Perez ex rel. Perez v. Community Hospital of Chandler, Inc
In Perez ex rel. Perez v. Cmty. Hosp. of Chandler, Inc., 187 Ariz. 355, 356, 929 P.2d 1303, 1304 (1997), the Arizona Supreme Court discussed the proper test a court should apply when determining whether a bailiff's ex parte communications with the jury warrant a new trial.
Rejecting "a strict rule of presumed prejudice in cases involving such communications," the court recognized that each situation should be examined on a case-by-case basis, using a two-prong inquiry asking, first, whether there was an improper communication and, second, whether the communication was prejudicial. 187 Ariz. at 356, 929 P.2d at 1304.
To address these questions, the supreme court identified several factors a court should consider, including "(1) whether the communication was improper or simply involved an 'administrative detail;
(2) whether the communication, despite its impropriety, concerned an innocuous matter;
(3) whether the substantive response accurately answered the question posed;
(4) whether an essential right was violated;
(5) whether the nature of the communication prevents ascertainment of prejudice." Id.
In Perez ex rel. Perez v. Community Hospital of Chandler, Inc., the bailiff essentially restricted what jurors could consider by advising them that they would not be permitted to rehear testimony, and that they would not receive copies of certain transcripts admitted in evidence. Id. at 357, 359, 929 P.2d at 1305, 1307.
Additionally, after the jurors reached a four-to-four impasse, the bailiff told the jurors (without advising the judge) what would happen if they were unable to reach a verdict. Id.
Further, the bailiff told the jurors-in response to a question about a doctor escaping liability if the jurors decided to sign the defense verdict form-that obtaining an answer to their question would be time-consuming, and that the jurors should thus be certain they wanted to ask the question. Id. at 357, 929 P.2d at 1305.