Outside Influence and Juror Misconduct During Trial

What Counts as Juror Misconduct or Outside Influence?

The juror misconduct that can support a mistrial involves an outside influence reaching the jury during trial: an outsider talking to a juror about the case, a juror doing independent research, visiting the scene, or absorbing media coverage. The concern is information or pressure from outside the jury room, not the ordinary disagreement that happens inside it.

That distinction is fundamental. A jury is supposed to decide the case on the evidence admitted in court and nothing else. When extra-record information reaches a juror, the parties lose their chance to confront, cross-examine, or rebut it, and the trial’s basic fairness is compromised. Classic examples include a family member or bystander discussing the case with a juror, a juror searching the internet for facts about the defendant or the law, a juror driving out to inspect the scene, or a juror reading news coverage the court told the panel to avoid. In the most serious cases, an outsider attempts to bribe, threaten, or tamper with a juror.

By contrast, disagreements and mistakes inside the jury room are generally not the kind of misconduct that supports a mistrial. Jurors are allowed to argue, to change their minds, to misunderstand the evidence, and to reason imperfectly; those are features of deliberation, not outside influences. Texas law protects the secrecy of that internal process, which is why, as later sections explain, the rules sharply limit what a juror may later be asked to reveal. The line that matters is between the external — which the court can investigate and remedy — and the internal, which it largely cannot.

Article 36.22 and the Presumption of Harm

Article 36.22 is the Texas statute at the center of juror-communication cases. It forbids anyone from being with a jury while it deliberates and from conversing with a juror about the case except in the court’s presence and with its permission. Once a defendant proves a violation, Texas law presumes the accused was harmed.

The statute’s purpose, the Court of Criminal Appeals has said, is to insulate jurors from outside influence. When the defendant shows that an unauthorized person conversed with a juror about the case, the law does not make him prove actual damage. Instead, as Ocon v. State and Jenkins v. State hold, a proven violation of article 36.22 triggers a rebuttable presumption of injury to the accused, and a mistrial may be warranted. The burden then shifts to the State to rebut that presumption.

Rebutting it is a fact-intensive exercise. The State typically must show that the conversation did not actually touch the substance of the case, or that it could not have influenced the juror — for example, that a juror merely overheard a brief, non-substantive exchange and confirmed it would not affect deliberations. Because the trial judge sees the witnesses and assesses credibility, a reviewing court views the evidence in the light most favorable to the ruling and defers to the trial court’s findings on what happened and whether the juror was affected.

The two-step structure — defendant proves the violation, then the State must overcome the presumption — is what gives the defense meaningful leverage. It shifts the risk of an unexplained or unrebutted juror contact onto the State, which is the party that benefits when a tainted verdict stands.

The Remmer Hearing: Investigating the Contact

When a private communication with a juror surfaces, federal constitutional law treats it as presumptively prejudicial and requires the court to investigate on the record. The trial judge cannot quietly resolve the matter alone; the Supreme Court’s decision in Remmer requires a hearing with both sides present. Texas courts follow the same investigative approach.

In Remmer v. United States, the Court held that any private communication, contact, or tampering with a juror during trial about the matter pending before the jury is deemed presumptively prejudicial. The presumption is not conclusive, but the burden rests heavily on the government to establish, after notice to the defendant and a hearing, that the contact was harmless. Critically, the Court held that the trial judge should not decide and take final action ex parte; instead, the judge must determine the circumstances, the impact on the juror, and whether it was prejudicial in a hearing where all interested parties can participate.

That hearing is the practical mechanism for everything else on this page. It is where the court establishes what was said, who said it, whether it concerned the case, and whether the juror can still be fair. It is also where the defense develops the factual record that later supports — or defeats — a motion for mistrial. Remmer even warned that the manner of investigating a juror can itself be prejudicial, cautioning that heavy-handed inquiry, such as sending an investigator to confront a juror mid-trial, is apt to impress the juror unduly.

For the defense, the right move when a contact comes to light is to ask the court for a Remmer-style hearing before anything else, so the record is built with both sides present rather than through an off-the-record conversation the defense cannot test.

What Jurors May Reveal: Rule 606(b)

Texas Rule of Evidence 606(b) controls what a juror may later testify about. Jurors may testify that an outside influence was improperly brought to bear on the jury — an outsider’s communication or a juror’s own independent research — but they may not testify about the jury’s internal deliberations or any juror’s mental processes.

The Court of Criminal Appeals defined the key term in McQuarrie v. State: an outside influence is something originating from a source outside the jury room and other than from the jurors themselves. Applying that definition, the court held that a juror’s private internet research, conducted at home during an overnight break, was an outside influence because the information came from a source other than the jurors. Jurors may therefore testify about the existence and nature of that research, provided the inquiry does not delve into the jury’s deliberations. The court measures prejudice objectively, asking whether the outside information had a reasonable potential to affect a hypothetical average juror.

This boundary explains why juror-misconduct claims live or die on the external facts. Counsel can prove that outside information reached the jury and what that information was, but cannot pry into how individual jurors thought about it — so the case is built on the nature of the intrusion, not on second-guessing the verdict itself.

Mistrial Versus Less Drastic Remedies

Even proven misconduct does not automatically end the trial. Because a mistrial is an extreme remedy reserved for a narrow class of incurable problems, Texas courts grant it only when residual prejudice remains after less drastic alternatives have been explored. Often a curative instruction, targeted questioning, or an alternate juror can solve the problem.

Ocon set out the ladder of remedies. A mistrial is an appropriate remedy only in extreme circumstances, and it should be granted only when residual prejudice remains after less drastic alternatives are explored. Those alternatives, the court explained, include instructing the jury to consider as evidence only the testimony and exhibits admitted through witnesses on the stand and, if an instruction alone will not cure the problem, questioning the jury about the extent of any prejudice. Jenkins applied the same framework to unauthorized juror text messages, upholding the trial court’s use of lesser measures instead of a mistrial.

The remedy that fits depends on how far the influence spread and how serious it was. A single juror who glanced at a news headline may be cured by an instruction or replaced with an alternate; a panel saturated with outside information about the defendant’s history may leave residual prejudice that only a mistrial can address. The defense’s task is to show the court that the lesser measures cannot realistically restore an impartial jury.

Trial Publicity, Social Media, and the Modern Juror

Modern juror misconduct increasingly runs through a phone. A juror who searches the defendant’s name, reads news coverage, posts about the trial, or connects online with a participant has let outside information into the case. Texas courts analyze these episodes as outside influence, but their ease makes prevention and prompt detection essential.

Trial courts routinely instruct jurors not to research the case, discuss it online, or read media coverage, and for good reason. Under McQuarrie, a juror’s independent internet research is an outside influence, and the same logic reaches a juror who reads news articles the panel was told to avoid or who looks up the defendant, a witness, or an unfamiliar legal term. The information enters the jury from a source other than the evidence, and the parties never get to test it.

Social media adds a communication dimension. A juror who friends, follows, messages, or comments to a witness, a party, or a lawyer has done more than gather information — the juror has communicated with a participant about the case, implicating the same concerns article 36.22 addresses. Posting about the trial can also draw responses from outsiders, pulling outside reactions into the jury’s thinking.

Detection is the hard part, because this conduct happens on personal devices outside the courtroom. It usually surfaces when another juror reports it, when a courtroom observer notices a post, or when a juror volunteers a fact that never came from the witness stand. However it comes to light, the response is the framework covered above: the court holds a hearing to learn what happened, limits juror testimony to the outside influence rather than the deliberations, and works up the remedy ladder from instruction to questioning to an alternate juror, reserving a mistrial for residual prejudice that cannot be cured.

Prevention is better than cure. Clear, repeated admonishments — and, in serious cases, collecting phones during deliberations — reduce the risk, but when an intrusion does occur, prompt notice to the court is what preserves the client’s right to an impartial jury.

Preserving and Proving Juror Misconduct

Juror-misconduct claims impose real burdens on the defense. The defendant must first prove the violation occurred, and it is the moving party — not the court or the State — who must ask that the jurors be questioned. Misconduct found during trial is met with a motion for mistrial; misconduct discovered after the verdict is raised in a motion for new trial.

Ocon described the process as two steps: first, the defendant bears the burden of showing that the statute proscribing the communication was violated; second, once a violation is shown, harm is presumed and the State bears the burden of rebutting it. Ocon also stressed a procedural trap: although requesting a lesser remedy is not a prerequisite to moving for a mistrial, if the defense does not first request the lesser remedy, a reviewing court will not reverse when the problem could have been cured by that less drastic alternative. And it is the movant’s responsibility to request that the jurors be questioned; the court and the State are not obligated to initiate the inquiry.

Timing determines the vehicle. When misconduct comes to light while the trial is ongoing, the defense asks for a hearing and, if the prejudice cannot be cured, moves for a mistrial on the spot. When it surfaces only after the verdict — a juror later admits to research or an outside conversation — the claim is raised in a motion for new trial, where Rule 606(b) again governs what the jurors may be asked.

Practically, that means the defense should act the instant a hint of outside influence appears: alert the court, request a Remmer-style hearing, ask that the affected jurors be questioned within the limits of Rule 606(b), request lesser remedies on the record, and move for a mistrial only after showing that those measures cannot restore a fair jury. Building that record is what preserves the issue and gives an appellate court a basis to find that a denial was an abuse of discretion.

Where This Fits

This guide is one of four situations that arise under the Motion for Mistrial. Start with the parent motion for the overall framework, or move to a related fact pattern:

What the Case Law Says

These decisions—verified against primary sources—control how this issue is litigated. Every case still turns on its own facts.

• Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) — A proven Article 36.22 violation presumes injury, but a mistrial for juror misconduct is granted only after less drastic alternatives fail.
• Remmer v. United States, 347 U.S. 227 (1954) — Any private communication with a juror about the pending case is presumptively prejudicial; the court must hold a hearing with both parties.
• McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim. App. 2012) — A juror's independent internet research is an outside influence under Rule 606(b), and jurors may testify to it.
• Jenkins v. State, 493 S.W.3d 583 (Tex. Crim. App. 2016) — A proven Article 36.22 violation triggers a rebuttable presumption of injury the State must overcome to avoid a mistrial.

General summaries of published opinions for information only — not predictions about any specific case.