Authorized Technical Assistance and the Boundaries of the Remmer Presumption

Introduction

United States v. Briscoe, 10th Cir. (April 2, 2025) marks a significant clarification of how the Sixth Amendment right to an impartial jury interacts with modern courtroom technology and jury‐room assistance. Jason P. Briscoe, convicted on federal drug and firearms charges in the District of Kansas, filed a post‐conviction motion under 28 U.S.C. § 2255. His motion focused on an information‐technology (IT) technician’s entry into the jury room during deliberations to help jurors operate video playback equipment. Briscoe argued that this contact violated his constitutional rights and that his trial counsel was ineffective for failing to move for a new trial once the contact came to light.

The key issues are: (1) whether an authorized IT technician’s visit to the jury room triggers the presumption of prejudice announced in Remmer v. United States, 347 U.S. 227 (1954); (2) if so, whether the government can rebut that presumption; and (3) whether trial counsel’s failure to challenge the technician’s in‐room assistance constituted ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984). The United States Court of Appeals for the Tenth Circuit, sitting in an unpublished panel decision, answered these questions and affirmed the denial of relief.

Summary of the Judgment

The Tenth Circuit unanimously affirmed the district court’s denial of Mr. Briscoe’s § 2255 motion. The panel held that:

1. No Remmer presumption: The court concluded that jury‐room assistance by an IT technician was expressly authorized by the trial court’s in‐court instruction ("there will be someone in the jury room that will instruct you how to access the evidence … in an electronic medium") and conducted with both parties’ full knowledge. Under Remmer, prejudice is presumed only when an unauthorized private communication or contact occurs without court direction.
2. Harmless‐error standard: Even if Remmer applied, the panel held there was no reasonable possibility that the technician’s presence affected the verdict. Applying the more deferential harmless‐error test of Brecht v. Abrahamson, 507 U.S. 619 (1993), the court found no “substantial and injurious effect or influence” on the deliberations.
3. No ineffective assistance: The court rejected Briscoe’s claim under Strickland that counsel was deficient for not moving for a new trial. Because the trial court could properly have denied any objection to authorized technical assistance or to slow‐motion playback, counsel’s strategic decision not to pursue such a motion was not objectively unreasonable, and Briscoe could not show a reasonable probability of a different outcome.

Analysis

Precedents Cited

The court’s ruling drew principally on:

• Remmer v. United States, 347 U.S. 227 (1954) – established that unauthorized private communications with jurors are “presumptively prejudicial” unless made under court direction with full knowledge of counsel.
• Brecht v. Abrahamson, 507 U.S. 619 (1993) – articulated the harmless‐error standard for constitutional errors in collateral proceedings: relief is unavailable unless the error had a “substantial and injurious effect or influence” on the verdict.
• Little v. United States, 73 F.2d 861 (10th Cir. 1934) – held that any non‐juror contact with the jury was error capable of affecting the outcome, but it predated Remmer and did not recognize authorized contacts.
• United States v. Freeman, 634 F.2d 1267 (10th Cir. 1980) – reversed convictions where an interested party (an FBI agent witness) aided jurors with audio evidence without counsel’s knowledge.
• United States v. Hornung, 848 F.2d 1040 (10th Cir. 1988) and Stouffer v. Duckworth, 825 F.3d 1167 (10th Cir. 2016) – applied Fed. R. Evid. 606(b) to limit inquiry into jury deliberations and emphasize the presumption of jury regularity.
• Malicoat v. Mullin, 426 F.3d 1241 (10th Cir. 2005) and Crease v. McKune, 189 F.3d 1188 (10th Cir. 1999) – declined to apply the Remmer presumption in state‐court habeas cases under 28 U.S.C. § 2254, underscoring comity and finality considerations.
• Strickland v. Washington, 466 U.S. 668 (1984) – set forth the two‐pronged test for ineffective assistance of counsel: deficient performance and resulting prejudice.

Legal Reasoning

1. Authorized vs. Unauthorized Contact: The panel emphasized that Remmer applies only when an extrajudicial communication with a juror occurs without court knowledge or authorization. Here, the trial judge had expressly informed the jury that court staff would assist them in accessing electronic exhibits. That statement put defense counsel on notice and foreclosed a presumption of prejudice.

2. Harmless‐Error Review: Even if the court had erred in allowing the technician’s in‐room assistance, Briscoe could not demonstrate actual prejudice. None of the juror interviews revealed that the technician interposed any substantive comment or influenced the decision on the merits. The jurors themselves ran the equipment and replayed the cell‐phone video in slow motion, a process that reproduced exactly what was admitted in evidence.

3. Ineffective Assistance: Defense counsel’s strategic decision not to object to a court‐authorized technical visit or to move for a new trial did not fall below an objective standard of reasonableness. Furthermore, Briscoe failed to show a reasonable probability that an objection or new‐trial motion would have succeeded or altered the jury’s unanimous verdict.

Impact

United States v. Briscoe clarifies several emerging issues in federal criminal procedure:

• Technology in the Jury Room: As courts increasingly rely on digital exhibits, they must balance jurors’ need for technical assistance against the sanctity of jury deliberations. This decision confirms that court‐authorized assistance, with full disclosure, does not violate the impartial‐jury guarantee.
• Scope of the Remmer Presumption: Briscoe narrows the application of Remmer by requiring that any non‐juror contact must be truly private and unauthorized before prejudice is presumed. This reduces the risk of automatic reversals when courts accommodate jurors’ legitimate needs.
• Harmless‐Error in § 2255 Proceedings: Reinforcing Brecht, the decision applies a demanding harmless‐error standard in post‐conviction collateral attacks. Defendants must now do more than show a “reasonable possibility” of prejudice; they must demonstrate actual harm.
• Defense Counsel’s Tactical Latitude: The ruling underscores that counsel’s choice not to object to court‐sanctioned procedures—even those involving juror assistance—ordinarily falls within the “wide range of reasonable professional assistance” protected by Strickland.

Complex Concepts Simplified

• Remmer Presumption: A rule that presumes prejudice when an outsider communicates with a juror about the case without court permission. The government then bears a heavy burden to prove no harm resulted.
• Harmless Error (Brecht) Standard: In collateral § 2255 proceedings, a defendant wins relief only if the constitutional error had a substantial and injurious effect on the verdict. Mere “reasonable possibility” of harm is insufficient.
• Certificate of Appealability (COA): Before appealing the denial of a § 2255 motion, a prisoner must obtain a COA by showing that “reasonable jurists” could debate the correctness of the district court’s ruling on a constitutional claim.
• Fed. R. Evid. 606(b): A rule limiting juror testimony about deliberations, with narrow exceptions for extraneous information or outside influence brought into the jury room.
• Strickland Test: To prove ineffective assistance, a defendant must show (1) counsel’s performance fell below an objective norm of reasonableness and (2) that there is a reasonable probability the result would have been different but for the deficient performance.

Conclusion

United States v. Briscoe sets a new benchmark for how courts handle juror requests for technological assistance. By distinguishing between unauthorized private contacts (which may trigger a prejudice presumption under Remmer) and court‐sanctioned technical support, the Tenth Circuit preserves the integrity of jury deliberations without unduly hampering jurors’ ability to review electronic evidence. The decision also reaffirms the stringent harmless‐error standard in § 2255 proceedings and the wide latitude granted to defense counsel in making tactical decisions. Future cases involving in‐room technical support will look to Briscoe for guidance on ensuring both a fair trial and an impartial jury in the digital age.