Fitzpatrick v. Allen

In Markee v. Biasetti, ante 785 (1991), I concurred with Justice Wilkins favoring a rule which required that a party moving for a new trial based on evidence that the jury were exposed to extraneous material make some showing that he was prejudiced by the jury misconduct. The jurisdictions are split: some courts place the burden on the nonmoving party to show that there was no reasonable likelihood that the jury were influenced by exposure to extraneous material, but more courts require that the moving party show that he was prejudiced by the extraneous material before the jury. See cases…