IN THE SUPREME COURT OF IOWA

No. 17–0085

Filed June 7, 2019

STATE OF IOWA,

Appellee,

vs.

LEE SAMUEL CHRISTENSEN,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Emmet County, David A. 

Lester, Judge.

Defendant appeals from a district court judgment of second-degree 

murder. DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED.

Leon F. Spies of Spies, Pavelich & Foley, Iowa City, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Kelli Huser (until 

withdrawal), Kevin Cmelik, and Coleman McAllister, Assistant Attorneys 

General, and Doug Hansen, County Attorney, for appellee.
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APPEL, Justice.

In this case, Lee Christensen challenges his conviction of seconddegree murder following a jury trial. After the trial, Christensen moved for 

a new trial based upon (1) the refusal of the trial court to disqualify a juror 

who allegedly made out-of-court statements regarding the defendant’s 

guilt, (2) prosecutorial misconduct related to allegedly improper testimony 

from two witnesses for the State, and (3) misconduct and bias related to 

extraneous information reaching the jury about a possible riot if a certain

verdict was not returned. The district court denied the motions for a new 

trial, entered judgment, and sentenced Christensen. Christensen 

appealed.

We transferred the case to the court of appeals. The court of appeals 

reversed, holding Christensen was entitled to a new trial as a result of 

juror misconduct and bias. For the reasons expressed below, we vacate 

the court of appeals decision and affirm the district court judgment.

I. Factual and Procedural Background.

A. Introduction. Thomas Bortvit was dating Christensen’s former 

girlfriend. Bortvit and Christensen both lived in Estherville, Iowa. After 

Bortvit was reported missing from work, a community search was 

undertaken in an effort to find him. As part of its investigation, law 

enforcement wanted to speak with Christensen. After law enforcement 

contacted the Christensen family about a potential interview, 

Christensen’s mother asked him if he knew Bortvit’s whereabouts, became 

suspicious, and confronted her son. Christensen ultimately told his father 

that he had killed Bortvit. Christensen provided his father with 

information that led to the discovery of Bortvit’s body in a remote location.

The State charged Christensen, an Estherville high school student, 

with murder and other lesser included offenses. He pled not guilty. The 
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matter proceeded to jury trial in Estherville. The jury found him guilty of 

second-degree murder.

Christensen filed a posttrial motion attacking the verdict. He 

claimed the district court erred in refusing to grant a midtrial motion to 

disqualify a juror for cause. He further asserted the verdict was tainted 

because of juror misconduct. He also claimed prosecutorial misconduct 

associated with two witnesses’ testimony required a new trial. The district 

court overruled the motion for a new trial, entered judgment, and 

sentenced Christensen. Christensen appealed.

B. Selection of the Jury. Before the jury trial began, the parties 

engaged in voir dire of the jury venire. The district court began by asking 

the jurors three questions: (1) whether they had heard about the case from 

the media, (2) whether they had heard about the case from sources besides 

the media, and (3) whether they had formed an opinion about the case. 

Many jurors answered affirmatively to one or more of the questions.

Counsel for the parties then conducted individual voir dire outside 

the presence of the other venire members. The voir dire process revealed 

that the events surrounding Bortvit’s death were the subject of extensive 

discussion in the Estherville community. Many prospective jurors knew 

members of the Christensen family, the Bortvit family, or both. In 

addition, many prospective jurors further explained their knowledge about 

the case from the media and from other sources, including various 

Facebook postings.

A number of jurors believed they could not fairly judge the case 

because they had already formed opinions about the matter. Most often, 

these jurors believed Christensen was guilty. When asked if they could be 

fair in the proceedings, a number said they could not. Of the sixty 

prospective jurors, the district court disqualified twenty-four for cause.
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During voir dire, the lawyers and prospective jurors recognized the 

emotional character of the case. One prospective juror stated, “I know that 

sentiments run high.” Another remarked, “[I]t is so traumatic that this 

has happened. And whether or not he is guilty, everybody involved has 

been hurt . . . .” A third potential juror stopped going out for coffee because 

“[it was] too disturbing to [the juror] to listen to other people . . . 

disparagingly talk about individuals.” A fourth potential juror when asked 

whether they were well suited to be a juror explained, “I just think I’m 

going to need a tissue a lot.”

During voir dire of the entire panel, Christensen’s attorney asked 

the jury if anyone had “difficulty with the notion that Lee Christensen 

doesn’t have to prove his innocence, doesn’t have to testify, that you can’t 

hold it against him.” No one responded in the affirmative.

At the close of jury selection, the district court described how the 

trial would proceed. The district court stated that after the close of the 

State’s case, Christensen could present evidence “if he chooses to.” The 

district court advised the jury, “[Christensen is] not required to [present 

evidence]. As you’ve been told, he’s presumed innocent and the burden 

rests with the state.”

C. Instructions of the District Court Related to Extraneous 

Communications. After the petit jury had been selected, the district court 

admonished the jury to avoid extraneous communication with anyone 

regarding the trial. Specifically, the district court instructed the jury,

[Y]ou are not to converse among yourselves or with anyone 

else on any subject connected with this case. . . . If anyone 

should attempt to discuss this case with you or in your 

presence, walk away and do not listen. However, if anyone 

should persist in talking to you or in your presence, report it 

immediately . . . .

Further, the district court told the jury,
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[Y]ou are admonished not to listen to, view, or read any form 

of media while this case is in progress. . . . This includes . . . 

the full gamut of social media, the internet, cell phone 

communications, Instagram, Twitter. Just for the next few 

days, I need to have you disconnect from that if you’re involved 

at all.

D. Overview of Evidence Adduced at Christensen’s Trial. On 

June 6, 2015, Bortvit was working in the meat department at a Fareway 

store in Estherville. That afternoon Christensen was seen at the Fareway 

meat counter. His truck was also spotted in the Fareway parking lot. 

Although his family was not going to be home that evening, Christensen 

bought some ground beef, which he put in the freezer when he returned 

home. Bortvit left the Fareway store for his break at about 4:00 p.m.

Bortvit’s girlfriend, Cayley Fehr, was out of town but exchanged text 

messages with Bortvit during the afternoon. Bortvit told Fehr in a text 

message that he was with Christensen and that Christensen had asked for 

a ride because his truck had broken down. Fehr had dated Christensen 

in the past and knew of the antipathy Bortvit had toward Christensen. 

Later in the day, Fehr received a text message from Bortvit’s phone stating 

that he no longer wanted to date or see Fehr and that they should see 

other people. Fehr subsequently received a text message from Christensen 

stating he had killed Bortvit.

Christensen arrived home at approximately 5:00 or 5:30 p.m. 

wearing a soiled T-shirt and jeans. He and his sister went downtown for 

a sandwich. Upon returning home, Christensen watched TV but then 

abruptly went upstairs.

Late that evening, Bortvit’s friends discovered his car parked and 

locked in a residential area of Estherville. Police and community members

began to look for Bortvit.
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The next day, Christensen and his mother were driving to Sioux 

Falls to catch a flight to Arizona so that Christensen could attend a crosscountry sports camp. She learned on Facebook that Bortvit was missing. 

When she told Christensen of the news, he sat quietly. That same day, 

Christensen’s father participated in the search for Bortvit.

After law enforcement learned that Bortvit had been seen talking to 

Christensen at Fareway, they went to Christensen’s home and told his 

sister they wanted to talk to him. When Christensen and his mother 

arrived in Arizona, his mother received a text message indicating the police 

wanted to talk to her son. After a confrontation, Christensen told his 

mother that he and Bortvit had gotten into a fight, that he got scared, and 

that he hit Bortvit with a rock. Thereafter, Christensen called his father 

and told him that he knew where Bortvit’s body was. Christensen’s father 

told police that Christensen had killed Bortvit. Using directions from 

Christensen, police drove to a place outside of town where Bortvit’s body 

was located in a pasture.

A search warrant executed at the Christensen home produced a .45 

caliber pistol, ammunition, clothing, and Bortvit’s wallet in Christensen’s 

room. In addition, investigators found bloodstained boots in the lower 

level of the residence. A search of Christensen’s grandfather’s farm 

produced three .45 caliber cartridge cases and three slugs. The trunk of 

Bortvit’s car contained clothing and other items covered with blood.

An autopsy revealed that Bortvit died from multiple gunshots and 

that his body exhibited bruising and abrasions. A projectile retrieved from 

Bortvit’s body was traced to the .45 caliber pistol found in Christensen’s 

room. Testing of the pistol revealed Bortvit’s, but not Christensen’s, DNA 

on the grip of the gun. Examiners did not test the gun for blood or other 

biological sources of DNA.
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The jury received the case on June 30, 2016, and deliberated into 

the evening without reaching a verdict. The jury returned to deliberate on 

July 1. That morning, the jurors delivered a note to the district court 

indicating they were “stuck between two verdicts and need[ed] to know 

what [their] options [we]re.” The district court replied that the jurors 

“should continue to deliberate if [they] believe it would be productive in 

reaching a unanimous verdict.” Later on the afternoon of July 1, the jurors 

returned a verdict of second-degree murder.

E. Issue of Juror Disqualification. During the trial, a member of 

the news media received a note stating that “there is a jury member telling 

people the young man is guilty and . . . she is sticking to it.” The note also 

identified juror K.B. by a phonetic spelling of the juror’s name. The 

member of the news media provided the note to the district court, and law 

enforcement conducted an investigation. The investigation revealed an 

employee of a local café heard a patron state that a juror, while at a family 

gathering, “kept on talking about the trial and that Lee Christensen was 

guilty and was going to find him guilty no matter what.”

Law enforcement prepared an investigative report and the café 

employee signed a written statement describing the events. These 

documents were admitted into evidence as court exhibits. No testimony 

was obtained from the employee who provided the written statement nor 

from the person in the café who was overheard stating the juror had made 

up her mind on the question of Christensen’s guilt.

The district court summoned juror K.B. into chambers. The court 

conducted an examination of the juror without objections of either party. 

When asked whether she had spoken to anyone about the case, the juror 

stated, “I don’t believe I did. I think I said I was a juror maybe, you know, 

or they knew I was a juror.” When asked whether she had expressed an 
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opinion about Christensen’s guilt, she said she did not because she did 

not know. When pressed whether she made any statements about 

Christensen’s guilt, she stated, “I don’t believe I did. I don’t think I ever 

said anything about his guilt or innocence.” When asked if she was 

certain, the juror responded, “I’m trying to think. I don’t remember making 

any statements about the guilt or innocence because I do not know.” 

Christensen moved to remove the juror. The district court denied the 

motion.

Christensen again raised the issue of juror disqualification in a 

motion for new trial. The district court denied the motion, declaring the 

ruling, among others, was “consistent with and supported by existing Iowa 

law, and, more importantly, neither prejudiced Christensen nor violated 

his rights to a fair trial and due process of law under the constitutions of 

the United States and the State of Iowa.”

F. Overview of Alleged Prosecutorial Misconduct.

1. Presumption of innocence/burden of proof. During the trial, the 

State called criminalist Tara Scott as a witness. During her examination, 

Scott testified that DNA from Bortvit was detected on the grip of the 

handgun asserted to be the weapon used to kill him. She also testified 

that the handgun was not screened for blood and that forensic testing was 

not conducted to determine if the source of the DNA was Bortvit’s skin or 

perspiration (which might suggest Bortvit at one point held the gun). 

Further, on cross-examination, Scott testified that scrapings found 

underneath Bortvit’s fingernails were not tested because Scott had been 

told that “no struggle was indicated.”

On redirect, the prosecution asked Scott if the physical evidence was 

available for testing by others. Scott testified that it was. Christensen 

objected and asked to be heard outside the presence of the jury. Outside 
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the jury’s presence, Christensen objected to the question and answer 

which “inferred that the defendant has not taken steps to prove his own 

innocence.” Christensen argued the testimony violated the district court’s 

ruling in a motion in limine and constituted “a direct comment on the 

defendant’s presumption of innocence and the burden of proof in this 

case.” In light of the statement, Christensen said that the court could not 

“unring the bell.” He moved for a mistrial. The State responded that the 

questioning did not cross the line, that the answer was not clear, and in 

any event, that a curative instruction would be sufficient to cure any error.

The district court concluded that the questioning did not violate the 

motion in limine but did have the implication that the defendant has an 

obligation to prove his innocence. This, the court said, was improper. The 

court determined that rather than grant a mistrial, it would provide the 

jury with a curative instruction.

When the jury returned to the courtroom, the district court told the 

jury:

There was . . . a question by [the prosecution] to the effect that 

[items of evidence] were available for someone else to test 

them; is that right? And the answer was yes. At that time 

there was the objection made. I will tell you now that line of 

questioning was improper because in my opinion that 

reversed the roles that have been clearly stated to you several 

times now by suggesting that the defendant somehow has an 

obligation to prove his innocence. We’ve told you many, many 

times, including in our preliminary instructions that that is 

not the case. So, at this point in time, I am directing you to 

disregard that line of questioning and disregard those answers 

because, again, those were improper. Understood? 

Everybody please acknowledge. I’ll acknowledge that all 

members of the jury have confirmed their understanding.

2. False testimony. The State also called DCI investigator Peter 

Wagner as a witness. Wagner testified he used a metal detector to search 

for shell casings on the Christensen farm to determine where Bortvit’s fatal 
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injuries were inflicted. Wagner offered inconsistent testimony on crossexamination as to whether a metal detector had, in fact, been used. 

Wagner acknowledged that he stated in a pretrial deposition that he was 

unsure whether a metal detector was used. On redirect, however, Wagner 

claimed that he had spoken with another crime scene investigator, Keri 

Davis, during a lunch recess and that she told him a metal detector had, 

in fact, been used.

After the redirect examination, Christensen’s counsel contacted 

Davis, who confirmed she had talked with Wagner but told him that a 

metal detector was not used at the scene because the middle rod of the 

detector was missing. Christensen’s counsel moved for a mistrial, 

asserting the State had introduced false testimony.

The district court had Davis testify by phone in chambers. She 

confirmed what defense counsel had told the court, namely, that the metal 

detector was not used, that she had not told Wagner the metal detector 

was used, and that she had not told Wagner her deposition testimony to 

that effect was incorrect.

The district court did not grant Christensen’s motion for mistrial. 

Yet, the district court was plainly concerned. In chambers outside the 

presence of the jury, the district court stated that it did not find Wagner 

“intentionally falsif[ied]” his testimony but that it “borders on reckless 

because it strictly was an opinion that he reached based on his discussions 

with [Davis].” The district court advised Wagner that “[he] came very close 

to having recklessly offered false testimony here” and that he should be 

“very careful” when he phrased his answers to questions.

When the jury returned to the courtroom, the district court 

addressed the question of Wagner’s testimony. The district court noted 

that Wagner had provided testimony concerning statements attributed to 
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Keri Davis, a fellow investigator at the scene, which Wagner attributed to 

her from a conversation between the two of them made over the lunch 

recess. The district court then stated,

As those statements currently are in the record, I believe they 

could easily be construed by you as somewhat misleading, 

and so at my request and at my direction, the state is going to 

recall Mr. Wagner to further clarify and explain that 

testimony.

Pursuant to the court’s instructions, Wagner was recalled as a 

witness. Wagner testified that Davis had told him the metal detector was 

broken at the scene. Because the broken metal detector was at the scene, 

Wagner testified he assumed that Davis remembered him using it but she 

did not say that in the conversation. Yet, Wagner insisted that he, in fact, 

used the metal detector at the scene although its extension piece was 

missing.

Christensen raised the question of prosecutorial misconduct in his 

motion for a new trial. The district court denied the motion.

G. Jury Questions During Deliberations. After the jury 

commenced deliberations on June 30, the jury asked the district court for 

clarification of the court’s instructions. Specifically, the jury asked, “Could 

we have further instructions on malice aforethought?” The parties agreed 

the proper response to this question by the district court should simply be 

to instruct the jury to follow the instructions previously given.

On July 1, the jury sent a second note stating, “We are stuck 

between two verdicts and need to know what our options are.” With the 

agreement of the parties, the district court responded they should 

continue to deliberate if they believed it would be productive in reaching a 

unanimous verdict.
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H. Motion for a New Trial Based on Jury Misconduct and Bias.

1. Introduction. After the jury returned its verdict, Christensen 

learned about a Facebook post by “E’ville Amy” made public while the case 

was still before the jury. In order to understand the context, we reproduce 

the entirety of the Facebook post in the record:

There is a lot of anger expressed on this page at the delay in 

verdict and the possible reasons for the delay. I was told a 

couple of times at downtown market tonight that there’s 

rumors of a possible riot if it’s not a verdict of guilty: first 

degree murder.

I don’t know if the rumors have any substance but I want to 

use this platform you have grown around my reporting here 

to say: please. do. not. do. this. This community can not 

sustain a riot right now. (To be clear, there’s never a good 

time to riot. Peaceful demonstration against injustice ~ yes. 

That’s an inalienable right as an American. But how often 

have these things become anything but peaceful in our age?)

It won’t return Thomas Bortvit to us. It won’t bring the clock 

back to June 5 before the chain of events that caused the 

shooting. It won’t change the fact that another son of our 

community will go away for a long time. You may in a certain 

scenario believe it’s not long enough, but who can take a 

stopwatch to the pain of loss–of a life and of what could have 

been.

If you think some might consider rioting, use your influence 

to stop them.

It won’t bring Thomas back. Alternatively, from what I’ve 

observed, being kind to one another will let a little sliver of his 

spirit shine through, if just for a moment.

We have to live here as family and community for years to 

come. The only way I can see for the ripped apart places to be 

whole again is love, peace, compassion, kindness, and 

understanding.

Christensen moved for a poll of the jury to determine whether the 

jury verdict might have been tainted by exposure to the Facebook posting 

or other outside influences. The district court granted the motion. The 
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district court held proceedings to poll the jury on October 18, 2018, more 

than three months after the jury rendered its verdict.

2. Evidence adduced at jury poll. During the poll, each juror was 

asked whether they heard or saw any comments in the news media, from 

social media like Facebook, or from friends in the community that there 

might be some sort of riot or violence if Christensen was not found guilty 

of a certain offense. They were also asked whether they heard any 

discussion by other jurors about a potential riot. Finally, if the answer 

was yes, the jurors were asked when they heard the discussion or 

commentary.

The first juror polled, S.G., when asked whether she heard before 

the jury reached its verdict of a threat of some sort of riot or violence or 

some kind of public disturbance if Christensen was not found guilty of 

something, testified, “No, sir, I didn’t hear it before we reached our verdict, 

no.” When asked if other jurors made comments along those lines, S.G. 

stated, “Not that I can recall, no.” When pressed, S.G. again stated, “I 

don’t think that it was mentioned before we reached our verdict that I know 

of.” When asked if there was a possibility that such a statement was made 

by another juror before the verdict was rendered, S.G. testified, “I’m going 

to say no, there wasn’t any that I -- no, not even a possibility in my mind.”

The second juror, B.W., testified that he personally did not see or 

hear anything related to violence outside the jury room but that “[he] did 

hear in the jury room that some people had seen it on Facebook.” When 

asked what specifically came up, B.W. stated, “[T]here were some threats 

against the jury depending on what -- whatever decision was made” and 

that jurors “just said that there are people threatening the jury.” B.W. 

stated the statements were made by two female jurors. When asked at 

what point in the proceedings the statements were made, B.W. responded,
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I would say it wasn’t part of our proceedings at all, you know, 

as far as the decision we reached, but it was said after that 

basically hey, could we get somebody to walk us to our 

vehicles because some of the jurors were feeling like there 

was, you know, obviously tension in the courtroom, but also 

that they had seen some things on Facebook.

Further, in response to a question about whether the threats concerned a 

particular verdict, B.W. replied,

That’s a really good question. I don’t think it was dependent 

on what specific decision was made by the jury, just that there 

were people on both sides of the issue about whatever the 

decision would be made, and so that had an impact on, you 

know, the jury feeling safe.

The third juror, M.S., testified to a lack of knowledge about any 

possible threat of violence “until after the decision was made.” According 

to M.S., she learned of the threat of violence as an explanation for why the 

jury was assisted out of the courthouse. M.S. recalled, however, that a 

comment in the jury room “had been mentioned a few days earlier.” M.S. 

recalled that “the person talked to the judge about it.” When the court 

advised M.S. that it did not remember such a conversation, the juror 

responded, “[M]aybe we just discussed that maybe we should.” M.S. did 

not remember who the juror was, but testified it was a female juror who 

“had been told that it was all over Facebook” and who said “[s]omething to 

the effect that her granddaughter had read it on Facebook.” When asked 

if the comment was made at the conclusion of the evidence, while the jury 

was deliberating, or before that time, the juror responded, “before that 

time” and during the course of the trial.

The fourth juror, K.K., testified that she had heard “there had been 

talk about a riot if [Christensen] wasn’t found guilty.” When asked where 

she heard that, she stated, “I just heard it somewhere. I don’t know 

where.” She also stated that at the time, she thought it “sounded 

ridiculous and that was it.” She indicated she heard the comment 
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sometime during the trial. She testified that she heard it out in the public 

somewhere, that the comment was not directed at her, and that she did 

not share what she heard with the jury. When asked if she heard other 

members of the jury talking about something similar, she responded, “Not 

that I recall.”

The fifth juror, T.L., testified that she did not hear of a threat of

violence outside the jury room but that one of the other jurors made a 

comment that “they heard that if [the jury] didn’t vote for first degree 

murder that there was going to be -- people were going to be mad or be 

outside the courthouse, something to that effect.” She did not remember 

when the comment was made or how many persons heard the comment. 

She said it was “fairly dismissed.”

The sixth juror, J.A., testified that she had not heard of the threat 

of violence outside the jury room but that it was brought up by a jury 

member. According to J.A., a juror stated that “someone had told them 

that if it wasn’t first degree that there would be a riot.” J.A. recalled the 

comment was made “after we had made our verdict” but before the verdict 

was announced in the courtroom.

The seventh juror, K.B., testified that she had not heard of a threat 

of violence and that she did not remember any such discussion by the 

jury.

The eighth juror, A.F., testified that she had not heard of the threat 

of violence outside the jury room but recalled some discussion after the 

decision had been made and announced in the courtroom. She recalled, 

“I think somebody said something about a post on Facebook.” The juror 

recalled that the commenting juror received the information about 

Facebook from someone else. She believed that the sheriff’s office 
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personnel escorted the jurors to their cars because of what the juror had 

said or heard.

The ninth juror and jury foreperson, G.S., did not hear of any threat 

of violence outside the jury room. He did recall other jurors stating that 

they had heard something of that nature. He did not remember if the 

concern over safety occurred before the verdict or after the verdict, “but 

the concern was the safety of the jurors after the trial was over.” G.S. 

testified, “I took a survey or a vote to see who was worried about their 

safety, and most people raised their hands.” When asked whether the 

source of the concern was due to a threat or something else coming from 

outside the courtroom, or instead was based on the emotional nature of 

the proceeding, G.S. stated, “I would say the emotional, yeah. It was highly 

charged. There was a lot of emotional pressure in the jury room, as one 

might expect, and that was bothersome.”

The tenth juror, R.D., testified that she did not hear of a threat of 

violence outside the jury room. She also did not remember any discussion 

of a threat of violence inside the jury room.

The eleventh juror, M.H., testified that she did not hear of any threat 

of violence outside the jury room, but remembers a comment in the jury 

room that “there might be, like, a possible riot at the courthouse.” She 

testified that the comment was made on Friday prior to the jury resuming 

deliberations. M.H. recalled that the juror heard about the threat in a 

telephone conversation, that the source of the information was a family 

member, and that the juror’s comment about a possible riot occurred on 

a day before the jury returned to the courthouse to deliberate.

The twelfth juror, T.J., testified she did not hear outside the jury 

room about a riot or some sort of public disturbance if Christensen was 

not found guilty of something. She did recall such a comment and 
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discussion by the jury but only after the verdict was announced. She 

testified that juror A.F. was very emotional, was crying quite a bit, and 

stated that “she had heard that somebody -- that there was a possible --

going to be a riot.” T.J. stated, “[T]hat’s all that was said.” As a result, 

T.J. testified the jury asked to have deputies walk them out of the 

courthouse.

At the close of the polling of the jurors, the district court made a 

statement on the record. The district court said statements were made to 

the court after trial that the

jurors, based on their belief that this obviously was an 

emotionally charged case from what they had seen in the 

courtroom, their concerns over all of the family members and 

the public that had been here during the course of the trial, 

[and] that they could be confronted by those individuals upon 

leaving the courthouse, . . . requested safety escorts. 

There was absolutely no statement made to [the court]

about anybody seeing anything on Facebook, social media, or 

having heard anything out in the community that would have 

led to them having those safety concerns.

3. District court ruling on motion for a new trial. In his motion for a 

new trial, Christensen argued that the record established juror 

misconduct and jury bias. The district court denied relief.

In its posttrial ruling, the district court summarized the testimony 

of the jurors. The district court considered whether the jurors saw or 

heard about the E’ville Amy Facebook post outside the courthouse. The 

district court noted that none of the jurors testified they saw or read the 

Facebook posting by E’ville Amy.

The district court considered the question of when the jury heard 

about the possibility of public violence. The district court noted that five 

jurors acknowledged they heard about the possibility of a riot or public 

violence from another juror if a certain verdict was not reached. But, 
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according to the district court, only one juror could recall which juror 

made the statement. The district court also observed that one juror heard 

about a possible riot in the community but called it “ridiculous.”

Further, the district court stated three jurors testified they did not 

recall any discussion of public violence and two other jurors believed the 

jurors’ safety concerns were due, at least in part, to the tension in the 

courtroom between friends and family members of the Christensen and 

Bortvit families. The district court noted the jury foreperson, G.S., took a 

survey of the jurors to see if they felt unsafe after their verdict had been 

read, and when a majority of jurors raised their hands, the court was 

notified of the concern. When the court was informed of the jury’s concern 

after the verdict was rendered, the court stated that no mention was made 

about comments on Facebook or about someone having heard something 

that led the jurors to perceive a threat to their safety.

The district court further observed three jurors testified that the 

possibility of a public disturbance or public violence had been brought up 

by another juror during the course of the trial and before the jury reached 

its verdict. These three jurors, however, could not recall who brought up 

the issue. Two of the three jurors, the court noted, could not recall when 

the juror commented on the possibility of violence.

After summarizing the jurors’ testimony, the district court applied a

multifactor test set forth in State v. Cullen, 357 N.W.2d 24, 27 (Iowa 1984), 

abrogated on other grounds by Ryan v. Arneson, 422 N.W.2d 491, 495 

(Iowa 1988), to determine whether to grant Christensen a new trial based 

on juror misconduct. Based on its review of the record, the district court 

concluded Christensen failed to meet the Cullen test.

To determine whether to grant Christensen a new trial based on 

juror bias, the district court considered State v. Webster, 865 N.W.2d 223, 
19

236–39 (Iowa 2015). The court held Christensen did not meet his burden 

of showing juror bias.

II. Discussion of Juror Disqualification.

A. Introduction. Christensen seeks a new trial because of the 

alleged bias of juror K.B. Iowa Rule of Criminal Procedure 2.24(2)(b)(9) 

provides that a court may grant a new trial when “the defendant has not 

received a fair and impartial trial.” As we noted in Webster, “a jury 

consisting of eleven impartial jurors and one actually biased juror is 

constitutionally infirm without any showing that there was juror 

misconduct.” 865 N.W.2d at 237 n.7.

B. Positions of the Parties.

1. Christensen’s position. Christensen claims the district court 

committed reversible error when it refused to disqualify juror K.B. for 

potential bias. He contends that while a district court decision denying a 

motion for new trial is ordinarily reviewed for an abuse of discretion, we 

review fact-finding de novo when constitutional issues are involved.

Christensen emphasizes the language used by K.B. when pressed 

about whether she had made any out-of-court statement declaring 

Christensen guilty. Christensen points out that K.B.’s answers when 

asked about making statements about Christensen’s guilt or innocence 

were guarded and circumspect: “I don’t believe I did” and “I don’t think I 

ever said anything about his guilt or innocence.” (Emphasis added.)

In support of his argument, Christensen cites State v. Beckwith, 242 

Iowa 228, 238–39, 46 N.W.2d 20, 26 (1951), abrogated on other grounds 

by State v. Neuendorf, 509 N.W.2d 743, 746 (Iowa 1993). In Beckwith, this 

court cautioned that “trial courts should use the utmost caution in 

overruling challenges for cause in criminal cases when there appears to be 

a fair question as to their soundness.” Id. at 238, 46 N.W.2d at 26. The 
20

Beckwith court noted that while a ruling might be technically sound, “it is 

far better to give the accused the benefit of the doubt.” Id. at 239, 46 

N.W.2d at 26.

2. The State’s position. The State counters that the standard to be 

applied to a question of juror disqualification is abuse of discretion. 

Webster, 865 N.W.2d at 231. The State recognizes an abuse of discretion 

occurs when a district court order is based on an erroneous application of 

law. See State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). And, even 

if the case involves a constitutional question subject to de novo review, the 

State emphasizes that the reviewing court gives some deference to 

credibility determinations made by the district court. See State v. Carter, 

696 N.W.2d 31, 36 (Iowa 2005).

The State urges us to examine the record made regarding the motion 

to disqualify K.B. The State notes that K.B. repeatedly stated she had not 

come to a decision regarding the guilt or innocence of the accused. 

Further, the State notes there was no factual showing the juror actually 

stated at a family event that she believed the defendant was guilty.

C. Discussion. On the issue of juror disqualification, we do not 

decide whether the standard of review is de novo or abuse of discretion. 

As in Webster, we generally agree with the fact-finding of the district court. 

865 N.W.2d at 231 n.4.

Christensen’s cited case of Beckwith provides sound advice to the 

district court, namely, that it makes practical sense to error on the side of 

caution on a question of jury disqualification. In this case, there were two 

alternate jurors available to take the place of a dismissed juror.

Yet, the Beckwith advice to judges to be cautious when there is a 

close question of disqualification for cause does not alter the requirement 

that the defendant establish a sufficient basis to support disqualification 
21

of a juror. Here, there was no direct evidence the juror actually made the 

alleged statements about Christensen’s guilt. Rather, there was only an 

anonymous note summarizing a coffee shop discussion. No one testified 

that juror K.B. actually made the statements attributed to her in the 

anonymous coffee shop note. The qualified language used by the juror 

when she was questioned about the alleged statement, of course, is a 

factor, and in some cases might be an important factor,1 but here, the 

evidence that she actually made the potentially disqualifying statements 

attributed to her is hearsay upon hearsay and generally denied by the 

juror. Had credible testimony been offered showing that K.B. did, in fact, 

 1Social science research suggest that the language actually used by a witness 

provides a much better barometer of credibility than witness demeanor, which is often 

misleading. In two pioneering articles, legal academics reviewing the social science 

literature explain that visual cues are significantly worse than language content in 

assessing credibility. Jeremy A. Blumenthal, A Wipe of the Hands, a Lick of the Lips: The 

Validity of Demeanor Evidence in Assessing Witness Credibility, 72 Neb. L. Rev. 1157, 

1203 (1993) (“[R]esearch has shown that observers exposed to a witness’ voice are able 

to judge deceit best, and those exposed to merely a transcript and no ‘demeanor cues’ do 

almost as well, up to twice as well as those who are exposed to visual cues. Thus, there 

is support for the claim that findings of credibility could be reviewed de novo by appellate 

courts.” (Footnote omitted.)); Olin Guy Welborn III, Demeanor, 76 Cornell L. Rev. 1075, 

1075, 1104–05 (1991) (“According to the empirical evidence, ordinary people cannot make 

effective use of demeanor in deciding whether to believe a witness. On the contrary, there 

is some evidence that the observation of demeanor diminishes rather than enhances the 

accuracy of credibility judgments. . . . To the extent that people can detect lying or 

erroneous beliefs in another, they do so primarily by paying close attention to the content 

of what the other says, not by observing facial expression, posture, tone of voice, or other 

nonverbal behavior.”). Later research has confirmed the accuracy of those two articles 

and further explains how juror biases and information asymmetry can affect lie detection. 

Max Minzner, Detecting Lies Using Demeanor, Bias, and Context, 29 Cardozo L. Rev. 2557, 

2558, 2578 (2008). Relying on the social science research, courts have expressed unease 

with dependence on demeanor evidence to assess credibility because of its tendency to 

mislead. See, e.g., United States v. Pickering, 794 F.3d 802, 805 (7th Cir. 2015) 

(“[D]emeanor evidence, such as tone of voice, or gestures or posture, can be an unreliable 

clue to truthfulness or untruthfulness, and thus distract a trier of fact from the cognitive 

content of a witness’s testimony.”); United States v. Shonubi, 895 F. Supp. 460, 481 

(E.D.N.Y. 1995) (“Gauging credibility is the best known application of demeanor. 

Ironically, this may be one of its least effective uses.”), vacated on other grounds, 103 F.3d 

1085 (2d Cir. 1997); State v. Rogerson, 855 N.W.2d 495, 509–10 (Iowa 2014) (Hecht, J., 

concurring specially) (explaining that “intuitive assumptions” that physical distance and 

vision-blocking screens between a witness and defendant “bear[] on the assessment of 

reliability may be true, but maybe not”).
22

make the statements attributed to her, we would have a different scenario. 

In light of the record developed in this case, however, we decline to disturb 

the ruling of the district court.

III. Discussion of Prosecutorial Misconduct.

A. Positions of the Parties.

1. Christensen’s position. Christensen asserts the district court 

erred in failing to grant him a new trial based upon prosecutorial 

misconduct. See State v. Graves, 668 N.W.2d 860, 867 (Iowa 2003); State 

v. Piper, 663 N.W.2d 894, 913 (Iowa 2003), overruled on other grounds by 

State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010). Christensen argues 

prosecutorial misconduct occurred when the State elicited testimony from 

Tara Scott that the physical evidence was available for testing by others. 

In support of that claim he cites Hanes, 790 N.W.2d at 556. In Hanes, we 

held that the state bears the burden of proof in a criminal prosecution and 

that it was improper for the state to attempt to shift the burden to the 

defense by suggesting that the defense could have called additional 

witnesses. Id.

Christensen recognizes the district court sustained his objection to 

the Scott testimony and instructed the jury to disregard the question and 

the answer. According to Christensen, however, this was a case in which 

the proverbial bell, when once rung, cannot be unrung. See State v. 

Jackson, 587 N.W.2d 764, 766 (Iowa 1998) (“[A] reversal may only be 

predicated on the proposition that the matter forbidden by the ruling was 

so prejudicial that its effect upon the jury could not be erased by the trial 

court’s admonition.”); State v. Williamson, 570 N.W.2d 770, 771 (Iowa 

1997) (same).

Christensen also cites the testimony of Peter Wagner as establishing 

prosecutorial misconduct. According to Christensen, Wagner’s testimony 
23

that a metal detector was used by investigators at the Christensen farm 

was false and misleading. According to Christensen, a prosecutor’s use of 

false testimony violates due process. See DeVoss v. State, 648 N.W.2d 56, 

64 (Iowa 2002). Christensen notes the district court observed that 

Wagner’s testimony “bordered on the reckless.” Yet Christensen 

recognizes the court admonished the jury that Wagner’s testimony was 

misleading and provided Wagner with an opportunity to “clarify” his 

testimony.

2. The State’s position. The State counters there was no 

prosecutorial misconduct and, to the extent any may have occurred, it was 

cured by the actions taken by the district court. On the question of 

whether it was improper for Scott to testify that evidence was available for 

testing by others, the State does not discuss Hanes but instead relies on 

the earlier case of State v. Craig, 490 N.W.2d 795, 797 (Iowa 1992). In 

Craig, we stated that “a prosecutor may properly comment upon the 

defendant’s failure to present exculpatory evidence, so long as it is not 

phrased to call attention to the defendant’s own failure to testify.” Id.

(emphasis omitted) (quoting State v. Bishop, 387 N.W.2d 554, 563 (Iowa 

1986)).

With respect to the Wagner testimony, the State maintains 

Christensen failed to show the testimony about the telephone conversation 

with Davis was false, as neither Wagner nor Davis remembered what was 

specifically said. Further, the State suggests the prosecution had another 

witness who testified that Wagner used a metal detector.

In any event, in order for prosecutorial misconduct to be present, 

the State argues, Christensen must show that the State knew the 

testimony was false and that the false testimony was material to the case. 

See Hamann v. State, 324 N.W.2d 906, 909 (Iowa 1982). The State asserts 
24

that Christensen failed to show that the State knew the testimony was 

false and that the dust-up over whether a metal detector was used to locate 

metal objects at the Christensen farm is not the kind of question that

would influence the verdict in this case.

B. Discussion. We conclude the State has the better argument 

with respect to the prosecutorial misconduct claim arising out of the Scott 

testimony. Her testimony crossed the line established in Hanes, a case 

which the State declined to address. Yet, upon objection, the district court 

excluded the evidence and directed the jury to disregard it.

We do not think the error was so serious to require a mistrial. We 

have said that a prosecutor’s misconduct will not warrant a new trial 

unless the conduct was so prejudicial as to deprive the defendant of a fair 

trial. State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999). We have noted that

“[p]rejudice can, but usually does not, result from isolated prosecutorial 

misconduct.” State v. Anderson, 448 N.W.2d 32, 34 (Iowa 1989). Here, 

the prosecutorial misconduct was an isolated event and was not as 

prejudicial as, say, a comment on the defendant’s failure to testify in his 

or her own defense.

Further, as both parties recognize, we have stated curative 

instructions are generally sufficient to cure most trial errors. See State v. 

Plaster, 424 N.W.2d 226, 232 (Iowa 1997). Here, the improper question, 

the answer, the motion to strike, and the curative instruction happened in 

rapid succession. The testimony stricken was not of a startling or 

flamboyant nature that was likely to make an indelible impression on the 

jury. We think the district court’s response to the timely objection at trial 

provided an adequate remedy to Scott’s inappropriate testimony.

We also reject Christensen’s assertion that he is entitled to a new 

trial based upon Wagner’s alleged misconduct. The district court found 
25

Wagner’s testimony regarding his conversation with Davis troubling, and 

so do we. But the record does not support a conclusion the State was 

aware, or should have been aware, of a plan by Wagner to present false 

testimony. See Hamann, 324 N.W.2d at 909. Further, Wagner returned 

to the stand to clarify his prior misleading testimony about his 

conversation with Davis. Ultimately, the jury was not materially misled,

and Wagner’s credibility was clearly damaged by his misstep. This 

singular event on a collateral issue does not provide the basis for a new 

trial.

IV. Discussion of Jury Misconduct and Bias.

A. Introduction. The Sixth and Fourteenth Amendments to the 

United States Constitution and article I, sections 9 and 10 of the Iowa 

Constitution guarantee a criminal defendant the right to a fair trial before 

an impartial jury. U.S. Const. amends. VI, XIV; Iowa Const. art. I, §§ 9, 

10; Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642 (1961). The 

jury is constitutionally required to base its verdict on the evidence 

developed at trial. Irvin, 366 U.S. at 722, 81 S. Ct. at 1642. The partiality 

of one juror due to extraneous influence is sufficient to deny the defendant 

the constitutional guarantee of an impartial trial. Parker v. Gladden, 385 

U.S. 363, 366, 87 S. Ct. 468, 471 (1966) (“[P]etitioner was entitled to be 

tried by 12, not 9 or even 10, impartial and unprejudiced jurors.”); 

Webster, 865 N.W.2d at 237 n.7 (“[A] jury consisting of eleven impartial 

jurors and one actually biased juror is constitutionally infirm . . . .”).

The constitutional right to an impartial jury may be impaired by jury 

misconduct and jury bias. The concepts of juror misconduct and juror 

bias are often related but are somewhat different in nature. Webster, 865 

N.W.2d at 232. Juror misconduct often involves communication by a juror 

with others about the case outside the jury room, independently 
26

investigating the crime, or engaging in independent research on questions 

of law or fact. Id. Juror bias, on the other hand, does not necessarily 

involve juror misconduct, but arises when a juror is unable to fairly engage 

in a determination of guilt or innocence based on the evidence at trial and 

the court’s instructions. Id.

Under our rules of criminal procedure, a defendant may be entitled 

to a new trial when the jury “have been guilty of any misconduct tending 

to prevent a fair and just consideration of the case.” Iowa R. Crim. P. 

2.24(2)(b)(3). Our rules also provide for a new trial if “the jury has received 

any evidence . . . not authorized by the court.” Id. r. 2.24(2)(b)(2). Finally, 

our rules provide that a new trial may be granted when “the defendant has 

not received a fair and impartial trial.” Id. r. 2.24(2)(b)(9).

Also relevant is Iowa Rule of Evidence 5.606(b). Under this rule, a 

juror is generally prohibited from testifying about jury deliberations except 

a juror may testify about whether any extraneous information was 

improperly brought to the attention of the jury. Id.

B. Positions of the Parties.

1. Christensen’s position. Christensen argues that he is entitled to 

a new trial based on jury misconduct and jury bias. He cites the authority 

to grant a new trial in Iowa Rules of Criminal Procedure 2.24(2)(b)(2), 

(2)(b)(3), and (2)(b)(9). Christensen argues that although a denial of a 

motion for new trial based upon juror misconduct or juror bias is reviewed 

for an abuse of discretion, we review fact-finding de novo when 

constitutional issues are involved.

The thrust of his claim is that a juror or jurors learned from sources 

outside the jury there might be a riot at the courthouse in the event the 

jury did not return a certain verdict. The juror or jurors then told other 
27

jurors of the possibility of a riot. Christensen claims these events 

prevented him from getting a fair trial.

In pressing his claim, Christensen urges us to apply a test presented 

in Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954). 

In Remmer, the Supreme Court stated 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 is, for obvious 

reasons, deemed presumptively prejudicial.” Id. The Remmer Court noted 

that “[t]he presumption is not conclusive, but 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.” Id. The case was remanded to allow the government to 

attempt to meet its burden. Id. at 230, 74 S. Ct. at 451–52.

Christensen cites a number of federal circuit court cases in support 

of a relatively stringent test. For instance, Christensen cites United States 

v. Dutkel, 192 F.3d 893, 897–98 (9th Cir. 1999), abrogated on other 

grounds by Godoy v. Spearman, 861 F.3d 956, 968 n.6 (9th Cir. 2017) (en 

banc). In Dutkel, the United States Court of Appeals for the Ninth Circuit 

held that a prima facie showing of jury tampering triggered a presumption 

of prejudice and that the court should inquire whether “the intervention 

interfered with the jury’s deliberations by distracting one or more of the 

jurors, or by introducing some other extraneous factor into the deliberative 

process.” Id. at 897. Christensen cites several additional cases for the 

proposition that the court should engage in stringent review when there 

are claims of external influence on a jury. See United States v. Rutherford, 

371 F.3d 634, 644 (9th Cir. 2004) (“The appropriate inquiry is whether the 

unauthorized conduct ‘raises a risk of influencing the verdict,’ or ‘had an 

adverse effect on the deliberations.’ ” (first quoting Caliendo v. Warden of 
28

Cal. Men’s Colony, 365 F.3d 691, 697 (9th Cir. 2004); and then quoting 

United States v. Henley, 238 F.3d 1111, 1117 (9th Cir. 2001)); United 

States v. Tucker, 137 F.3d 1016, 1031 (8th Cir. 1998) (“The question of 

prejudice depends on whether ‘there is any reasonable chance that the 

jury would have been deadlocked or would have reached a different verdict 

but for the fact that even one reasonable juror was exposed to prejudicial 

extraneous matter.’ ” (emphasis omitted) (quoting United States v. Hall, 

116 F.3d 1253, 1255 (8th Cir. 1997)); United States v. Cheek, 94 F.3d 136, 

144 (4th Cir. 1996) (granting relief where one juror, exposed to bribery 

attempt, was “devastated and fearful”).

Christensen also urges us to apply a “heightened scrutiny” test 

adopted in State v. Carey, 165 N.W.2d 27, 30 (Iowa 1969). In Carey, we 

considered, among other issues, the impact of a sign in the jury room 

indicating that the coffee was being jointly provided by the county clerk 

and the county attorney. Id. at 28. We emphasized, “Our anxiety to 

protect the jury from any conduct which would lessen public confidence 

in our judicial system should be even greater in a criminal trial.” Id. at

30. Citing the coffee sign and other errors, we reversed the conviction. Id. 

Christensen argues that the heightened scrutiny afforded by Carey in 

criminal cases was recognized in Cullen, 357 N.W.2d at 27.

Applying heightened scrutiny under Remmer or Carey, Christensen 

argues, he is entitled to a new trial because of juror misconduct. 

Christensen asserts that the misconduct arose when jurors received 

external information about the possibility of a riot if a certain verdict was 

not returned and when this information was communicated to the jury 

during their deliberations.

Christensen canvasses the record developed in the jury poll to 

support his mistrial motion. Christensen notes that one juror testified 
29

that two jurors had seen a Facebook post indicating that people were 

threatening violence depending on what decision the jury made. He 

emphasizes testimony that those two jurors saw postings about violence 

against the jury. Viewing Facebook postings about the trial, according to 

Christensen, would violate the instructions of the court to avoid contact 

with social media. Christensen notes that one juror testified that another 

juror told the jury that she had overheard talk in the community about a 

riot if the defendant was found not guilty.

The misconduct continued, Christensen asserts, when the jurors 

shared the extraneous information with other members of the jury. 

Christensen observes the jury poll demonstrated that nine of the twelve 

jurors were aware of the potential threat. He further notes that one juror 

testified that comments were made about the threat a few days before the 

verdict was rendered and before the conclusion of evidence. In addition, 

he points out, two jurors recalled that another juror had spoken by 

telephone with a family member about the riot threat before the jury 

returned to continue its deliberations on Friday.

Christensen argues the threat had an impact on the jurors’ concern 

for their own safety. Christensen cites the testimony of the jury foreperson 

who stated that after the verdict was rendered, he took a poll of jurors and 

a majority raised their hands when asked whether they were concerned 

about their personal safety. Christensen points out juror testimony that 

the perceived threat played a role in the jury’s request for a police escort 

when jurors walked to their cars after rendering their verdict. Another 

juror, he notes, recalled being told the threat was “all over Facebook” and 

that this threat was the reason the jury was led out of the courthouse. 

Christensen also directs our attention to a third juror’s testimony 

concerning a juror who heard of the threat and was very emotional and 
30

upset. He further points out that one juror was sufficiently alarmed about 

her safety to ask the sheriff to patrol her home after the conclusion of the 

trial.

Christensen cites two cases from other jurisdictions in which threats 

of public violence gave rise to a change in venue. In Lozano v. State, 584 

So. 2d 19, 22 (Fla. Dist. Ct. App. 1991) (per curiam), the Florida appellate 

court held that the district court erred in failing to grant a change of venue 

in a police shooting case that had attracted media attention and caused a 

Miami neighborhood to erupt into civil disturbance. The Lozano court 

noted that several jurors were affected by the fear of violence and that 

several had heard from friends or relatives that there might be a 

disturbance if the defendant was found guilty. Id. at 22 n.5. The Florida 

court stated,

Surely, the fear that one’s own county would respond to a not 

guilty verdict by erupting into violence is as highly 

“impermissible [a] factor” as can be contemplated. Surely too, 

there was an overwhelmingly “unacceptable risk” of its having 

adversely affected Lozano’s—and every citizen’s—most basic 

right under our system: the one to a fair determination of his 

guilt or innocence based on the evidence alone.

Id. at 22–23 (quoting Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 

1693 (1976)).

Christensen also cites Powell v. Superior Court, 283 Cal. Rptr. 777, 

787 (Ct. App. 1991). In this case, the California appellate court confronted 

a situation in which white police officers were charged with assaulting 

Rodney King, an African-American man. Id. at 778–80. In granting a 

change of venue, the Powell court noted that “[it] must draw the inevitable 

inference about the possibility of threats which would surface during the 

trial itself.” Id. at 787. The Powell court found the possibility of threats of 

violence would “add another impermissible factor into the boiling cauldron 
31

surrounding this case, making it imperative to take every step possible to 

ensure that an impartial unbiased jury be seated.” Id.

Under the circumstances here, Christensen contends there is no 

doubt that one or more jurors were exposed to the Facebook posting about 

a potential riot and that some of the jurors were exposed to this 

information as early as days before deliberation and certainly before the 

verdict was rendered. The jury poll, he notes, revealed that nine of the 

jurors were aware of discussion of a possible riot in the community if a 

certain verdict was not rendered, that one of them was emotionally upset 

about it, that the jury poll taken immediately after the verdict was 

rendered revealed sufficient concern that law enforcement escorted the 

jury from the courtroom, and that one of the jurors asked to have her home 

patrolled after the verdict was rendered.

Christensen presses that the extraneous information about a 

potential riot was calculated to, and with reasonable probability did, 

influence the verdict. While Christensen recognizes the district court 

noted that two jurors commented that they considered the threats 

“ridiculous” or “fairly dismissed,” such consideration was impermissible 

under Iowa Rule of Evidence 5.606(b). Christensen urges us to instead 

consider objectively the potential impact on the jury verdict. See State v. 

Henning, 545 N.W.2d 322, 325 (Iowa 1996). Noting twenty-four of sixty 

prospective jurors were disqualified for cause, Christensen argues that the 

case involved a star athlete killing a popular college student that generated 

community sentiment. If even one juror was not impartial as a result of 

the possibility of a riot, Christensen argues he is entitled to a new trial. 

See Parker, 385 U.S. at 365–66, 87 S. Ct. at 471; Webster, 865 N.W.2d at 

237 n.7.
32

2. The State’s position. The State suggests the proper standard of 

review for juror misconduct is abuse of discretion, citing Webster, 865 

N.W.2d at 231. The State again recognizes, however, that an erroneous 

application of law is an abuse of discretion. Rodriquez, 636 N.W.2d at 239. 

The State also cites Carter, 696 N.W.2d at 36, a case involving de novo 

review of constitutional issues, for the proposition that even when 

constitutional issues are involved, the court on appeal gives deference to 

findings of fact because of the district court’s ability to assess the 

credibility of witnesses.

The State asserts that in seeking a new trial based on juror 

misconduct, a defendant must satisfy the multipronged approach outlined 

in Cullen, 357 N.W.2d at 27, and utilized in Webster, 865 N.W.2d at 235–

36. First, the evidence bearing on misconduct must be based only on 

objective facts as to what occurred. Webster, 865 N.W.2d at 234. Second, 

“the acts or statements complained of must exceed tolerable bounds of 

jury deliberation.” Id. (quoting Cullen, 357 N.W.2d at 27). Third, “it must 

appear the misconduct was calculated to, and with reasonable probability 

did, influence the verdict.” Id. (quoting Cullen, 357 N.W.2d at 27).

In canvassing the jury poll record, the State argues there was no 

juror misconduct. The State asserts the evidence revealed that one juror 

apparently spoke to her granddaughter and the granddaughter—not the 

juror—saw the threat on Facebook. Another juror, according to the State, 

simply heard a community member comment about a threat to the jury’s 

safety. The State notes there was no evidence that a juror saw the threat 

by violating the court’s instruction against viewing material on social 

media. The State discounts the testimony of the juror who stated that two 

jurors had directly seen the threat on Facebook.
33

The State further recognizes that in State v. Johnson, 445 N.W.2d 

337, 342 (Iowa 1989), overruled on other grounds by State v. Hill, 878 

N.W.2d 269, 274–75 (Iowa 2016), we held that outside information relayed 

to the jury before or during jury deliberations exceeds the permissible 

bounds of jury deliberation. In Johnson, a juror told other jurors that one 

of the defendant’s victims “broke down” and cried in front of a teacher at 

school. Id. at 339. The juror also told other jurors that he had heard 

rumors the defendant hit the victims. Id. The State, however maintains 

that Johnson does not apply here because the district court concluded 

from its credibility findings that no juror discussed the threat during jury 

deliberations.

Further, the State argues there was no reasonable probability the 

threat to the jurors’ safety affected the verdict. The State relies on 

statements from some jurors that the threat was “ridiculous” and “fairly 

dismissed.” While one juror was described as being upset, the State 

argues she did not hear of the threat until after the verdict. Finally, the 

State claims the jurors’ request for a police escort upon leaving the 

courthouse was attributed to all the family members and public attending 

the trial and a desire to avoid confrontation when leaving the courthouse.

Finally, the State argues there was no reasonable probability that 

the jury’s verdict was impacted because the State’s evidence was so strong. 

The State notes the defendant admitted at trial, and to both his parents 

prior to trial, that he shot the victim. The State further notes other 

evidence, such as the gun retrieved from the defendant’s home and his 

bloodstained pants and boots, supports the second-degree murder verdict. 

Finally, the State contends the evidence at trial established the defendant 

was upset with his ex-girlfriend.
34

C. Proper Framework for Evaluating Juror Misconduct.

1. Introduction. The first issue we must resolve is the proper legal 

framework for determining whether a reversible case of jury misconduct is 

present. A district court that misapplies the legal test commits reversible 

error. Rodriquez, 636 N.W.2d at 239. If the district court applied the 

correct test, the second issue that arises is the proper standard of review 

on appeal. Once we have determined the proper legal standard and the 

standard of review to be applied on appeal, we can then apply the law to 

the facts of this case.

In considering these questions, we recognize there are two 

competing interests in considering how to handle juror misconduct. On 

the one hand, a core tenet of our system of government, enshrined in the 

right to counsel and due process provisions of the Iowa and United States 

Constitutions, is the notion that criminal convictions are imposed only by 

a fair and impartial jury based solely on the evidence. See James W. 

Diehm, Impeachment of Jury Verdicts: Tanner v. United States and 

Beyond, 65 St. John’s L. Rev. 389, 393 (1991) [hereinafter Diehm].

On the other hand, intrusive inquiries into jury deliberations could 

undermine right-to-counsel and due process goals. See id. If jurors 

understand the public will have access to deliberations, they may be more 

controlled by perceptions of public opinion than the evidence at hand. See

id. at 438; Note, Public Disclosures of Jury Deliberations, 96 Harv. L. Rev. 

886, 894 (1983). As a result, jury privacy is essential to public confidence 

in the verdict. Tanner v. United States, 483 U.S. 107, 120–21, 107 S. Ct. 

2739, 2748 (1987). Further, there is an interest in finality. Id. at 120, 

107 S. Ct. at 2747. Attacking verdicts, sometimes years later, may put the 

prosecution at a disadvantage as memories fade, witnesses become 

unavailable, and evidence is lost. Diehm, 65 St. John’s L. Rev. at 402. 
35

Yet, few would argue that finality considerations trump the need to avoid 

miscarriages of justice that may occur if a defendant is tried by a partial 

jury.

The task is complicated by our evolving rules of evidence. Under 

Federal Rule of Evidence 606(b) and its Iowa counterpart, Iowa Rule of 

Evidence 5.606(b), a court is generally prohibited from inquiring into jury 

deliberations. Although inquiry into precisely what extraneous 

information was presented to a juror or jurors is permissible, exploration 

of the actual impact on jurors by asking them how the extraneous 

information impacted the deliberations and verdict is off limits. See United 

States v. Williams-Davis, 90 F.3d 490, 496 (D.C. Cir. 1996); State v. Wilson, 

878 N.W.2d 203, 210 (Iowa 2016). Further, the passage of time can be 

problematic on record development. See Moore v. Knight, 368 F.3d 936, 

941–42 (7th Cir. 2004) (“[I]t is ridiculous to base such a determination [of 

whether or not there was prejudice] on the predictable lack of evidence so 

many years after the fact.”). Because of the barriers presented by 

evidentiary rules, and often by the passage of time, questions of what 

presumptions and burdens of proof apply under various circumstances 

are critical to case outcomes when assessing whether extraneous 

influences prevented the defendant from receiving a fair trial.

And there is a further complication, namely, the era of the Internet. 

Because of the Internet, the likelihood of jurors receiving extraneous 

information has exponentially increased. See Bennett L. Gershman, 

Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. Rev. 

322, 324 (2005). In June 2013, Wikipedia had almost eight billion page 

views. Anna H. Tison, United States v. Lawson: Problems with Presumption 

in the Fourth Circuit, 91 N.C. L. Rev. 2244, 2244 (2013). A low threshold 

for court intervention could significantly impact the stability of verdicts.
36

In the end, it would be difficult to argue that verdicts could never be 

impeached as a result of injection of extraneous information into the jury 

process. On the other hand, setting the bar too low could well backfire 

and could impose unacceptable costs that are at best weakly linked to trial 

outcomes. As is often the case in the law, it is a delicate balance.

2. Competing approaches to extraneous influences on jurors in 

United States Supreme Court caselaw. We begin with a discussion of a 

thread of four United States Supreme Court cases dealing with the right 

to an impartial jury. As will be seen, the cases are at least somewhat 

inconsistent and have led to a variety of permutations in the lower federal 

courts.

The first significant case is the capital murder case of Mattox v. 

United States, 146 U.S. 140, 13 S. Ct. 50 (1892). In Mattox, jurors 

submitted affidavits posttrial indicating the bailiff had discussed the case 

with the jury and a newspaper article related to the case was read to the 

jury. Id. at 142–43, 13 S. Ct. at 51. The bailiff had told the jury that the 

deceased in the case was the defendant’s third victim. Id. at 142, 13 S. Ct. 

at 51. The newspaper article stated this was the defendant’s second trial, 

the evidence against him was “very strong,” and “friends of Mattox gave up 

all hope of any result but conviction.” Id. at 143, 13 S. Ct. at 51–52.

The Mattox Court addressed the question of what evidence should 

be considered in impeaching the jury’s verdict. The Mattox Court stated 

that a member of the jury could testify on the question of the existence of 

any extraneous influence, although not as to how far that influence 

operated upon the juror’s mind. See id. at 149, 13 S. Ct. at 52–53. At 

least in capital cases, the Mattox Court declared that “[p]rivate 

communications, possibly prejudicial, between jurors and third persons . 

. . are absolutely forbidden, and invalidate the verdict, at least unless their 
37

harmlessness is made to appear.” Id. at 150, 13 S. Ct. at 53. In support 

of the notion that extraneous communications were “absolutely 

forbidden,” the Mattox Court cited state court cases from Michigan and 

Kansas. Id. (citing State v. Snyder, 20 Kan. 306, 308–10 (1878); People v. 

Knapp, 3 N.W. 927, 929–31 (Mich. 1879)). Although there were other 

bases for reversal, the unanimous Mattox Court made clear the extraneous 

influence introduced to the jury in this case would have been reversible 

error as well. Id. at 151, 13 S. Ct. at 53.

The next case in the thread is Remmer, 347 U.S. 227, 74 S. Ct. 450,

decided more than fifty years after Mattox. In Remmer, the defendant was 

charged with, and convicted of, willful evasion of federal income taxes. Id.

at 228, 74 S. Ct. at 450. The defendant learned after trial that an 

unnamed person told the jury foreman that the foreman could profit by 

bringing in a verdict favorable to the defendant. Id. at 228, 74 S. Ct. at 

450–51. The juror reported the incident to the judge, who informed the 

prosecution but not the defense. Id. at 228, 74 S. Ct. at 451. The FBI 

then conducted an investigation and produced a report, which was 

considered by the judge and the prosecutors alone. Id. The judge and 

prosecution again considered the matter without the defense and, in light 

of the FBI report, concluded that “the statement to the juror was made in 

jest.” Id.

After trial, the defendant moved for a new trial. Id. His attorneys 

asserted that if they had known of the investigation, they would have 

moved for a mistrial and requested that the juror in question be replaced 

by an alternate juror. Id. at 228–29, 74 S. Ct. at 451. The district court, 

without holding a hearing, denied the motion, and the D.C. Circuit 

affirmed. Id. at 229, 74 S. Ct. at 451.
38

The Remmer Court, in a brief unanimous opinion by Justice Minton, 

vacated the appellate decision and remanded to the district court. Id. at 

230, 74 S. Ct. at 451–52. In a criminal case, the Remmer Court noted that

any private communication, contact, or tampering directly or 

indirectly, with a juror during a trial about the matter pending 

before the jury is, for obvious reasons, deemed presumptively 

prejudicial, if not made in pursuance of known rules of the 

court and the instructions and directions of the court made 

during the trial, with full knowledge of the parties.

Id. at 229, 74 S. Ct. at 451. In connection with the presumption of 

prejudice, the Remmer Court stated, “The presumption is not conclusive, 

but 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.” Id.

The Remmer Court further emphasized that sending an FBI agent 

during a trial to investigate a juror concerning his conduct “is bound to 

impress the juror and is very apt to do so unduly.” Id. The Remmer Court 

stressed that a juror must be free to participate in deliberations “without 

the F.B.I. or anyone else looking over his [or her] shoulder.” Id.

In this noncapital case, the Supreme Court did not use the absolute 

terms of Mattox but instead established a rebuttable presumption that 

could be overcome by the state only on a showing that the extraneous 

influence was harmless. Id. The Remmer Court directed the district court 

to hold a hearing on harm to the defendant and explained that if harm was 

found the district court should grant a new trial. Id. at 230, 74 S. Ct. at 

451–52. When the case returned, the Court reviewed the transcript 

developed in the district court on remand, concluded that the juror 

appeared to be under psychological pressure due to the bribe offer, and 

remanded for a new trial. Remmer v. United States, 350 U.S. 377, 381–82, 

76 S. Ct. 425, 427–28 (1956).
39

Thirty years after Remmer, the United States Supreme Court 

considered a question of juror bias in the case of Smith v. Phillips, 455 U.S. 

209, 102 S. Ct. 940 (1982). Phillips was convicted of two counts of murder 

and one count of attempted murder. Id. at 210, 102 S. Ct. at 942. He 

learned that during trial a juror was an active job applicant for a position 

as a major felony investigator with the district attorney’s office. Id. at 212, 

102 S. Ct. at 943. Members of the district attorney’s office, including the 

two attorneys actually prosecuting Phillips, learned of the application more 

than a week before the end of Phillips’s trial but elected not to advise the 

court or the defendant. Id. at 212–13, 102 S. Ct. at 943–44. After trial, 

the district attorney learned of the application and informed the court and 

defense attorneys. Id. at 213, 102 S. Ct. at 944.

Upon learning of the juror’s employment application, the defendant 

moved to set aside the verdict. Id. The trial court denied the motion, 

finding that while the application was an “indiscretion,” it “in no way 

reflected a premature conclusion as to [Phillips’s] guilt, or prejudice 

against [Phillips], or an inability to consider the guilt or innocence of 

[Phillips] solely on the evidence.” Id. at 213–14, 102 S. Ct. at 944.

Phillips sought federal habeas corpus relief. Id. at 214, 102 S. Ct. 

at 944. The district court imputed bias to the juror because “the average 

[person] in [the juror’s] position would believe that the verdict of the jury 

would directly affect the evaluation of his job application.” Id. (quoting 

Phillips v. Smith, 485 F. Supp. 1365, 1371–72 (S.D.N.Y. 1980)). The 

district court decreed that Phillips should be released unless granted a 

new trial within ninety days. Id. The Second Circuit affirmed by a divided 

vote, noting that “it is at best difficult and perhaps impossible to learn 

from a juror’s own testimony after the verdict whether he was in fact 

‘impartial.’ ” Id. (quoting Phillips v. Smith, 632 F.2d 1019, 1022 (2d Cir. 
40

1980)). The Second Circuit relied on the failure of the prosecutors to timely 

disclose the potential problem as violating due process in reversing the 

conviction. Id.

Before the Supreme Court, Phillips argued that the Court could not 

possibly rely solely upon the testimony of the juror in question. Id. at 215, 

102 S. Ct. at 945. The defendant argued that it would be impossible for 

him to prove the degree of bias through a Remmer-type hearing and that 

a conclusive presumption should arise under the facts of the case. Id.

In an opinion by Justice Rehnquist, a divided Supreme Court 

rejected the notion that the juror’s employment application itself was 

sufficient to establish the basis for a new trial. See id. at 217, 102 S. Ct. 

at 946. Instead, the majority held the proper approach was a Remmertype hearing “in which the defendant has the opportunity to prove actual 

bias.” Id. at 215, 102 S. Ct. at 945. The Phillips majority, therefore, may 

have suggested it was departing from Remmer both on the issue of 

presumption and the harmless error standard required to overcome the 

presumption.

In a concurring opinion, Justice O’Connor noted that “whether a 

juror is biased or has prejudged a case is difficult, partly because the juror 

may have an interest in concealing his own bias and partly because the 

juror may be unaware of it.” Id. at 221–22, 102 S. Ct. at 948 (O’Connor, 

J., concurring). Nonetheless, in most cases, Justice O’Connor concluded 

that a posttrial hearing would be adequate to determine whether a juror is 

biased. Id. at 222, 102 S. Ct. at 948. Yet, Justice O’Connor recognized 

that in some instances the use of a conclusive presumption might be 

justified. Id.

Justice Marshall, joined by Justices Brennan and Stevens, 

dissented. Id. at 224, 102 S. Ct. at 949 (Marshall, J., dissenting). Justice 
41

Marshall emphasized that “[t]he right to a trial by an impartial jury lies at 

the very heart of due process.” Id. at 224, 102 S. Ct. at 950. In his view, 

the majority erred in concluding that Phillips’s right to an impartial trial 

was adequately protected by a postevidentiary hearing to determine 

whether the jury was actually biased. Id. at 228, 102 S. Ct. at 952. 

According to Justice Marshall, the probability of bias in the case arising

from pursuit of employment was high yet it would be very difficult to prove 

the bias in a posttrial hearing. Id. at 230, 102 S. Ct. at 953. Justice 

Marshall cited precedent for the proposition that “[b]ias or prejudice is 

such an elusive condition of the mind that it is most difficult, if not 

impossible, to always recognize its existence.” Id. at 231, 102 S. Ct. at 953 

(quoting Crawford v. United States, 212 U.S. 183, 196, 29 S. Ct. 260, 265 

(1909)). Justice Marshall asserted that when the probability of bias is very 

high, a juror should be “automatically disqualified, despite the absence of 

proof of actual bias.” Id.

The last United States Supreme Court case is United States v. Olano, 

507 U.S. 725, 113 S. Ct. 1770 (1993). In this case, the defendants were 

convicted of crimes related to a loan kickback scheme. Id. at 727–29, 113 

S. Ct. at 1774–75. In Olano, alternates were permitted to sit in the jury 

room during deliberations but were instructed not to participate. Id. The 

question in Olano was whether the presence of the alternates during jury 

deliberations was “plain error” subject to correction under Federal Rule of 

Criminal Procedure 52(b). Id. at 727, 113 S. Ct. at 1774.

In an opinion by Justice O’Connor, the Olano Court concluded that 

plain error under rule 52(b) was not present. Id. at 737, 113 S. Ct. at 

1779. The majority emphasized that in order to qualify under the rule, the 

error must be of a kind that “affects substantial rights” of the party. Id. 

In order to so qualify, the Olano Court declared that the error must 
42

“seriously affect[] the fairness, integrity or public reputation of judicial 

proceedings.” Id. at 732, 113 S. Ct. at 1776, (quoting United States v. 

Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046 (1985)).

The Olano Court concluded that no such violation of the defendant’s 

rights occurred by the mere presence of alternate jurors in the jury room. 

Id. at 737, 113 S. Ct. at 1779. The Olano Court recognized there might be 

situations in which an intrusion into the jury room could be presumed 

prejudicial, but even in these cases, the ultimate inquiry continues to be 

whether the intrusion affected the jury’s deliberation and thereby its 

verdict. Id. at 739, 113 S. Ct. at 1780. Under the posture of the case, the 

Olano Court declined to find the mere presence of alternate jurors 

prejudicial. Id. at 740–41, 113 S. Ct. at 1781.

Justice Stevens, joined by Justices White and Blackmun, dissented. 

Id. at 743, 113 S. Ct. at 1782 (Stevens, J., dissenting). Justice Stevens 

argued,

[S]ome defects bearing on the jury’s deliberative function are 

subject to reversal regardless of whether prejudice can be 

shown, not only because it is so difficult to measure their 

effects on a jury’s decision, but also because such defects 

“undermin[e] the structural integrity of the criminal tribunal 

itself.”

Id. at 743, 113 S. Ct. at 1782–83 (alteration in original) (quoting Vasquez 

v. Hillery, 474 U.S. 254, 263–64, 106 S. Ct. 617, 623 (1986)). Justice 

Stevens declared that if a proper objection had been made, reversal would 

have been required. Id. at 744, 113 S. Ct. at 1783. Because no objection 

was made in the case, however, Justice Stevens framed the issue as 

whether the court of appeals’ reversal of Olano’s conviction was an abuse 

of discretion. Id. at 745, 113 S. Ct. at 1783. Justice Stevens concluded 

that it was not. Id. at 745, 113 S. Ct. at 1784.
43

3. Caselaw in lower federal courts. In light of the different 

approaches in the United States Supreme Court cases, it is not surprising 

that the lower federal courts have adopted different approaches to juror 

misconduct and bias and, in particular, the continued viability of the 

Remmer principles. Below we review how the federal courts have dealt 

with aspects of Remmer. First, we consider whether a presumption of 

prejudice occurs in cases involving extraneous influences on jurors. 

Second, we review how the federal courts handle the prejudice issue.

The caselaw on the question of whether to apply a Remmer-type 

presumption of prejudice in this field is nuanced and often fact-specific. 

Generally, however, as noted in United States v. Lawson, 677 F.3d 629, 

643 (4th Cir. 2012), it appears that the Second, Fourth, Seventh, Ninth, 

Tenth, and Eleventh Circuits continue to apply the Remmer presumption 

of prejudice in at least some cases involving external influences on jurors. 

See Godoy, 861 F.3d at 964 n.3; United States v. Moore, 641 F.3d 812, 828 

(7th Cir. 2011); United States v. Ronda, 455 F.3d 1273, 1299 (11th Cir. 

2006); United States v. Greer, 285 F.3d 158, 173 (2d Cir. 2000); Mayhue v. 

St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 922–23 (10th Cir. 1992).

Several circuits apply Remmer in some circumstances involving 

external influences on jurors. For instance, in United States v. Bradshaw, 

281 F.3d 278, 287–88 (1st Cir. 2002) (quoting United States v. Boylan, 898 

F.2d 230, 261 (1st Cir. 1990)), the First Circuit stated that the Remmer

presumption “is applicable only where there is an egregious tampering or 

third party communication which directly injects itself into the jury 

process.” In United States v. Lloyd, 269 F.3d 228, 238 (3d Cir. 2001), the 

Third Circuit applied the Remmer presumption of prejudice when a jury is 

exposed to extraneous information “of a considerably serious nature.” In 

another case, Stephens v. South Atlantic Canners, Inc. (Coca Cola Co.), 848 
44

F.2d 484, 486 (4th Cir. 1988) (quoting Haley v. Blue Ridge Transfer Co., 

802 F.2d 1532, 1537 n.9 (4th Cir. 1986)), the Fourth Circuit noted that 

the Remmer presumption was applicable for “more than innocuous 

interventions.”

In contrast, the Fifth, Sixth, Eighth, and District of Columbia 

Circuits seem to follow the approaches of Smith and Olano and do not 

employ a presumption of prejudice. See United States v. Sylvester, 143 

F.3d 923, 933–35 (5th Cir. 1998); Williams-Davis, 90 F.3d at 495–97; 

United States v. Blumeyer, 62 F.3d 1013, 1017 (8th Cir. 1995); United 

States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984).

There is an additional question addressed in the federal cases 

besides the issue of whether a Remmer presumption is available. The 

federal cases also address the question of how to determine prejudice 

which might rebut a presumption, if one is available, or which might 

otherwise be part of a defendant’s burden in establishing a basis for 

mistrial or obtaining a new trial.

In Remmer, the burden of proof rested with the government. There 

is authority suggesting that the burden of proof remains with the 

government in some circumstances, particularly in jurisdictions that 

continue to apply the Remmer presumption. See Cheek, 94 F.3d at 141 

(explaining that extrajudicial comments shift burden of proof to 

government); United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995) 

(explaining that government has the burden of showing harmlessness); 

United States v. Scisum, 32 F.3d 1479, 1484 (10th Cir. 1994) (holding that 

government failed to meet its heavy burden of showing harmlessness); 

United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984) (“Prejudice 

from extrinsic evidence is assumed in the form of a rebuttable presumption 

and the government bears the burden of demonstrating that the 
45

consideration of the evidence was harmless.”). However, in some circuits 

taking the view that Remmer was largely abandoned in Smith and Olano, 

the burden remains with the defendant. See, e.g., Pennell, 737 F.2d at 

532.

Many federal courts have characterized the general question as 

being whether there is a “reasonable possibility” that the extrinsic material 

influenced the verdict. See, e.g., Cheek, 94 F.3d at 138; United States v. 

Maree, 934 F.2d 196, 201–02 (9th Cir. 1991), abrogated on other grounds 

by United States v. Adams, 432 F.3d 1092, 1095 (9th Cir. 2006); United 

States v. Rowe, 906 F.2d 654, 656–57 (11th Cir. 1990); Dickson v. Sullivan, 

849 F.2d 403, 404 (9th Cir. 1988). Other federal courts have suggested 

that “substantial likelihood of prejudice” is the proper test. See, e.g., 

Lloyd, 269 F.3d at 243.

In any event, it is clear that “[t]here is no bright line test for 

determining whether a defendant has suffered prejudice from an instance 

of juror misconduct.” Sassounian v. Roe, 230 F.3d 1097, 1109 (9th Cir. 

2000) (quoting Rodriguez v. Marshall, 125 F.3d 739, 744 (9th Cir. 1997), 

overruled in part on other grounds by Payton v. Woodford, 299 F.3d 815, 

827–29 & n.11 (9th Cir. 2002)). A number of federal courts, however, have 

articulated a nonexclusive factor test to aid courts in determining the issue 

of prejudice. For example, the Ninth Circuit has suggested that factors 

relevant to the prejudice inquiry include

(1) whether the material was actually received, and if so, how; 

(2) the length of time it was available to the jury; (3) the extent 

to which the juror discussed and considered it; (4) whether 

the material was introduced before a verdict was reached, and 

if so at what point in the deliberations; and (5) any other 

matters which may bear on the issue of the reasonable 

possibility of whether the extrinsic material affected the 

verdict.
46

Dickson, 849 F.2d at 406 (quoting Marino v. Vasquez, 812 F.2d 499, 506 

(9th Cir. 1987)). Other cases have also articulated multifactor 

formulations to guide courts in determining the prejudice issue. See 

Lloyd, 269 F.3d at 239–41 (identifying as factors the relationship of 

extraneous information to jury’s findings, extent of the jury’s exposure, 

timing of the jury’s receipt of the extraneous information, length and 

structure of jury deliberations, and content of jury instructions).

Most lower federal courts have emphasized that the determination 

of prejudice is an objective inquiry. For example, in Greer, 285 F.3d at 

173, the Second Circuit embraced Remmer in a case involving extra-record 

information. In determining whether the extra-record information was 

harmless, the court emphasized that the determination was an objective 

one based upon the probable effect on a “hypothetical average juror.” Id.

(quoting United States v. Calbas, 821 F.2d 887, 896 n.9 (2d Cir. 1987)). 

The Greer court emphasized that it would be improper for a district court 

to inquire into, or admit affidavits concerning, whether the extra-record 

information had an impact on a juror or the jury. Id.; see also Lloyd, 269 

F.3d at 237–38 (emphasizing consideration of objective, not subjective, 

impact on hypothetical average juror); Cheek, 94 F.3d at 143 (holding the

district court erred in relying on juror’s mental processes when 

formulating findings of fact); United States v. Howard, 506 F.2d 865, 869 

(5th Cir. 1975) (stating that on remand the district court must disregard 

affidavit purporting to reveal alleged influence of extrinsic matter and avoid 

examination concerning jurors’ mental processes). Cf. United States v. 

Armstrong, 654 F.2d 1328, 1333 n.2 (9th Cir. 1981) (“Even though courts 

must apply an objective test in evaluating juror influence questions 

because jurors may not testify about their deliberations, it was proper for 
47

the District Court to consider juror Gingras’s statements in her note since 

they were before the court.” (Citation omitted.)).

Several federal courts have considered whether the number of jurors 

who are aware of the external influence is material in the calculation of 

prejudice. In Parker, 385 U.S. at 365–66, 87 S. Ct. at 471, the United 

States Supreme Court stated that due process is violated if one juror is 

improperly influenced. Following the Supreme Court’s lead, the federal 

caselaw suggests that the number of jurors who heard or were aware of 

the external influence does not weigh heavily in the analysis. See, e.g., 

Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (“The bias or prejudice 

of even a single juror would violate Dyer’s right to a fair trial.”); Lawson v. 

Borg, 60 F.3d 608, 613 (9th Cir. 1995) (“The number of jurors affected by 

the misconduct does not weigh heavily in the prejudice calculus for even 

a single juror’s improperly influenced vote deprives the defendant of an 

unprejudiced, unanimous verdict.”); United States v. Delaney, 732 F.2d 

639, 643 (8th Cir. 1984) (“If a single juror is improperly influenced, the 

verdict is as unfair as if all were.” (quoting Stone v. United States, 113 F.2d 

70, 77 (6th Cir. 1940))); Tillman v. United States, 406 F.2d 930, 937 (5th 

Cir. 1969) (“[I]f only one juror is improperly influenced, the trial is as unfair 

as if every juror was so influenced.”), vacated on other grounds, 395 U.S. 

830, 89 S. Ct. 2143 (1969) (per curiam). But see Lloyd, 269 F.3d at 240 

(stating that the extent to which jury is exposed to extraneous information 

is a factor in determining prejudice).

4. Caselaw in other states. The caselaw in the states on the 

question of how to handle extraneous influences on juries is varied. For 

instance, in Georgia, a Remmer-type presumption applies not only to 

extraneous influences but to any type of irregular juror conduct. Holcomb 

v. State, 485 S.E.2d 192, 195 (Ga. 1997). The Georgia caselaw, however, 
48

distinguishes between inconsequential and irregular conduct. Lamons v.

State, 340 S.E.2d 183, 184 (Ga. 1986) (“[S]ome irregularities are 

inconsequential.”). See generally Rachel Morelli, Comment, The Connected 

Juror’s Effect on the Sixth Amendment Right to an Impartial Jury and 

Georgia’s Presumption of Prejudice, 7 J. Marshall L.J. 527, 529 (2014) 

(discussing presumption of harm to defendant whenever there is irregular 

juror conduct). Similarly, the Connecticut Supreme Court concluded 

recently that the Remmer-type presumption remains good law in a jury 

tampering case. State v. Berrios, 129 A.3d 696, 712 (Conn. 2016).

Like the federal courts, state law cases that follow Remmer tend to 

leave the burden of proof with the state. See, e.g., id. at 713. In State v. 

Stafford, 678 P.2d 644, 647 (Mont. 1984), however, the Montana Supreme 

Court placed the burden on the defendant to show prejudice from a letter 

circulated to the jury urging the jury to resist court instructions. Similarly, 

in Massey v. State, 541 A.2d 1254, 1259 (Del. 1988), the Delaware 

Supreme Court placed the burden of showing actual prejudice on the 

defendant unless there are inherently prejudicial egregious 

circumstances.

Some state cases embrace the reasonable-possibility test. For 

instance, in Wiser v. People, 732 P.2d 1139, 1142 (Colo. 1987) (en banc), 

the Colorado Supreme Court stated that the test was “whether there is a 

‘reasonable possibility’ that extraneous contact or influence affected the 

verdict to the detriment of the defendant.” The Wiser court collected 

federal and state cases to the same effect. Id. Later, in People v. Wadle, 

97 P.3d 932, 937 (Colo. 2004) (en banc), the Colorado court applied the 

reasonable possibility test.

In contrast, the New Mexico Supreme Court recently overhauled its 

approach to handling cases in which jurors receive extraneous material in 
49

Kilgore v. Fuji Heavy Industries Ltd., 240 P.3d 648, 656 (N.M. 2010). The 

Kilgore court abandoned the notion of presumption of prejudice for a new 

approach. Id. Under Kilgore, the proper inquiry is whether “there is a 

reasonable probability that the extraneous material affected the verdict or 

a typical juror.” Id. The Kilgore court stated that whether there is a 

reasonable probability that the extraneous material affected the jury 

included consideration of five factors:

1. The manner in which the extraneous material was 

received;

2. How long the extraneous material was available to the jury;

3. Whether the jury received the extraneous material before 

or after the verdict;

4. If received before the verdict, at what point in the 

deliberations was the material received; and

5. Whether it is probable that the extraneous material 

affected the jury’s verdict, given the overall strength of the 

opposing party’s case.

Id.; see also In re Hamilton, 975 P.2d 600, 614 (Cal. 1999) (embracing 

“probability of prejudice” test); Commonwealth v. Sneed, 45 A.3d 1096, 

1115 (Pa. 2012) (embracing “reasonable likelihood of prejudice” test

(quoting Carter ex rel. Carter v. U.S. Steel Corp., 604 A.2d 1010, 1016 (Pa. 

1992))).

State courts have used an objective test for evaluating claims of jury 

misconduct. In Wiser, 732 P.2d at 1142, the Colorado Supreme Court 

employed an objective test to determine what effect misconduct would 

have on a typical jury. Similarly, in Buchholz v. State, 366 N.W.2d 834, 

840 (S.D. 1985), the South Dakota Supreme Court emphasized that the 

inquiry must apply an objective test and focus on the effect of the 

extraneous information on a typical juror.
50

5. Iowa caselaw. Iowa caselaw has long been reluctant to set aside 

jury verdicts on grounds of jury misconduct. Our traditional cases 

emphasize that in order for a new trial to be granted based on jury 

misconduct, it must be shown that the misconduct influenced the jury in 

reaching its verdict. See State v. Jackson, 195 N.W.2d 687, 689 (Iowa 

1972) (collecting cases).

A case with a somewhat unusual posture is Carey, 165 N.W.2d 27. 

In that case, the defendant was convicted of the crime of aggravated 

burglary. Id. at 28. In Carey, coffee was provided in the jury room with a 

typewritten sign indicating it was furnished by the county clerk and the 

county attorney. Id. The defendant moved for a mistrial, which the district 

court denied. Id. at 28–29. We found the practice would lessen public 

confidence in our judicial system and declared it “fraught with danger, one 

that is calculated to bring the administration of justice into disrepute, and 

one which all courts should zealously guard against.” Id. at 30.

In light of other trial errors, however, we were not required to 

determine whether reversal would be appropriate based on the issue. Id. 

More than a decade later, however, we decided Omaha Bank for 

Cooperatives v. Siouxland Cattle Cooperative, 305 N.W.2d 458 (Iowa 1981). 

In this case, we reversed a civil judgment after a jury foreman spoke to 

defense lawyers, made an offer to buy them drinks which was accepted, 

and engaged in extended conversation. Id. at 461–62. We found in Omaha 

Bank there was not sufficient evidence to support a finding that the

contact was not prejudicial to the adverse party. Id. at 462.

After Carey and Omaha Bank, we considered a first-degree murder 

case in which the defendant sought a new trial based upon jury 

irregularity in Cullen, 357 N.W.2d at 25. In this case, three jurors advised 

the court, in front of the other jurors, that they knew one of the rebuttal 
51

witnesses and that “they absolutely would not have served had they known 

these witnesses would be called to testify.” Id. at 26. The district court 

granted the mistrial, noting that juror statements made it easier for other 

jurors to believe the rebuttal witnesses. Id. at 26–27. In granting the relief, 

the district court relied on language in Carey, emphasizing that jury 

deliberations and pronouncements must be free “not only from all 

improper influences, but from the appearance thereof.” See id. at 27 

(quoting Carey, 165 N.W.2d at 30).

The Cullen court reversed. In doing so, it found that our precedents 

established that in order to impeach a verdict, a three-pronged test must 

be met: (1) evidence must consist only of objective evidence, (2) the acts or 

statements must exceed tolerable bounds of jury deliberation, and (3) the 

misconduct must appear calculated to, and with reasonable probability 

did, influence the verdict. Id.

The Cullen court also considered the question of prejudice. The 

Cullen court rejected the district court’s approach that the “possibility” 

jurors would be unable to give appropriate weight to the testimony of 

rebuttal witnesses was sufficient for reversal. Id. at 28. The court 

emphasized that there must be a reasonable probability the verdict be 

influenced, a test that the court declared “is not easy to satisfy.” Id.

Importantly, the Cullen court noted that Carey was inapposite 

because it dealt with a distinct issue. Id. The Cullen court emphasized 

the distinction between manipulation of the jury by outsiders, as in Carey, 

and cases concerned only with the internal operation of the jury. Id. The 

Cullen court stated that in the case of manipulation of the jury by 

outsiders, a stricter rule is justified to keep the jury above suspicion. Id. 

The Cullen court did not indicate what that stricter rule might be. Still, 
52

the plain suggestion is the three-pronged Cullen approach might not apply 

to outside efforts to manipulate the jury. Id.

In at least one case decided after Cullen, however, we rejected the 

notion that introduction of extraneous evidence gave rise to a presumption 

of prejudice. In Doe v. Johnston, 476 N.W.2d 28, 34 (Iowa 1991), we 

considered whether the circulation of a cartoon about the case in the jury 

room provided grounds for a new trial. The cartoon depicted a judge telling 

the jury, “The verdict should be guilty or not guilty. There’s no provision 

for guiltyish.” Id.

In Johnston, we first held that jurors were incompetent to testify 

about the impact of the cartoon on their verdict. Id. The Johnston court 

stated, “When there is proof that extraneous material has reached the jury 

room, the party seeking reversal on a misconduct claim must prove ‘that 

the misconduct was calculated to, and with reasonable probability did, 

influence the verdict.’ ” Id. at 35 (quoting Johnson, 445 N.W.2d at 342). 

The Johnston court cited with approval a federal case emphasizing that the 

court’s task was to determine whether extraneous information would 

prejudice an “objective, ‘typical juror.’ ” Id. (citing Urseth v. City of Dayton, 

680 F. Supp. 1084, 1089 (S.D. Ohio 1987)).

In Johnston, we rejected a claim that “prejudice is presumed to 

result from the introduction of extraneous information.” Id. We noted that 

some leeway was required in order to prevent a relatively minor matter 

from disrupting what might be a lengthy, costly, and otherwise fair trial. 

Id. On the facts, we concluded that injection of a humorous cartoon would 

not prompt an objective juror to reverse his or her view after days of 

testimony and jury deliberation. Id. The Johnston discussion, however, 

seems to suggest that we were rejecting presumption of prejudice where 

the intrusion into the jury was minimal.
53

In the recent case of Webster, the defendant challenged a district 

court’s denial of a posttrial motion for a new trial. 865 N.W.2d at 226. In 

Webster, the conduct of a juror was challenged on grounds that the juror 

was less than candid during voir dire about her relationship with the 

victim’s family, engaged in a brief trial-related communication with a third 

party at a convenience store during the trial, impermissibly engaged in 

outside-the-record research on the age of one of the witnesses, and 

improperly clicked “like” on a Facebook comment in which the victim’s 

stepmother stated “Give me strength.” Id. at 234–35.

The defendant failed to preserve constitutional error in this case. Id.

at 232. Webster asserted that review was for abuse of discretion. Id. at 

233. In light of the advocacy, we stated that our review of jury misconduct 

was for abuse of discretion, but observed in a footnote that we did not 

address the question of whether de novo review would be appropriate if 

constitutional issues were involved. Id. at 231 & n.4. With respect to the 

legal standard to be applied to juror misconduct and juror bias, Webster

asked us to apply the standard articulated in Cullen, 357 N.W.2d at 27. 

865 N.W.2d at 234. We were thus not asked to consider the implications 

of Remmer and its progeny or the approach in Carey. We did not explore 

adopting these standards that no one asked us to consider.

In Webster, we rejected the claims of juror misconduct by 

conducting a factual review in which the standard of review and even the 

substantive legal standards were largely irrelevant. See id. at 235–41. We 

concluded the juror did not provide false testimony in voir dire about her 

relationship with the victim’s family, the juror basically dusted off an 

interloper at a brief stop at a convenience store, the outside-the-record 

research occurred after the verdict was rendered, and the clicking of “like” 

on Facebook, though reflecting bad judgment, reflected empathy for the 
54

stepmother who lost her son and did not relate to the guilt or innocence of 

the accused. Id.

In Webster, however, we cautioned that jurors are now part of the 

electronic world and that there was a risk that jurors could engage in 

electronic and social media activity during trial. Id. at 239–40. We urged 

district courts to give admonitions explicitly prohibiting electronic 

communications “early and often” in the course of a trial. Id. at 240–41.

D. Application of Jury Misconduct Principles to this Case.

1. Proper standard for appellate review. We first address the 

question of the proper standard of review in this case. The parties dispute 

whether the standard of review should be de novo or for abuse of 

discretion.

When a party seeks a mistrial under our rules designed to ensure a 

fair trial, but does not mention any provision of the Iowa or United States 

Constitution, we have not yet decided whether the proper approach is 

de novo review. In Webster, we reserved the question for another day in 

light of our general agreement with the fact-finding of the district court. 

Id. at 231 n.4.

We have broadly stated many times and in many contexts that when

constitutional issues are involved, the standard of appellate review of factfinding by the district court is de novo. See, e.g., State v. Green, 896 

N.W.2d 770, 775 (Iowa 2017) (jury instruction impacting constitutional 

rights); State v. Kennedy, 846 N.W.2d 517, 520 (Iowa 2014) (Confrontation 

Clauses under Federal and Iowa Constitutions); Gartner v. Iowa Dep’t of 

Pub. Health, 830 N.W.2d 335, 344 (Iowa 2013) (constitutionality of statutes 

or administrative rule); State v. Mootz, 808 N.W.2d 207, 214 (Iowa 2012) 

(state and federal equal protection in context of Batson challenge); State v. 

Decker, 744 N.W.2d 346, 353 (Iowa 2008) (Iowa due process and Fifth 
55

Amendment right to counsel in custodial interrogation); State v. 

Leutfaimany, 585 N.W.2d 200, 203 (Iowa 1998) (Iowa due process and 

Fifth Amendment right to a fair trial); State v. Morgan, 559 N.W.2d 603, 

606 (Iowa 1997) (uncounseled and coerced guilty plea); State v. Dawdy, 

533 N.W.2d 551, 553 (Iowa 1995) (search and seizure); State v. Schultzen, 

522 N.W.2d 833, 835–36 (Iowa 1994) (right to public trial). De novo review 

of constitutional issues is necessary because constitutional rules “acquire 

content only through application” and “[i]ndependent review is therefore 

necessary if appellate courts are to maintain control of, and to clarify, the 

legal principles.” Ornelas v. United States, 517 U.S. 690, 697, 116 S. Ct. 

1657, 1662 (1996). Further, de novo review of constitutional issues “tends 

to unify precedent” and thus provides better insight into whether a 

particular circumstance constitutes a constitutional violation. Id.

The rules implicated in this case are designed to implement the 

constitutional demands of due process. If claims alleging violation of a 

constitutional right merit de novo review, the same reasons suggest 

de novo review may be appropriate for claims involving rules implementing 

constitutional rights. Mere incantation of constitutional phrases need not 

control our standard of review.

Still, in prior cases, we have reviewed with deference decisions on 

claims raised under the rules of criminal procedure. For instance, as the 

State points out, in State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017), 

“[w]e review[ed] a district court’s application of the procedural rules 

governing speedy trial for correction of errors at law” and “[w]e review[ed] 

a district court’s determination whether the State carried its burden to 

show good cause for the delay for abuse of discretion.” In another case 

cited by the State, State v. Clark, 464 N.W.2d 861, 864 (Iowa 1991), we 

reviewed a challenge to a district court’s refusal to grant separate trials 
56

under our rules of criminal procedure and explained that “[w]e will reverse 

a trial court’s refusal to grant a motion for separate trials only if a 

defendant demonstrates an abuse of discretion.” Yet in neither case did 

the parties challenge the standard of review; in both cases the parties 

agreed a deferential standard of review applied. See Brief for Appellant at 

25–26, State v. McNeal, 897 N.W.2d 697 (Iowa 2017) (No. 15–1606); Brief 

for Appellee at 14, State v. McNeal, 897 N.W.2d 697 (Iowa 2017) (No. 15–

1606); Brief for Appellant at 13, State v. Clark, 464 N.W.2d 861 (Iowa 1991)

(No. 89–1355); Brief for Appellee at 8, State v. Clark, 464 N.W.2d 861 (Iowa 

1991) (No. 89–1355).

In the context of jury misconduct and jury bias, a number of courts 

have seen fit to review ultimate determinations with less deference than 

ordinarily applied in motions for new trial. For instance, Judge Posner 

held,

We review the district court’s findings of fact under the clearly 

erroneous standard. However, because the ultimate factual 

determination of impartiality depends on inferences of effect 

drawn from the subsidiary facts, we believe a more critical 

review of the district court’s ultimate finding of fact is 

appropriate in this context than in other situations.

Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir. 1984). The Fourth Circuit 

applies substantially the same standard:

The final question is whether the improper contact or 

communication compromised the impartiality of the jury. 

Ordinarily, the grant of a new trial is committed to the sound 

discretion of the district court. However, because the ultimate 

factual determination regarding the impartiality of the jury 

necessarily depends on legal conclusions, it is reviewed in 

light of all the evidence under a “somewhat narrowed,” 

modified abuse of discretion standard giving the appellate 

court “more latitude to review the trial court’s conclusion in 

this context than in other situations.”

Cheek, 94 F.3d at 140 (citation omitted) (quoting Haley, 802 F.2d at 1532,

1537 nn.11–12).
57

Other jurisdictions, however, afford more deference to a trial court’s 

determination. In the Eighth Circuit, “[t]he district court has broad 

discretion in handling allegations of juror misconduct and its decision will 

be affirmed absent an abuse of discretion.” United States v. Williams, 77 

F.3d 1098, 1100 (8th Cir. 1996). In Connecticut, allegations of juror bias 

or misconduct are reviewed for an abuse of discretion because “[a]ny 

assessment of the form and scope of the inquiry that a trial court must 

undertake when it is presented with [such] allegations . . . will necessarily 

be fact specific.” State v. Brown, 901 A.2d 86, 89 (Conn. App. Ct. 2006)

(quoting State v. Sinvil, 876 A.2d 1237, 1245 (Conn. App. Ct. 2005)).

We need not resolve this issue in this case. As in Webster, 865 

N.W.2d at 231 n.4, we generally agree with the fact-finding of the district 

court. Therefore, the result in this case does not depend on the standard 

of review. This approach is consistent with State v. Martin, 877 N.W.2d 

859, 865 n.4 (Iowa 2016), where we left for another day the question of 

whether claims under our rules designed to protect a defendant’s right to 

a fair trial give rise to de novo review when the defendant fails to make a 

constitutional claim.

2. Presumption of prejudice. We must next determine whether there 

is an irrebuttable presumption of prejudice. We note Justice O’Connor’s 

concurring opinion in Phillips that under the Sixth Amendment there 

might be occasions where the facts are sufficiently egregious to require an 

irrebuttable presumption. 455 U.S. at 222–24, 102 S. Ct. at 948–49 

(O’Connor, J., concurring). And we do not regard our Iowa caselaw as 

necessarily foreclosing an irrebuttable presumption in the appropriate 

circumstances. But we do not find the present case involving a relatively 

vague and unspecific rumor of a potential riot briefly discussed by jurors 
58

sufficient to give rise to an irrebuttable presumption of the kind suggested 

by Justice O’Connor.

Having concluded that there is no irrebuttable presumption of 

prejudice under the facts of this case, there remains the possibility of 

applying a rebuttable presumption as in Remmer, 347 U.S. at 229, 74 

S. Ct. at 451, and as still applied by a majority of the federal courts. There 

is caselaw suggesting that this type of Remmer presumption is particularly 

appropriate in jury tampering cases. For instance, in Dutkel, 192 F.3d at 

894–95, 899, the Ninth Circuit suggested that in jury tampering cases, the 

Remmer presumption should apply and the state should have to meet a 

heavy burden to prove that the tampering was not prejudicial.

Based on our review of the trajectory of the cases of the Supreme 

Court and the federal circuits, we believe that Remmer may have some 

remaining vitality under the Federal Constitution as a rebuttable 

presumption in certain circumstances. And of course, we can apply such 

a presumption under article I, sections 9 and 10 of the Iowa Constitution. 

In this case, however, we are not dealing with direct jury tampering or 

bribery efforts by third parties. Instead, we are dealing with jurors who 

learned about a vague and generalized report on social media that some 

unknown persons might engage in a riot related to the trial in question. 

Dutkel does not provide much aid to Christensen on the facts of this case. 

We agree with the courts taking the position that the Remmer-type

presumption is for “more than innocuous interventions.” Stephens, 848 

F.2d at 486 (quoting Haley, 802 F.2d at 1537 n.9); see Lloyd, 269 F.3d at 

238; Lamons, 340 S.E.2d at 184. While Remmer may have some remaining 

vitality under federal and state law, we do not think it applies to the facts 

of this case.
59

We also do not find that the principles in Carey, 165 N.W.2d at 28–

30, or Omaha Bank, 305 N.W.2d at 461–62, are applicable in this case. It 

was poor judgment for the clerk and county attorney to post its message 

in the jury room that the coffee was being provided by them. 165 N.W.2d 

at 30. Although hardly constituting a bribe of the kind that might sway 

juries, it did send an informal message that the county attorney and 

members of the jury were on the same team. See id. The Carey court 

clearly wanted to send a contrary message that even this small 

accommodation from a party to litigation had no place in our court system 

where the appearance of fairness is extremely important. See id. It is not 

at all clear that but for other trial errors, the Carey court would have 

reversed the conviction. See id.

In Omaha Bank, the challenged conduct involved a juror buying 

drinks for lawyers and having extended conversation with the lawyers in 

the midst of trial at a restaurant bar. 305 N.W.2d at 461. The Omaha 

Bank court condemned the lawyers for attempting to ingratiate themselves 

to a juror by accepting drinks and engaging in extended conversation with 

the juror at the bar. Id. at 461–63. In the case presently before us, there 

was no similar misconduct by a party or a party’s representatives.

3. Requirements of prejudice. On the question of prejudice, the 

caselaw is generally divided regarding the standard of prejudice required 

in extraneous influence cases. Many federal extraneous influence cases 

recite a possibility-of-prejudice test, while others embrace a more 

demanding reasonable-probability test. In Cullen, a case involving the 

internal workings of the jury, we adopted a higher reasonable-probability

test. 357 N.W.2d at 27. We have repeatedly applied the reasonableprobability test in a variety of settings. See, e.g., State v. Atwood, 602 

N.W.2d 775, 778–80 (Iowa 1999) (holding that a judge’s communication of 
60

threat made to all participants in the case, including the jury, is subject 

to a reasonable likelihood or reasonable probability of prejudice test); State 

v. Henning, 545 N.W.2d 322, 324–25 (Iowa 1996) (holding that extrarecord information about defendant’s prior criminal offenses sufficiently

prejudicial to meet reasonable-probability test). We apply the reasonableprobability test of Cullen today.

We also note that our prior cases adopt the view that juror 

statements about the impact of the improperly introduced influence are 

not admissible on the question of prejudice. Johnston, 476 N.W.2d at 34; 

Carey, 165 N.W.2d at 30. What can be considered is objective facts—who 

said what to whom and when and what specifically was injected into the 

jury discussion. But juror assessments about the impact of the improper 

extraneous influence are off limits. Johnston, 476 N.W.2d at 34; Carey, 

165 N.W.2d at 30; see also Greer, 285 F.3d at 173; Calbas, 821 F.2d at 

896 n.9; Wiser, 732 P.2d at 1142; Buchholz, 366 N.W.2d at 840.

Finally, we recognize that in determining fair trial issues, one 

improperly influenced juror is sufficient to require reversal. Parker, 385 

U.S. at 365–66, 87 S. Ct. at 471; Webster, 865 N.W.2d at 237 n.7. We 

should not be distracted by a numbers game regarding how many jurors 

heard what and when they heard it. See, e.g., Lawson, 60 F.3d at 613; 

Delaney, 732 F.2d at 643; Tillman, 406 F.2d at 937. The issue instead 

should be focused on the question of whether any juror or jurors have 

been shown to be improperly influenced such that a conviction based on 

a verdict in which the juror or jurors participated simply cannot be upheld.

4. Determination of prejudice issue. We focus our analysis on the 

question of prejudice. In doing so, we agree with the approach of courts 

that consider multiple factors in determining the question of prejudice. 

Lloyd, 269 F.3d at 240; Dickson, 849 F.2d at 406; Kilgore, 240 P.3d at 656.
61

Based on our review of the record, we conclude that Christensen 

failed to show a reasonable probability that the verdict of the jury would 

have been different if the extraneous influence did not reach the jury in 

this case. Cullen, 357 N.W.2d at 27. Here, the threat of a riot reported to 

the juror and the jury was vague, was not directed at any juror, and was 

merely a hearsay statement about what purportedly appeared in social 

media. Every reasonable juror knows that a wide variety of vacuous claims 

and statements may appear on social media without the slightest veracity. 

In addition, there was no objective support for the threat of a riot in the 

record except the vague hearsay report of a Facebook comment.

There was evidence that the vague report to the jury about a 

Facebook posting mentioning a riot was only briefly discussed by the jury. 

There was no evidence of an extended discussion. See Dickson, 849 F.2d 

at 406. Further, though the discussion about a riot appears to have 

occurred prior to the jury actually reaching a verdict, the record suggests 

that the discussion likely may have occurred after the jury reached its 

verdict but prior to announcing it in open court. See id. There was 

certainly no persuasive specific evidence that the rumors of a potential riot 

were discussed at a critical stage in the jury’s deliberation. See id. Finally, 

there was nothing extraordinary about the jury verdict of second-degree 

murder in this case, a verdict that was well within the evidence presented 

at trial. See Kilgore, 240 P.3d at 656; United States v. Sanders, 962 F.2d 

660, 673 (7th Cir. 1992). There is no objective reason to consider the jury 

verdict as motivated by fear from a vague speculative hearsay report on 

Facebook about a possible riot.

We recognize that at least some members of the jury did express 

concern about safety at the courthouse and asked for a police escort to 

their cars. Another asked for an officer to patrol the juror’s home. These 
62

protective measures after a controversial trial show a degree of common 

sense but do not make a persuasive per se case that the jury’s verdict was 

likely influenced by the vague hearsay riot rumors. See State v. Napulou, 

936 P.2d 1297, 1304 (Haw. Ct. App. 1997).

Although each case will turn on its specific facts, the result we reach 

here is not inconsistent with other caselaw. For instance, in Wallace v. 

United States, 412 F.2d 1097, 1102 (D.C. Cir. 1969), jurors were 

interviewed in chambers after a newspaper article detailed certain death 

threats against the jurors. The jurors’ responses convinced the district 

court that they could continue to serve as impartial jurors. Id. Similarly, 

in Napulou, the court upheld a district court determination that a new trial 

was not required after the jurors felt intimidated upon being followed by 

the defendant’s family members, a setting far more troubling than that 

presented in this case. 936 P.2d at 1304.

Christensen cites two cases in which the potential for public violence 

led to a change in venue. Powell, 283 Cal. Rptr. at 787; Lozano, 584 So. 2d 

at 22. We find these cases inapposite. They are pretrial change of venue 

cases in which there had been massive publicity and substantial threats 

of violence had arisen from the underlying incidents. We do not find them 

instructive on the case at hand.

Based on the above reasoning, we conclude that Christensen has 

failed to meet the Cullen test of showing a reasonable probability that the 

jury would have come to a different conclusion if it had not received the 

vague and speculative extraneous information about a potential riot.

E. Jury Bias. Christensen notes in passing that the district court 

erred in concluding that implied bias did not warrant a new trial. 

Christensen supports his claim of implied bias by pointing to the testimony 

of a juror claiming that two jurors saw Facebook posts threatening the 
63

jurors themselves. He also notes that the jurors were aware of the 

heightened community awareness surrounding the case.

In Webster, 865 N.W.2d at 236, we explained that juror bias may be 

actual or implied. “Actual juror bias occurs when the evidence shows that 

a juror, in fact, is unable to lay aside prejudices and judge a case fairly on 

the merits.” Id. “Implied bias arises when the relationship of a prospective 

juror to a case is so troublesome that the law presumes a juror would not 

be impartial.” Id. “Implied bias has been found to arise, for instance, 

when a juror is employed by a party or is closely related to a party or 

witness.” Id. A jury consisting of even one biased juror is constitutionally 

infirm. Id. at 237 n.7.

We decline to find implied bias on the facts here. The ostensible 

threat to the jury attested by one juror is hearsay-upon-hearsay. That fact

in tandem with the fact that other jurors generally testified to threats of 

riots rather than of violence against the jury, leads us to doubt the 

reliability of the attestation. See State v. Evans, 169 N.W.2d 200, 205 

(Iowa 1969) (“Multiple hearsay is, of course, even more vulnerable to all 

the objections which attach to simple hearsay.”).

Similarly, we do not find that the other threats of violence which 

reached the jury give rise to implied bias. As noted, these threats were 

vague, not directed at any juror, and only briefly discussed by the jurors 

in the jury’s deliberation.

Finally on the facts here, we disagree with Christensen’s contention 

that the heightened community awareness surrounding this case, and 

jurors’ general knowledge thereof, gives rise to implied bias. It is certainly 

possible that a juror’s connection to the circumstances of a case or the 

community response can give rise to implied bias. See, e.g., Leonard v. 

United States, 378 U.S. 544, 544–45, 84 S. Ct. 1696, 1696 (1964) (per 
64

curiam) (finding implied bias where jurors in a second case against 

Leonard were selected from a group which heard a guilty verdict in the 

first case). But here, various members of the community were on either 

sides of the guilt question, and through the voir dire process, potential 

jurors were stricken for cause after expressing opinions both favorable and 

unfavorable to Christensen. Christensen points to no facts concerning 

any of the jurors’ connection to the community response besides their 

membership in the community. Without an indication that a juror had 

such a close connection to the circumstances of the case or the community 

response that the juror would be unable to render a fair verdict, we cannot 

make a finding that any juror or the jury was tainted by implied bias. See 

Webster, 865 N.W.2d at 236. Perhaps given the verdict, Christensen 

regrets not having moved for a change of venue, but he cannot remedy the 

consequences of that choice through an attack on the jury that has been 

selected after a thorough pretrial voir dire process.

V. Conclusion.

For the above reasons, the district court judgment is affirmed and 

the court of appeals decision is vacated. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT AFFIRMED.

All justices concur except Waterman, Mansfield, and Christensen, 

JJ., who concur specially, and McDonald, J., who takes no part.
65

#17–0085, State v. Christensen

WATERMAN, Justice (concurring specially).

I concur in the court’s opinion except for its discussion of the 

standard of review for the denial of a motion for new trial based on juror 

bias or misconduct. I write separately to emphasize that today’s decision 

refraining from deciding the standard of review in this appeal does not 

overrule our precedent or change the governing law, nor is a change 

warranted from our review for abuse of discretion. 

Indeed, in affirming the district court’s ruling that extraneous 

influences on the jury did not warrant a new trial, the majority applies 

the proper test from State v. Cullen, 357 N.W.2d 24, 27 (Iowa 1984), 

abrogated on other grounds by Ryan v. Arneson, 422 N.W.2d 491, 495 

(Iowa 1988). Citing Cullen, the majority reaches the right result, stating, 

“Based on our review of the record, we conclude that Christensen failed 

to show a reasonable probability that the verdict of the jury would have 

been different if the extraneous influence did not reach the jury in this 

case.” But the majority fails to acknowledge the standard of review 

applied in Cullen, which emphasized the “[t]rial court has a broad 

discretion in ruling on these matters. ‘We do not find an abuse of 

discretion . . . unless the action of the trial court is clearly unreasonable 

under the attendant circumstances.’ ” Id. at 27 (quoting State v. 

Harrington, 349 N.W.2d 758, 761 (Iowa 1984), abrogated on other 

grounds by Ryan, 422 N.W.2d at 495). 

In Doe v. Johnston, we declined an invitation to change this standard 

and explained the reasons for our deference to the trial court when 

extraneous material reaches the jury. 476 N.W.2d 28, 35 (Iowa 1991). 

Plaintiffs urge us to retreat from this standard and 

adopt, instead, a rule whereby prejudice is presumed to result 

from the introduction of extraneous material. We decline the 
66

invitation to do so. A certain amount of leeway must be built 

into the system so that a relatively minor incident of 

misconduct is not allowed to disrupt what may have been a 

lengthy, costly, and otherwise fair trial. We are still convinced 

that the trial court is in the best position to objectively assess 

the impact of juror misconduct. 

Applying this objective standard to the present case, we 

find the court was well within its discretion in denying 

plaintiffs’ motion for new trial. 

Id. This reasoning is even more compelling today because the proliferation 

of social media increases the chances for juror exposure to extraneous 

material. 

The majority fails to provide a persuasive reason to change the 

standard of review now. We have long held that rulings on motions for 

new trial or mistrial based on juror misconduct or bias are reviewed for an 

abuse of discretion. See, e.g., State v. Gathercole, 877 N.W.2d 421, 427 

(Iowa 2016) (“We review the district court’s refusal to grant a mistrial [for 

juror bias] for an abuse of discretion.”); Fry v. Blauvelt, 818 N.W.2d 123, 

128 (Iowa 2012) (“If the motion [for a new trial] is based on a discretionary 

ground such as misconduct it is reviewed for an abuse of discretion.” 

(alteration in original) (quoting Loehr v. Mettille, 806 N.W.2d 270, 277 (Iowa 

2011))); State v. Smith, 573 N.W.2d 14, 17 (Iowa 1997) (“We apply an abuse 

of discretion standard when reviewing the district court’s rulings on juror 

misconduct claims . . . .”); State v. Johnson, 445 N.W.2d 337, 340–41 (Iowa 

1989) (noting trial court’s “broad discretion in ruling on” motions for new 

trial based on juror bias or misconduct), overruled on other grounds by

State v. Hill, 878 N.W.2d 269, 275 (Iowa 2016); State v. Hendrickson, 444 

N.W.2d 468, 472 (Iowa 1989) (holding district “court did not abuse its 

discretion in denying defendant’s motions” challenging allegedly biased 

juror); State v. Powell, 400 N.W.2d 562, 565 (Iowa 1987) (“A trial court has 

broad discretion in matters involving alleged jury misconduct, and an 
67

abuse of that discretion will not be found unless the action of the trial 

court is clearly unreasonable under the circumstances.”); State v. 

Christianson, 337 N.W.2d 502, 504 (Iowa 1983) (“Trial courts possess 

‘broad discretion’ in deciding whether evidence of alleged jury misconduct 

warrants a new trial.” (quoting State v. Cuevas, 288 N.W.2d 525, 535 (Iowa 

1980)); Harris v. Deere & Co., 263 N.W.2d 727, 729 (Iowa 1978) (“Trial 

courts have broad discretion in ruling on motions predicated on jury 

misconduct.”), superseded on other grounds by rule, Iowa R. Evid. 606(b), 

as recognized in Ryan, 422 N.W.2d at 495; State v. Houston, 209 N.W.2d 

42, 44–45 (Iowa 1973) (noting the “[t]rial court has broad discretion in 

determining whether evidence of claimed jury misconduct justifies a new 

trial” and its ruling “will not be set aside on appeal except upon showing 

an abuse of such discretion”). This law is well settled and should stay that 

way. 

But seeds of confusion were planted when we addressed the 

standard of review in State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015). 

Under the heading “Standard of Review,” we accurately stated Iowa law 

as follows: “We review a denial of a motion for a new trial based upon juror 

misconduct or juror bias for an abuse of discretion.” Id. Yet we muddied 

the waters in a footnote, stating, 

There is a question of the proper standard of review regarding 

fact-finding performed by the district court in the context of a 

motion for a new trial. There is authority in other jurisdictions 

that fact-finding made by the district court in considering a 

motion for a new trial is subject to review under a clearly 

erroneous standard. 

Id. at 231 n.4. This footnote cited a single case for that proposition, State 

v. Dellinger, 696 S.E.2d 38, 42 (W. Va. 2010) (per curiam). The Dellinger
68

court described its standard of review as “deferential” to the trial court. Id.

at 42. 

In reviewing challenges to findings and rulings made by a 

circuit court, we apply a two-pronged deferential standard of 

review. We review the rulings of the circuit court concerning 

a new trial and its conclusion as to the existence of reversible 

error under an abuse of discretion standard, and we review 

the circuit court’s underlying factual findings under a clearly 

erroneous standard. Questions of law are subject to a de novo

review. 

Id. (quoting State v. Vance, 535 S.E.2d 484, 487 (W. Va. 2000)). Thus, the 

trial court’s factual findings would be affirmed unless clearly erroneous—

a far cry from appellate de novo review. 

Dellinger thus offers no support for de novo review of fact-finding for 

juror bias or misconduct. The Webster footnote, however, went on to cite 

a search and seizure case for the unremarkable proposition that we apply 

de novo review to fact-finding on constitutional claims. 865 N.W.2d at 231 

n.4. By suggesting a connection between two separate lines of authority, 

the footnote purported to create an issue where none existed, concluding, 

“In this case, we do not resolve the issue because we generally agree with 

the fact-finding of the district court.” Id. What issue? We should not 

compare apples and oranges. De novo review of constitutional issues has 

long coexisted with our deferential review of judgment calls trial courts 

make on a wide variety of rulings. There arguably is a constitutional 

dimension to any ruling during a criminal trial, but that does not mean we 

should now start reviewing all trial rulings de novo. I would not start here. 

After Webster, we revisited the issue of juror bias claims arising from 

inaccurate midtrial publicity in Gathercole and squarely held our review is 

for an abuse of discretion. 877 N.W.2d at 427. In Gathercole, while an 

attempted murder trial was ongoing, a local newspaper inaccurately 
69

reported in an online article that the police had recovered the defendant’s 

palm print at the crime scene. Id. at 425. The defendant moved for a 

mistrial or, alternatively, to poll the jury to determine if jurors saw the 

article. Id. The district court denied the motions, and the defendant was 

convicted and appealed. Id. at 426. We concluded the district court did 

not abuse its discretion in denying the motions for mistrial and jury 

polling. Id. at 432–33. 

Despite our well-settled law on the standard of review, Christensen’s 

counsel took the hint buried in the Webster footnote and argues for 

de novo review. Our court today takes the same approach as in Webster, 

stopping short of deciding “the issue” over the standard of review because 

of general agreement with the district court’s factual findings. Yet the 

court adds a lengthy discussion likely to cause further confusion, 

unnecessary detours, and wasted court time. The bottom line is that 

neither Webster nor today’s decision overrules our precedent holding 

abuse of discretion is the proper standard of review for juror-bias and 

misconduct cases. 

The majority also overlooks our long-standing precedent that the 

district court’s factual findings on juror bias or misconduct are binding on 

the appellate court when the findings are supported by substantial 

evidence. See Hutchinson v. Fort Des Moines Cmty. Servs., Inc., 252 Iowa 

536, 543, 107 N.W.2d 567, 571 (1961) (“Where the facts on which a claim 

of misconduct is based are in dispute we will not interfere with the trial 

court’s determination of the matter if supported by substantial evidence. 

Such determination has about the same force as a jury verdict.” (quoting 

Hackaday v. Brackelsburg, 248 Iowa 1346, 1352, 85 N.W.2d 514, 517–18 

(1957))); see also Iowa R. App. P. 6.904(3)(a) (“Findings of fact in a law 

action . . . are binding upon the appellate court if supported by substantial 
70

evidence.”); State v. Gomez Garcia, 904 N.W.2d 172, 177 (Iowa 2017) 

(“ ‘[A]buse of discretion occurs when a district court exercises its discretion 

on grounds or for reasons clearly untenable or to an extent clearly 

unreasonable.’ ‘A ground or reason is untenable when it is not supported 

by substantial evidence or when it is based on an erroneous application of 

the law.’ ” (alteration in original) (first quoting State v. Wilson, 878 N.W.2d 

203, 210–11 (Iowa 2016); then quoting Graber v. City of Ankeny, 616 

N.W.2d 633, 638 (Iowa 2000))). No one claims the district court’s factual 

findings in this case were not supported by substantial evidence. 

Neither Christensen nor today’s majority opinion cite a single case 

from any jurisdiction applying de novo review to fact-finding on juror bias 

or misconduct. We should not create an issue when none exists. Going 

forward, the standard of review for such cases should remain what it has 

been for generations—abuse of discretion. 

We have long adhered to the abuse-of-discretion standard because 

of the trial judge’s superior vantage point. The trial judge presides over 

the trial, with a front row seat for the testimony. See Mays v. C. Mac 

Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992) (“The trial court has 

before it the whole scene, the action and incidents of the trial as they 

occur, and is in a much better position to judge whether the defendant 

has been prejudiced by misconduct of opposing counsel, if there is 

such. . . . The trial court occupies a position of vantage and is rightly given 

a considerable discretion in determining whether prejudice has resulted.” 

(alteration in original) (quoting Baysinger v. Haney, 261 Iowa 577, 582, 

155 N.W.2d 496, 499 (1968))). When jurors are questioned, the trial judge 

observes their demeanor firsthand. The trial judge is far better positioned 

than an appellate court reading a cold transcript to decide whether what 
71

a juror said, did, or heard improperly influenced the verdict. The trial 

judge can read the room in real time. 

The United States Court of Appeals for the Fourth Circuit recently 

reiterated the rationale for this deferential review: “As the trial judge is in 

the best position to make this determination [regarding juror bias], the 

inquiry is committed to his discretion, including ample leeway to formulate 

the questions to be asked.” United States v. Smith, 919 F.3d 825, 834 (4th 

Cir. 2019). De novo review cedes too much control to an appellate court 

ill-suited to wield it. The Fourth Circuit aptly determined, “Th[e] trial judge 

made reasoned judgments [to detect juror bias]. And we are not here to 

micro-manage those considered choices.” Id. The same is true here. 

For these reasons, I am unable to join the majority’s discussion of 

the standard of review. I otherwise concur in the opinion. 

Mansfield and Christensen, JJ., join this special concurrence.