State v. Miller
In State v. Miller, 178 Ariz. 555, 875 P.2d 788 (1994), a dismissed alternate juror left a note on the windshield of one of the remaining jurors, which said either "he's guilty" or "my vote is guilty." 875 P.2d at 790.
The trial court refused the defense request to take testimony or question the sitting jurors. Ibid.
The Arizona Supreme Court held that the trial court abused its discretion in failing to hold an evidentiary hearing. Id.
The Court recognized the difficulty of ordering a hearing on this issue almost four years after the original trial, stating:
The arguments against ordering a hearing at this late date are understandable. Memories fade with time.
Assuming the jurors can be reassembled, testimony obtained now might be suspect, and its reliability subject to challenge.
Moreover, the judge who saw the witnesses and heard the case on its merits has long since retired.
Ordering a hearing now will leave another judge who had no involvement in the trial with the difficult task of determining whether the communication prejudiced the verdict. Id. at 790.
In State v. Miller, the Arizona Supreme Court remanded the case to the superior court for it to determine whether an evidentiary hearing was feasible notwithstanding the fact that the trial had occurred four years earlier because "while the delay in this case may have rendered a productive hearing at this point unlikely, the lower court is in the best position to determine if the jurors can be reassembled and whether their memories are sufficiently reliable to ensure that the defendant received a fair trial." Id.