SUPREME JUDICIAL COURT DIRK GKEINEDER - Mass Cases

jury, if “a judge learns that a juror has, in fact, been
influenced by extraneous information, there must be a new
trial.“ Kincaid, 444 Mass. at 392.’’ The actual impact
test has never been interpreted to allow the Commonwealth
to meet its burden by showing that none of the
deliberating jurors was actually affected. It is hard to
imagine how the Commonwealth could ever prove that no
juror was affected by extraneous information since Fidler
prohibits eliciting testimony on that point, and it is
inconceivable that all 12 jurors would independently
volunteer such information absent inquiry.
C. Application of Law to Facta.
1. The banana experiment expoeed the jury to
extraneous information.
The experiment conducted by the jurors involved
outside materials and exposed the jury to “specific facts
not mentioned at trial concerning ... the matter in
litigation.” Fidler, 377 Mass. at 200. Specifically, the
experiment showed that the pattern of lines produced when
the glove was moved across the aurface of a banana
closely resembled the streak on Greineder‘ s jacket. There
was nothing accidental about this experiment. The jury
resorted to it only after its request for a millimeter
18 This Court has also held that where the jury takes an
active role in investigating a ease or learning facts outside those
in evidence, prejudice is established as a matter of law. See, m,
Fitzeatrick v. Allen, 410 Maaa. 791, 796 (1991); Markee v. Biaaetci,
410 M ~ES. 785, 789 (1991).
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