State v. Furutani 76 Hawai'i 172, 873 P.2d 51 (1994)
FACTS: After trial a juror told the court that she had voted to convict only because she was pressured to do so by other jurors who wanted to go home for the weekend. Later the same day, she also represented to defense counsel that she had voted to convict on the counts as to which Furutani's signatures on checks and tax returns were material only because another juror had opined during deliberations that if the signatures were not Furutani's, he would have taken the stand and said so.
... “The general question, therefore, becomes whether the defendant has been substantially prejudiced by particular comments or statements made by jurors during deliberations regarding his or her failure to testify. The difficulty in showing prejudice arising from jury misconduct [during deliberations] is that [u]nder [Hawai'i Rules of Evidence (HRE)] 606(b) ..., we cannot consider ... jurors' testimony as to the effect of the improper statement[s] upon them. We can only consider whether such ... statement[s] [were] made ..., and whether, given [those] statement[s], we can say that [the defendant] had a trial before an impartial jury.
“[R]ecogniz[ing] the difficulty in making a showing of prejudice under these constraints,” id., we hold that when a criminal defendant makes a prima facie showing that improper juror comments during deliberations have been “used as a circumstance against” him or her, “there is a presumption of prejudice and the verdict will be set aside unless it is clearly shown that the juror's [comments] could not have affected the verdict.” And consistent with our case law, the burden is on the prosecution to make such a “clear showing” beyond a reasonable doubt.
We hold that the circuit court's COL that juror “misconduct during deliberations deprived [Furutani] of a trial by twelve fair and impartial jurors” was not clearly erroneous. ...
... we hold that the circuit court did not commit an abuse of discretion in granting Furutani's motion for new trial. ... Affirmed.
STATE v. YAMADA 108 Hawai'i 474, 122 P.3d 254 (2005)
Circuit Court granted a new trial on the sole ground that a juror slept through 12 minutes (20%) of defense counsel's one-hour long closing argument, “without a showing of actual prejudice from the defense or a finding of prejudice, and where the record as a whole evinced no prejudice to defendant.”, we vacate the circuit court's March 15, 2004 order and remand this case for sentencing....
[After the jury found the defendant guilty, the trial judge] voir dired the three jurors who were believed to be sleeping during the parties' closing arguments.... [only one admitted sleeping]
Where the trial court determines that the juror misconduct could substantially prejudice the defendant's right to a fair and impartial jury, a rebuttable presumption of prejudice is raised and the court must investigate the totality of circumstances to determine if the misconduct impacted the jury's impartiality...In order to overcome the rebuttable presumption, the prosecution must show that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt. ...the dispositive question … is whether the prosecution has overcome the rebuttable presumption by showing that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt. We believe it has.
… there is nothing in the record to suggest that [the sleeping juror] slept through any of the evidence adduced at trial or any of the jury instructions that were given [and] nothing in the record to suggest that he was unable to fully participate in jury deliberations...the prosecution has met its burden in establishing that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt... we hold that the trial court abused its discretion in granting a new trial.