court erroneously based its decision on two incorrect propositions: that Mahajni 

has to present greater factual detail about the alleged extraneous prejudicial 

information, and that he has to present proof of actual prejudice. Accordingly, we 

remand for further proceedings consistent with this opinion. 

¶9 We begin by explaining the legal standards that circuit courts are to 

apply at evidentiary hearings, as pertinent here, to determine if new trials are 

 

that could support the proposition that we should affirm denial of Mahajni’s motion without an 

evidentiary hearing. 

5

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. We quote WIS. STAT. § 906.06(2) below in note 8. 
No. 2017AP1184-CR 

6 

merited based on claims of extraneous information.6 We then turn to the standards 

used to determine whether an evidentiary hearing should be held. We begin with 

the substantive standards because an understanding of the substantive standards 

sets the stage for subsequent discussion about the requirements to obtain an 

evidentiary hearing. 

I. Legal Standards 

¶10 Before explaining the substantive standards, we briefly emphasize a 

point that is critical to all analysis that follows. A new trial is required when even 

one juror received information that was extraneous and prejudicial, regardless 

whether additional jurors received the information. See State v. Messelt, 185 

Wis. 2d 254, 277-78, 518 N.W.2d 232 (1994) (extraneous prejudicial information 

claim may be established by “[m]aterial prejudice on the part of even a single 

juror”); see also Parker v. Gladden, 385 U.S. 363, 365-66 (1966) (bailiff’s 

“unauthorized conduct” in speaking with jurors need influence only one juror to 

violate defendant’s confrontation and due process rights, because a defendant is 

“entitled to be tried by 12 ... impartial and unprejudiced jurors”).

 

6

 As we describe in the text, a circuit court may deny a motion for a new trial based on 

extraneous prejudicial information without holding an evidentiary hearing, based on the 

insufficiency of the motion. However, under other circumstances a court may grant such a 

motion without holding an evidentiary hearing. Specifically, a circuit court may determine that a 

hearing is not necessary because one or more affidavits in support of such a motion are 

sufficiently thorough to allow the court to conclude that “there is clear and convincing evidence 

of extraneous information that had a probable prejudicial effect on the hypothetical average 

juror.” See Manke, 289 Wis. 2d 750, ¶42 n.16. As noted, the circuit court here has not made any

determination regarding clear and convincing evidence, and we fail to see any basis to determine 

that the juror affidavits presented by Mahajni were sufficiently thorough to make such a 

determination without conducting a hearing. Given this, our focus is on the court’s decision to 

deny Mahajni’s reconsideration motion without a hearing. 
No. 2017AP1184-CR 

7 

A. Substantive Standards Applied At Evidentiary Hearing

¶11 At a hearing on a motion for a new trial based on a claim of 

extraneous prejudicial information, circuit courts evaluate evidence in a two-step 

process. See State v. Eison, 194 Wis. 2d 160, 172-73, 177, 533 N.W.2d 738 

(1995). 

¶12 Under the first step, the court determines whether any evidence

presented in support of the motion that comes from any juror (as opposed to 

coming from any non-juror witness) is competent under WIS. STAT. § 906.06(2). 

Under the second step, the court evaluates whether all competent juror evidence, 

considered along with all evidence not provided by jurors, entitles the defendant to 

a new trial. See Manke v. Physicians Ins. Co. of Wis., 2006 WI App 50, ¶20, 289 

Wis. 2d 750, 712 N.W.2d 40 (“‘This [second step] is not a requirement of 

[§ 906.06(2)], since that section deals only with the competency to testify and the 

admissibility of evidence.’”) (quoted source omitted, second alteration in 

original).7 We address these two substantive standard steps in turn. 

 1. Step One: Competency Under § 906.06(2) 

¶13 WISCONSIN STAT. § 906.06(2) defines what evidence is competent in 

this context.8 The statute generally prohibits jurors from testifying or making 

 

7

 This is a criminal case, but extraneous prejudicial information claims may be made in 

civil cases tried to the jury. See Casteneda v. Pederson, 185 Wis. 2d 199, 211, 518 N.W.2d 246 

(1994) (noting that civil litigants enjoy the same right to trial by an impartial jury as do criminal 

defendants). Standards governing motions for a new trial in this context are largely the same in 

both types of cases, including the requirement to make showings that justify the holding of an 

evidentiary hearing. See Manke, 289 Wis. 2d 750, ¶25-26 (civil case) (citing State v. Marhal, 

172 Wis. 2d 491, 497, 498 n.5, 493 N.W.2d 758 (Ct. App. 1992)). Where differences arise in the 

criminal and civil contexts, we apply criminal law standards. 

8

 WISCONSIN STAT. § 906.06(2) provides in pertinent part: 

(continued) 
No. 2017AP1184-CR 

8 

averments regarding “any matter or statement occurring during deliberations” or 

regarding a juror’s “mental processes” in connection with deliberations, including 

anything influencing a juror to “assent to or dissent from the verdict.” Sec. 

906.06(2). In contrast, a juror may offer testimony or averments regarding 

whether “extraneous prejudicial information was improperly brought to the jury’s 

attention or whether any outside influence was improperly brought to bear upon 

any juror.” Id. 

¶14 Our supreme court has interpreted WIS. STAT. § 906.06(2) to provide 

that, for juror-provided evidence to be “competent,” the proponent of such 

evidence must establish the following three elements: (1) the evidence concerns 

extraneous information, which is information that is “not of record and is not part 

of the general knowledge we expect jurors to possess”; (2) this information “was 

improperly brought to the jury’s attention”; and (3) the effect of the extraneous 

information on the jury was “potentially prejudicial.” Eison, 194 Wis. 2d at 172, 

174. Regarding the last element, the circuit court determines whether extraneous 

information is potentially prejudicial without considering any evidence about the 

actual effects on juror deliberations, because such evidence is categorically off 

 

(2) INQUIRY INTO VALIDITY OF VERDICT OR 

INDICTMENT. Upon an inquiry into the validity of a verdict ..., a 

juror may not testify as to any matter or statement occurring 

during the course of the jury’s deliberations or to the effect of 

anything upon the juror’s or any other juror’s mind or emotions 

as influencing the juror to assent to or dissent from the verdict ... 

or concerning the juror’s mental processes in connection 

therewith, except that a juror may testify on the question whether 

extraneous prejudicial information was improperly brought to 

the jury’s attention or whether any outside influence was 

improperly brought to bear upon any juror. Nor may the juror’s 

affidavit or evidence of any statement by the juror concerning a 

matter about which the juror would be precluded from testifying

be received. 
No. 2017AP1184-CR 

9 

limits: jurors are not competent to testify regarding the actual effects that 

extraneous information may have had on their deliberations. Manke, 289 Wis. 2d 

750, ¶¶34-35, 44-45; see also Eison, 194 Wis. 2d at 175-76 (rejecting argument 

that defendant must identify “results” that the extraneous information had on 

mental processes of jurors in deliberating). 

¶15 This three-element step of evaluating whether the evidence is 

competent is designed to screen out some claims at an early stage in order to 

protect jurors from harassment by losing parties, to foster “unhindered” 

deliberations, and to promote finality of litigation. See State v. Marhal, 172 

Wis. 2d 491, 495-96, 493 N.W.2d 758 (Ct. App. 1992) (WIS. STAT. § 906.06(2) 

reconciles “competing interests” by carving out an exception to the general rule 

against allowing the use of juror testimony to challenge verdicts for extraneous 

prejudicial information). 

 2. Step Two: Ground For New Trial 

¶16 Having ascertained whether any juror-provided evidence is 

competent, circuit courts turn to the second step of the extraneous prejudicial 

information analysis, under which the court considers the nature of any competent 

juror testimony and other evidence presented to determine if a new trial is 

warranted. See Manke, 289 Wis. 2d 750, ¶¶20-21, 26. This second step begins 

with a factual determination as to whether there is clear and convincing evidence 

that at least one juror did in fact receive extraneous information. See State v. 

Broomfield, 223 Wis. 2d 465, 479, 589 N.W.2d 225 (1999); Eison, 194 Wis. 2d at 

172-73, 177-78; Manke, 289 Wis. 2d 750, ¶¶34, 36, 46-48 (relying on 

“competent” juror evidence and disregarding “incompetent” juror evidence to 

address whether juror received extraneous information). If the court determines 
No. 2017AP1184-CR 

10 

that extraneous information reached any juror, “the court must then determine, as a 

matter of law,” whether there is a “reasonable possibility” that this information 

“would have had prejudicial effect upon a hypothetical average jury.” Eison, 194 

Wis. 2d at 177-78. If the court determines that there is a reasonable possibility of 

prejudice, the court orders a new trial, see Broomfield, 223 Wis. 2d at 479-80, 

because a defendant has a right to be tried by an impartial jury and to have counsel 

confront the information used to convict the defendant, see Eison, 194 Wis. 2d at 

173. 

B. Showing To Obtain Evidentiary Hearing; Standard Of Review 

¶17 Bearing in mind the two substantive steps of the above analysis used 

to determine whether to grant a new trial, we turn to the issue of how a circuit 

court determines whether an evidentiary hearing is merited. In order to be entitled 

to an evidentiary hearing, the defendant must make showings that the defendant 

could produce evidence at the hearing sufficient to satisfy both steps of the above 

analysis: to the extent the motion depends on juror-provided evidence, a showing 

that any such evidence offered is competent under WIS. STAT. § 906.06(2); and a 

showing that any allegations supported by competent juror and other evidence, if 

true, warrant a new trial. See Manke, 289 Wis. 2d 750, ¶25 (citing Marhal, 172 

Wis. 2d at 497, 498 n.5); see also id., ¶¶25-37 (referring to these showings as 

“preliminary showing[s]” of competency and of “substantive grounds” for a new 

trial). This is consistent with the rule that applies to all post-conviction motions, 

whether based on a claim of extraneous prejudicial information or not, that an 

evidentiary hearing “is required only when the movant states sufficient material 

facts that, if true, would entitle the defendant to relief.” See State v. Allen, 2004 

WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433. 
No. 2017AP1184-CR 

11 

¶18 The preliminary showings are required to obtain an evidentiary 

hearing in order to prevent fishing expeditions based on speculation and to prevent 

“dissatisfied litigants” from harassing jurors or upsetting the finality of litigation 

“propelled by the hope, rather than the likelihood, of discovering something with 

which to overturn the jury’s verdict.” Marhal, 172 Wis. 2d at 498.

¶19 We review de novo whether a defendant bringing a post-conviction 

motion based on extraneous prejudicial information makes the showings required 

to receive an evidentiary hearing. State v. Miller, 2009 WI App 111, ¶62, 320 

Wis. 2d 724, 772 N.W.2d 188 (citing Manke, 289 Wis. 2d 750, ¶19); see also

Allen, 274 Wis. 2d 568, ¶9 (de novo review of the sufficiency of post-conviction 

motions in general to merit evidentiary hearings). 

¶20 With that background, we review the circuit court’s decision to deny 

Mahajni’s reconsideration motion without first holding an evidentiary hearing. 

We now explain why we conclude that Mahajni made a showing of competent 

juror-provided evidence and a showing that a new trial is warranted if the 

allegations advanced by Mahajni are true, establishing the need for an evidentiary 

hearing. 

II. Mahajni’s Showing Of Competent Evidence 

¶21 Mahajni contends that the averments of the two juror affidavits here 

meet each of the three elements of the competency requirements of WIS. STAT.

§ 906.06(2). We reiterate the elements: “‘(1) that the juror[] testimony concerns 

extraneous information (rather than the deliberative process of the jurors), (2) that 

the extraneous information was improperly brought to the jury’s attention, and 

(3) that the extraneous information was potentially prejudicial.’” See Manke, 289 

Wis. 2d 750, ¶19 (quoting Eison, 194 Wis. 2d at 172).
No. 2017AP1184-CR 

12 

¶22 The State apparently concedes that the two juror affidavits meet the 

first element. This apparent concession is appropriate, because the information 

alleged to have been provided to jurors here is “neither of record nor in the general 

knowledge and accumulated life experiences [that] we expect jurors to possess.” 

See Manke, 289 Wis. 2d 750, ¶29 (citing, among other authority, State v. 

Shillcutt, 119 Wis. 2d 788, 794, 350 N.W.2d 686 (1984) (defining extraneous 

information as knowledge “from the outside”)). 

¶23 Turning to elements two and three, the State argues that the 

affidavits provide insufficiently specific facts on either element under Allen. That 

is, the State contends the affidavits fail to allege “who, what, where, when, why, 

and how” regarding Mahajni’s allegation that extraneous information was 

improperly brought to the jury’s attention and that the information was potentially 

prejudicial. See Allen, 274 Wis. 2d 568, ¶23 (post-conviction motions that allege 

the “five ‘w’s’ and one ‘h,’” that is, “who, what, where, when, why, and how” 

with sufficient “material factual objectivity ... will necessarily include sufficient 

material facts for reviewing courts to meaningfully assess a defendant’s claim”). 

We now explain why we reject the State’s Allen argument, concluding that the 

affidavits allege sufficient material facts for the circuit court to “meaningfully 

assess” elements two and three of the competency showing. We then address the 

State’s individual arguments on those topics. 

¶24 Using the terminology of Allen, we conclude that the affidavits 

allege as much of the basic “who, what, where, when, why, and how” needed to 

“meaningfully assess” whether Mahajni has made a showing of competency 

pursuant to WIS. STAT. § 906.06(2), as it has been interpreted in case law. The 

affidavits allege that jurors were told that the jury could not deadlock (the what), 

during deliberations (the when and where), and that this information was given to 
No. 2017AP1184-CR 

13 

at least one juror by the bailiff (the who and how). To address the why—that is, 

why the averments of the two jurors are relevant to Mahajni’s claim that the 

verdict was potentially prejudiced by extraneous information—we now turn to 

element three of a showing of competency, “potential prejudice.” 

¶25 The alleged extraneous information was, at a minimum, potentially 

prejudicial because it was “conceivably related to a central issue of the trial.” See

Broomfield, 223 Wis. 2d at 478; see also id. (“[T]he level of prejudice required 

[for competency purposes] ... is necessarily lower than prejudice needed to 

successfully impeach a verdict.”). As Mahajni pointed out in his motion to the 

circuit court and suggests again on appeal, if a bailiff told any juror, without 

qualification, that the jury could not deadlock on any count, this raises the 

potential for at least one juror to vote to convict on a count in order to join a 

majority vote, rather than based on the belief that the State proved guilt beyond a 

reasonable doubt. This potential is not merely “conceivably related to a central 

issue of the trial,” but clearly implicates the central issue, namely whether the 

State had proven Mahajni’s guilt beyond a reasonable doubt based on a unanimous 

verdict. See Kelley v. State, 51 Wis. 2d 641, 645-47, 187 N.W.2d 810 (1971) 

(noting Wisconsin Supreme Court’s long standing disapproval of “coercive 

element” of jury instructions used in other jurisdictions asking dissenting jurors to 

consider if their doubts are reasonable if their positions make no impression on the 

majority of the jury). 

¶26 To explain further, the alleged extraneous information that the jury 

could not deadlock goes to the heart of the jury’s obligation to process all evidence

and argument presented at trial and apply the jury instructions. The alleged 

extraneous information would have been the functional equivalent of a coercive 

jury instruction coming from the circuit court that conflicted with the court’s 
No. 2017AP1184-CR 

14 

earlier, proper instructions that the jury had to be unanimous in its verdicts and

convinced of guilt beyond a reasonable doubt as to any guilty verdict.9 See id.; 

State v. Dodson, 219 Wis. 2d 65, 87-88, 580 N.W.2d 181 (1998) (misleading and 

contradictory jury instructions are a sufficient basis for a new trial); see also State 

v. Ott, 111 Wis. 2d 691, 696, 331 N.W.2d 629 (Ct. App. 1983) (juror’s bringing 

dictionary definition into deliberations created sufficient prejudice to require a 

new trial because definition was broader than, and therefore conflicted with, 

pertinent jury instruction). We use the word coercive, because it would have 

effectively instructed jurors that they could not dissent from a final majority vote. 

See Weaver v. Thompson, 197 F.3d 359, 366 (9th Cir. 1999) (“In effect, the 

minority jurors were told that they had two choices: give in to the majority 

position, or manage the same coup pulled off by Juror # 8 in [the film] Twelve 

Angry Men” of convincing all other jurors to change from a pro-guilty position to 

a pro-not guilty position.). 

¶27 We now address the State’s arguments, beginning with element two, 

which is whether extraneous information was brought to the jury’s attention. On 

this topic, the State argues only that the affidavits lack details regarding the 

circumstances in which jurors allegedly were informed that they could not 

deadlock. We do not discern the State to argue that this information could, in the 

words of WIS. STAT. § 906.06(2), be “brought to the jury’s attention” in any way 

that was not “improper[],” or more specifically to argue that it could be “proper” 

for a bailiff to share this information with jurors. See § 906.06(2) (“except that a 

juror may testify on the question whether extraneous prejudicial information was 

 

9

 As would be expected, the circuit court properly gave the jury the standard instructions 

about the State’s burden of proof and the requirement of juror unanimity on each verdict. 
No. 2017AP1184-CR 

15 

improperly brought to the jury’s attention or whether any outside influence was 

improperly brought to bear upon any juror”) (emphasis added). 

¶28 As to the State’s insufficient detail argument, the State points out 

that neither affidavit: physically describes any bailiff; specifies the time during 

deliberations when a bailiff allegedly provided information; or identifies where 

jurors were physically located when the information was provided to any of them. 

However, the State fails to explain, and we fail to see, how the omission of any of 

these details individually, or all of them collectively, is significant. These are 

incidental details of the type that could be expected to be filled in at an evidentiary 

hearing. For example, whether such a conversation occurred in a courthouse 

hallway or instead in a jury room would not matter. And, there can be no doubt 

that there was at least the potential for communication of this type to have 

occurred between one or more bailiffs and one or more jurors after the court 

excused jurors to deliberate and before they returned to the courtroom with their 

verdicts. 

¶29 It is significant that the extraneous information alleged here does not 

relate to particular evidence or to an obscure issue at trial. The shared content of 

the affidavits is simple: jurors were informed by a bailiff that the circuit court 

would not be relieving jurors of their duties unless and until they returned 

unanimous verdicts on each count charged, with the obvious implication that 

jurors would take seriously a statement on this topic coming from a bailiff. See 

Parker, 385 U.S. at 365 (“[T]he official character of the bailiff—as an officer of 

the court as well as the State—beyond question carries great weight with a jury 

....”). And, as to timing, as long as this extraneous information was received by 

any juror before the jury settled on its verdicts, it would not matter when the bailiff 

made the alleged statement during the period of jury deliberation. 
No. 2017AP1184-CR 

16 

¶30 The State asserts that the affidavits “give no clue” as to what 

prompted the bailiff to provide extraneous information. Putting to the side the fact 

that Thurman averred a facially plausible motivation (that “some” “jurors” asked 

the bailiff whether the jury could deadlock on “some counts”), the State fails to 

explain how anyone’s perception of the bailiff’s motivation could matter in 

assessing whether the affidavits allege that a juror received extraneous prejudicial 

information. 

¶31 The State also appears to intend to argue that, because the Givens 

and Thurman affidavits diverge from each other in some respects regarding how 

the jury received the alleged extraneous information, neither provides sufficiently 

specific detail to merit an evidentiary hearing. The Givens affidavit avers that “the 

bailiff told us” this information, while the Thurman affidavit avers that “[t]he 

foreperson informed” the jury “that the bailiff said” this information. The State’s 

argument on this point is underdeveloped. But it is sufficient to note that, even if 

only one of these averments could be true to the exclusion of the other, an 

allegation would remain that at least one juror was provided with extraneous 

prejudicial information. As we already explained, this would be sufficient. See

Messelt, 185 Wis. 2d at 277-78; see also State v. Poh, 116 Wis. 2d 510, 521-22, 

343 N.W.2d 108 (1984) (juror may be competent to testify that extraneous 

information was brought to jury’s attention by someone from outside the jury or 

by one of the jurors themselves). 

¶32 Regarding “potential prejudice,” the State contends that the juror 

affidavits fail to provide “adequate, specific allegations.” The State does not 

dispute that jurors would have been potentially prejudiced by the extraneous 

information alleged here. Instead, the State essentially faults the affidavits for not 

clearly explaining how the averring jurors were in fact prejudiced by being told 
No. 2017AP1184-CR 

17 

they could not deadlock. But we have already explained that the question is never 

whether jurors were in fact prejudiced—not at the preliminary stage of 

determining whether to hold an evidentiary hearing, nor at such a hearing. That 

would require an inquiry into the substance of deliberations, a topic on which 

jurors are not competent to testify. See Manke, 289 Wis. 2d 750, ¶¶44-45; Eison, 

194 Wis. 2d at 175-76. Rather, the circuit court is to make a determination as to 

whether the hypothetical average jury would have been prejudiced, based on all 

pertinent, competent evidence under the legal standards we have described. See

Manke, 289 Wis. 2d 750, ¶45 (circuit court “determines the effect” of extraneous 

information “as a matter of law,” applying an “objective” standard to measure 

prejudice). For this reason, Givens’s averment regarding her opinion on the effect 

that the alleged extraneous information actually had on jurors is not pertinent to 

the analysis at any stage. See id., ¶¶34-36 (upholding circuit court decision to hold 

an evidentiary hearing based on certain averments in affidavit, disregarding 

incompetent averments that purported to describe how extraneous information 

actually affected deliberations). 

¶33 The State makes a difficult-to-track argument based on the fact that 

the circuit court read the verdicts aloud and then polled each juror. The State 

contends that, even assuming that jurors received the alleged extraneous 

information, the jurors demonstrated that they were not potentially prejudiced by 

the extraneous information when each answered yes to whether the verdicts read 

by the court were their verdicts. This argument ignores the possibility that a 

hypothetical average juror would have voted guilty on a count based in part on the 

juror’s belief that the court would not excuse the jury from its service before the 

jury reached unanimous verdicts on all counts. This hypothetical average juror 

would presumably have given an accurate yes answer to the polling question, but 
No. 2017AP1184-CR 

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the accurately read guilty verdict would nonetheless have been improperly 

influenced. 

¶34 Having established that Mahajni has made a showing of competency 

under WIS. STAT. § 906.06(2), we now address whether his motion for 

reconsideration makes the other showing sufficient to merit an evidentiary hearing 

by presenting facts that, if true, establish that he is entitled to a new trial. See

Manke, 289 Wis. 2d 750, ¶¶25-26. 

III. Mahajni’s Showing Of Evidence Sufficient To Merit A New Trial 

¶35 To make the required showing necessary to obtain an evidentiary 

hearing, a defendant must allege facts that, if true: (1) provide clear and 

convincing evidence that the jury received the extraneous information, and 

(2) establish that there is a reasonable possibility that the extraneous information 

would have had a prejudicial effect upon a hypothetical average juror. See

Broomfield, 223 Wis. 2d at 479 (citing Messelt, 185 Wis. 2d at 281); Eison, 198 

Wis. 2d at 177-78. In the criminal context, this requires showing that the State 

could not prove beyond a reasonable doubt that the extraneous information did not 

contribute to the guilty verdict. See Eison, 194 Wis. 2d at 178; Poh, 116 Wis. 2d 

at 529. This beyond-a-reasonable-doubt standard reflects concern over 

constitutional rights enjoyed by criminal defendants that include the right of an 

accused to be present for the offering of, and have representation to address, all 

information used to convict the accused. See Poh, 116 Wis. 2d at 525-26. 

¶36 Mahajni acknowledges that he cannot obtain an evidentiary hearing 

without making a showing alleging facts that entitle him to a new trial, based on 

the standards we have described. However, both parties fail to explicitly connect 

their arguments—focusing on competency—to the required showing that a new 
No. 2017AP1184-CR 

19 

trial is warranted. This deficiency in the briefing need not detain us for several 

reasons. 

¶37 First, as noted, we determine de novo whether Mahajni’s motion is 

sufficient to entitle him to an evidentiary hearing. Second, many of the same 

considerations pertinent to Mahajni’s showing that the juror affidavits here are 

competent as evidence are also pertinent to an assessment of the showing of 

whether a new trial is warranted, see Manke, 289 Wis. 2d 750, ¶¶25-26, 37, 

including our independent assessment of the prejudice of the objective risk of 

prejudice posed by the currently undisputed averments of the juror affidavits, see

Broomfield, 223 Wis. 2d at 480 (whether extraneous information actually received 

by a juror creates sufficient prejudice to require reversal “is a question of law 

which we review without deference to the circuit court”). 

¶38 For many of the same reasons that we conclude that the juror 

affidavits provide a sufficient showing of competency, we conclude that the 

affidavits provide a showing of facts that, if proven true, would warrant a new trial 

based on a claim of extraneous prejudicial information. In making this 

determination, we assess, as pertinent, “such factors as the nature of the 

extraneous information and the circumstances under which it was brought to the 

jury’s attention; the nature of the state’s case; the defense presented at trial; and 

the connection between the extraneous information and a material issue in the 

case.” See Poh, 116 Wis. 2d at 530. As we now discuss, given the nature of the 

particular alleged extraneous prejudicial information here, there is no reason to 

consider aspects of the State’s case or the defense presented at trial. 

¶39 To begin, the same averments that we deem sufficient to show that 

the alleged extraneous information was brought before the jury’s attention as part 
No. 2017AP1184-CR 

20 

of our competency showing analysis would, if true, allow the circuit court to 

determine that there is clear and convincing evidence that a juror heard the 

extraneous information. 

¶40 Given that conclusion, we further conclude that if at least one juror 

was told that the jury could not deadlock, this created, at a minimum, a reasonable 

possibility that the extraneous information had a prejudicial effect. That is, this 

information could have this effect on a hypothetical average juror and the State 

provides no good reason for us to conclude otherwise. Therefore, there is at least 

a reasonable doubt whether the alleged extraneous information “‘contribute[d] to 

the verdict obtained’” against Mahajni. See Poh, 116 Wis. 2d at 529 (quoted 

source omitted). We reach this conclusion for the same reasons that support our 

conclusion, explained above, that this information created the potential prejudice 

required for the competency showing. As we have explained, the alleged message 

that the jury could not deadlock related to Mahajni’s right to be convicted only 

upon a unanimous verdict of guilt beyond a reasonable doubt. We fail to see how 

the specifics of the evidence or arguments presented by the parties at trial have any 

bearing on the possibly prejudicial effect on a hypothetical average juror of the 

alleged cannot-deadlock statement of the bailiff. 

¶41 In sum, we conclude that Mahajni has made sufficient showings to 

entitle him to an evidentiary hearing on his claim that the guilty verdicts are 

invalid because the jury was prejudiced by extraneous information. 

¶42 Accordingly, we remand to the circuit court to conduct an 

evidentiary hearing consistent with this opinion. Both sides will have the 

opportunity to present any relevant evidence, including any juror testimony that 

the circuit court deems is competent under WIS. STAT. § 906.06(2). The court, not 
No. 2017AP1184-CR 

21 

Mahajni’s counsel nor counsel for the State, should conduct any examination of 

any jurors called by either side, though counsel for both parties may suggest 

appropriate questions. See After Hour Welding, Inc. v. Laneil Mgmt. Co., 108 

Wis. 2d 734, 743, 324 N.W.2d 686 (1982). The court will determine if there is 

clear and convincing evidence that any juror received extraneous information. See

Broomfield, 223 Wis. 2d at 479; Eison, 194 Wis. 2d at 173. If so, the court 

should consider whether the facts proven at the hearing created a reasonable 

possibility, as a matter of law, that the information would have had a prejudicial 

effect on a hypothetical average jury in these circumstances. See Eison 194 Wis. 

2d at 177-78. We repeat that if the court reaches the prejudice determination 

stage, the State bears the burden of proving beyond a reasonable doubt that 

extraneous information actually received by any juror did not contribute to the 

jury’s unanimous guilty verdicts. See id. at 178. 

CONCLUSION 

¶43 For the above reasons, we remand this case to the circuit court for 

further proceedings consistent with this opinion. 

By the Court.—Orders reversed and cause remanded with directions. 

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