{1} In this аppeal, we reconsider and clarify the “presumption of prejudice” that attaches to extraneous juror communications. After reviewing New Mexico case law in light of United States Supreme Court precedent, we conclude that the party moving for a new trial based on extraneous juror communications bears the burden to prove that (1) material extraneous to the trial actually reached the jury, (2) the extraneous material relates to the case being tried, and (3) it is reasonably probable that the extraneous material affected the jury’s verdict or a typical juror. We further conclude that a remand for an evidentiary hearing, rather than a new trial, typically is the appropriate remedy in these cases. Because the affidavits submitted by Donald and Carole Kilgore (Plaintiffs) were sufficient to establish that extraneous material related to the case actually reached one of the jurors in the case, we remand this ease to the trial court for an evidentiary hearing in which Plaintiffs will have an opportunity to prove a reasonable probability of prejudice.
FACTS AND PROCEDURAL HISTORY
{2} On May 19, 2000, Mr. Kilgore was driving a 1998 Subaru Legacy Outback on Highway 84 near Tierra Amarilla, New Mexico.
{3} Plaintiffs sued Fuji Heavy Industries, the designer and manufacturer of the vehicle, and Takata Corporation and Takata Seat Belts, Inc., 1 the designer and manufacturer of the vehicle’s seat belt buckle system, for negligence, breach of warranty, product liability, unfair practices, and loss of consortium. Essentially, Plaintiffs claimed that the vehicle’s seat belt buckle system had been designed, tested, and manufactured improperly, resulting in the risk of accidental, inadvertent, or unintentional unbuckling during a crash or rollover. The jury entered a special verdict in favor of Defendants, and the trial court rendered judgment accordingly.
{4} Plaintiffs subsequently filed a motion for a new trial, claiming, in relevant part, that
Plaintiffs were presumptively prejudiced during trial by juror misconduct, in that a member of the impaneled jury not only failed to disclose during voir dire that her brother is employed as a Subaru mechanic, but further personally obtained the advice of the owner of the Subaru repair garage as to whether seatbelts were prone to inadvertent unbuckling.
In support of their motion, Plaintiffs filed an affidavit by Gregory G. Scott, a paralegal employed by Plaintiffs’ counsel. Scott averred that after the conclusion of the trial he contacted Juror Mariе Millie Valdivia to inquire about the reasons for her verdict.
[Juror Valdivia] said that the [Plaintiffs] had definitely proved that the seat belt buckle could be easily opened with various body parts but there was not enough evidence that the buckle could open in real accidents and therefore she felt the buckle was not defective. [Juror Valdivia and Scott] talked for a few more minutes but she was reluctant to say anything further. She said that her life was very busy and that she did not want to be contacted any further about the case.
{5} Scott subsequently learned that Juror Valdivia’s brother, Michael Lucero, wоrked for a Subaru repair shop, and that Juror Valdivia had engaged in a conversation with the owner of the shop, Michael Griego, in which Griego “told [Juror] Valdivia that he had never heard of a Subaru seat belt buckle opening in an accident.” Scott contacted Griego, who confirmed the conversation and completed an affidavit describing its contents. However, Scott made no further attempt^ to contact Juror Valdivia regarding the conversation because she “had told [him] that she did not want to be contacted any further about the case.”
{6} Griego’s affidavit, which was submitted in support of Plaintiffs’ motion for a new trial, provides as follows:
The affiant, Michael Griego, first being duly sworn deposes and says as follows:
1. My name is Michael Griego. I am an adult and I am competent to make this affidavit. The facts stated in this affidavit are true and are based upon my own personal knowledge.
2. I read an article in the newspaper about the trial in Santa Fe in which a woman was suing Subaru because she was paralyzed in a rollover accident because her seat belt came off. I believe the article was in September of this year.
3. I am the owner of Mike’s Gаrage at 1501 5th St. Santa Fe, New Mexico. My shop only works on Subaru vehicles. Michael Lucero is an employee of my business.
4. Marie Millie Valdivia is Michael Lucero’s sister.
5. Prior to my seeing the newspaper article about the Subaru trial, Ms. Valdivia and I had a conversation. She told me that she was a juror on the Subaru trial. I told her that I had never heard of any incident where a Subaru seat belt buckle had come open accidentally. I told her that I had never heard of that happening.
6. During the conversation, she said to me, at least twice, that she was not supposed to be talking to me about the case.
Plaintiffs argued that Scоtt’s and Griego’s affidavits “establish that [Juror] Valdivia received extraneous information” and that, under New Mexico law, “[t]he Court must therefore presume prejudice” and grant Plaintiffs’ motion for a new trial.
{7} Plaintiffs requested a hearing on their motion for a new trial pursuant to the local rules of the first judicial district. See LR1Form A (Request for Hearing). Additionally, in a cover memorandum accompanying their motion for a new trial, Plaintiffs alerted the trial court to “the possible need for an evidentiary hearing on the juror misconduct issue.” Approximately one month later Plaintiffs filed a second request for a hearing on their motion for a new trial.
{8} The trial court denied Plaintiffs’ motion for a new trial without conducting an evidentiary hearing, finding that “[njothing has been presented to the Court in the [m]otion which convinces the Court that a new trial should be granted.” Plaintiffs appealed from the judgment of the trial court to the Court of Appeals, which determined that the affidavits submitted by Plaintiffs were insufficient to raise a presumption of prejudice under New Mexico law. Kilgore v. Fuji Heavy Indus., Ltd.,
{9} Because Plaintiffs had failed to make the required preliminary showing, the Court further held that “the [trial] court was not required to conduct an evidentiary hearing or to otherwise investigate further.” Id. ¶32. Additionally, the Court concluded that Plaintiffs had failed to rеquest an evidentiary hearing “with any degree of specificity” sufficient to “alert the [trial] court that Plaintiffs wanted an evidentiary hearing specifically on the juror-misconduct issue.” Id. ¶ 33, 35. The Court recognized that “the [trial] court has a duty in the appropriate case to conduct such an evidentiary hearing,” but was “not persuaded that this is the appropriate case or that the court abused its discretion when it did not schedule an evidentiary hearing or otherwise investigate further on the juror-misconduct issue.” Id. ¶ 36.
{10} We granted Plaintiffs’ petition for writ of certiorari pursuant to NMSA 1978, Section 34-5-14(B) (1972) and Rule 12-502 NMRA, to detеrmine whether the Court of Appeals properly applied “the ‘presumption of prejudice’ attaching to improper juror communications established by this Court’s precedents and Remmer v. United States,
{11} “By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict.” Tanner v. United States,
{12} Rule 11-606(B) NMRA, which codified the common law rule regarding the competency of jurors to testify as witnesses, provides that
a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may tеstify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.
“Thus, a juror may testify on the very limited circumstances of whether extraneous prejudicial information was improperly before the jury. Otherwise, the rule prohibits a juror from testifying as to any matter or statement made during the course of deliberations or to the juror’s mental processes.” State v. Mann,
{13} “[T]he underlying issue in cases involving extraneous information is a defendant’s right to a fair and impartial jury.” Id. ¶27; see also State v. McCarter,
{14} We therefore begin our analysis with United States Supreme Court precedent. In Remmer, someone approached the jury foreman during the petitioner’s trial and informed him that “he could profit by bringing in a verdict favorable to the petitioner.”
{15} The United States Supreme Court held that
[i]n a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in рursuance of the known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. 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. at 229,
{16} In Smith v. Phillips, the Court clarified that the remedy for allegations of jury tampering, misconduct, or bias is not an automatic new trial, but rather a “hearing in which [the moving party] has the opportunity to prove actual bias.”
demonstrate that due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rulе, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the ease solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may рroperly be made at a hearing----
Id. at 217,
{17} In United States v. Olano,
{18} In light of Smith and Olano, various jurisdictions have concluded that Remmer’s automatic presumption of prejudice no longer applies to cases involving extraneous juror communiсations. See, e.g., United States v. Williams-Davis,
{19} A review of our case law reveals that, like the United States Supreme Court, the courts of this state have refined and narrowed the presumption of prejudice over time. First, the presumption of prejudice is not automatic in nature; rather, the party moving for a new trial bears the burden to “‘make a preliminary showing that movant
{20} Second, as in Smith and Olano, the appropriate remedy is not a new trial, but rather an evidentiary hearing in which the movant has an opportunity to establish, by competent evidence, “a ‘reasonable possibility’ or a likelihood that the extrinsic communications or conduct would have an effect upon the verdict or upon a typical juror.” Goodloe v. Bookout,
{21} Under the foregoing framework, the burden is on the movant throughout the proceedings to establish that (1) material extraneous to the trial actually reached the jury, (2) the extraneous material relates to the case being tried, and (3) it is reasonably prоbable that the extraneous material affected the jury’s verdict or a typical juror. The courts of this state have characterized this burden as a “preliminary showing” or “threshold question” necessary to invoke the presumption of prejudice. See Mann,
{22} Although our case law has characterized this burden-shifting mechanism as a “presumption of prejudice,” it is clear that, in reality, no presumption actually exists, because the burden remains on the moving party throughout the proceedings to prove the ultimate fact in issue, i.e., that there is a reasonable probability that the extrаneous material affected the verdict or a typical juror. Accordingly, we hereby disavow any further reference to a “presumption of prejudice” in our case law because, in practice, the burden does not shift to the opposing party to disprove prejudice. Additionally, we clarify that the “probability of prejudice” and “likelihood of prejudice” standards are one and the same, although the term “probability of prejudice” is to be preferred, because it more accurately characterizes the moving party’s burden of proof.
{23} The questiоn remains, how can the moving party prove and the trial court assess a probability of prejudice at an evidentiary hearing in which the jurors are precluded from testifying about the actual effect that the extraneous material had upon the jury’s deliberations or its verdict. To determine whether a probability of prejudice exists, the trial court should consider the following relevant inquiries:
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.
See Doe,
{24} With these principles in mind, we turn to the facts of this case to determine whether the trial court properly denied Plaintiffs’ motion for a new trial and request for a hearing. The Griego affidavit establishes that the owner of a Subaru repair shop informed one of the jurors in the case that he had “never heard of any incident where a Subaru seat belt buckle had come open accidentally. [He] told her that [he] had never heard of that happening.” Although it is unclear from the face оf the affidavit who initiated this conversation, it is clear that this information constitutes extraneous material, which actually reached one of the jurors in
{25} We further conclude that the Griego affidavit is sufficient to establish that the extraneous material was relevant to the case being tried. See Jojola,
{26} However, the Court of Appeals held that Plaintiffs had waived their right to an evidentiary hearing by failing to ask “the court with any degree of specificity to investigate, to call jurors in for questioning, or to schedule an evidentiary hearing.” Kilgore,
{27} Alternatively, Defendants argue that an evidentiary hearing is unnecessary because Plaintiffs failed to submit any evidence of actual prejudice, despite three months of post-verdict investigation. We note that jurors are not required to cooperate with counsel’s post-verdict inquiries and that “[a] subpoena may be necessary for a reluctant witness.” Doe,
{28} Plaintiffs claim that the appropriate remedy in this case is a new trial, rather than an evidentiary hearing, because four years have passed since the extraneous juror communication occurred and there is “a great risk that the juror’s recollections regarding the impact of the extraneous material would be impaired.” State v. Mann,
CONCLUSION
{29} We conclude that the presumption of prejudice attaching to extraneous juror communications no longer exists under New Mexico law and that an evidentiary hearing, rather than a new trial, typically is the appropriate remedy. Because Plaintiffs successfully established that material extraneous to the trial actually reached the jury and that this extraneous material related to the case being tried, we remand this case for an evidentiary hearing in which Plaintiffs will have an opportunity to prove a reasonable probability of prejudice.
{30} IT IS SO ORDERED.
Notes
. We hereinafter refer to Fuji Heavy Industries, Takata Corporation, and Takata Seat Belts, Inc. collectively as Defendants.