Responding to Independent Juror Research in the Internet Age: Positive Rules, Negative Rules, and Outside Mechanisms

• Author: Manhas, Robbie

Introduction

Independent juror research has long been an issue in jury trials.1 Examples include jurors looking up legal terminology and principles,2 investigat- ing details about the parties in their cases,3 and verifying expert testimony or factual information presented at trial through their own inquiries.4 The problem has taken new life, both in the academic literature5 and in the courts6 because the internet and portable electronic devices allow jurors to easily and discreetly conduct such research.7 In light of the rising tide of independent juror research facilitated by technology, courts need to consider whether the current safeguards against such conduct adequately preserve the integrity of the modern jury trial.

This Note argues that, to address the problem of independent juror re- search in the internet age, courts should adopt liberalized procedural and evidentiary rules that allow juries to take a more active role in judicial pro- ceedings. Part I explains how, under the current regime, independent juror research is antithetical, and consequently detrimental, to the integrity of tri- als in our adversarial system. It argues that, given the internet's ubiquity, the problem of juror research has become more pressing than ever before, and it highlights this development by reviewing a recent case and the general re- sponse of courts. Part II evaluates these responses and classifies them as "negative rules" (court rules designed to eliminate juror research by block- ing access to outside sources or by disincentivizing access to such sources) and "outside mechanisms" (parties' attempts to do the same). It recom- mends some reforms with regard to negative rules and outside mechanisms (most notably by arguing for prerecorded videotaped trials) but ultimately contends that while such rules and mechanisms are valuable, they are insuf- ficient to adequately quell independent juror research; thus, "positive rules" (court rules that transform the impulse underlying juror research from something that undermines the system into something that undergirds it) are a necessary supplement. Part III endorses a tripartite framework of posi- tive rules, negative rules, and outside mechanisms. It advocates for the im- plementation of two particular positive rules: allowing jurors to ask questions of the judge and witnesses and providing jurors with an electronic record.

1. The Problem of Independent Juror Research

   Independent juror research is problematic under the current procedural and evidentiary landscape because it undermines the adversarial system. In the model adversarial world, each party advocates its position before an im- partial judge or jury, who then renders judgment after weighing the infor- mation presented.8 Independent juror research upsets this balance in a number of ways, including by potentially exposing jurors to prejudicial, ir- relevant, or inaccurate information, often without the knowledge of the judge or the parties.9 As a result, some evidence is not subjected to adver- sarial review, such as cross-examination or rebuttal. Insofar as an adversarial process is essential to producing fair outcomes, perhaps the most important detriment of independent juror research is that both sides lose the opportu- nity to respond to all the information influencing the jury's determina- tion-which twists our adversarial system into something more akin to the European inquisitorial system.10 Not only does this compromise the integrity of the jury's decision (because its foundations have not necessarily been sub- jected to the truth-inducing rigors of the adversarial process),11 but it also obfuscates the record on which the decision is made. In criminal trials in particular, most of these worries are captured by the constitutional concern that independent juror research "violates a defendant's Sixth Amendment rights to an impartial jury, to confront witnesses against him, and to be present at all critical stages of his trial."12

   Whether through the internet or other means, independent juror re- search has always presented these issues. Given that widespread access to the internet now exists, however, the problem has become increasingly signifi- cant for the modern jury trial.13 And although the way of obtaining infor- mation and doing research has changed for jurors, judicial responses to the phenomenon have remained relatively stagnant.14 Courts typically rely al- most exclusively on traditional inhibitory rules, such as mistrials and seques- tration, to prevent jurors from relying on information obtained outside of court.15

   Looking at a specific case helps to frame both the importance of the problem the internet represents and the character of judicial responses. In 2012, the Fourth Circuit considered an instance of independent juror in- ternet research in United States v. Lawson.16 There, a jury had convicted Law- son and other defendants of violating the animal fighting prohibition of the Animal Welfare Act for participating in "gamefowl derbies," or "cockfight- ing."17 The statute in question prohibited, among other things, "spon- sor[ing] or exhibit[ing] an animal in an animal fighting venture."18 Six days after the jury returned its verdict finding Lawson guilty on all charges, it came to light that a juror had consulted some internet sources, including Wikipedia's definition of the term "sponsor," the morning before the jury reached its verdict.19 Further, the same juror brought a printout of the Wikipedia entry to the jury room during deliberations.20 All of this conduct occurred despite the explicit instructions of the district court, "which had admonished the jurors not to conduct any outside research about the case, including research on the internet."21 Although the district court had denied Lawson's motion for a new trial, the Fourth Circuit found that the govern- ment had failed "to rebut the presumption of prejudice" that arose from the juror's actions. It thus vacated the appellants' convictions under the animal fighting statute and awarded them a new trial.22

   This is just one recent example of how independent juror internet re- search has created lengthy, costly litigation, spanning both an appeal and a remand.23 This case also highlights the rather limited nature of judicial responses to the problem: one notable before-the-fact protection-jury in- structions prohibiting outside research-and one after-the-fact protection- declaring a mistrial and ordering a new trial. It is true that courts have been known to adopt a few other before-the-fact safeguards, such as prohibiting the use of electronic devices in the courthouse,24 sequestering the jury,25 and fining jurors or holding them in contempt of court.26 Parties may also elimi- nate jurors they suspect will conduct internet research through voir dire.27 But all these protections are predominately negative (in that they punish or deprive jurors of access to sources of information) and seem to inhibit juror activity and agency generally.28

   Given the balance that must be achieved for a fair trial, these responses are undoubtedly necessary in some measure. But imagine how much trouble could have been avoided if, for example, Lawson had simply been allowed to ask the parties or the court for clarification on the definition of "sponsor." As Professor Morrison has pointed out, some of the constraints on jurors "reflect the modern conception of impartiality, which is frequently confused with ignorance and passivity. . . . Internet access has given juries a means, albeit an unauthorized one, of sending a signal that they are chafing under the restrictions of their role."29 The question that arises, then, is how to alleviate this chafing without sacrificing the virtues of the adversarial system. Part II articulates a formal framework of how courts and parties can do so and suggests ways in which the court system could improve these measures to better address the problems that independent juror internet research raises.

2. A Framework That Both Curbs and Accommodates the Research Impulse

   Responses to the problem of juror internet research typically take two forms: (1) "negative rules," or court rules designed to eliminate juror re- search and its effects by blocking access to outside sources or disincentiviz- ing access to such sources, and (2) "outside mechanisms," or actions taken by the parties to remove or ameliorate the possibility of independent juror research influencing the jury's decision. An example of the former is forbid- ding the use of electronic devices in the courthouse;30 an example of the latter is removing likely offenders from the juror pool through voir dire.31 In addition to negative rules and outside mechanisms, there is theoretically a third response, one which has been unduly neglected: "positive rules," or court rules that channel jury activity, as well as the impulses that drive inde- pendent juror research, into something productive in our adversarial system.

   This Part contends that the court system must adopt a tripartite frame- work of positive rules, negative rules, and outside mechanisms if it is to satisfactorily address the problem of juror internet research. This Part first assesses the merits of specific examples of both negative rules (Section II.A) and outside mechanisms (Section II.B) and offers recommendations in these areas, such as implementing more prerecorded videotaped trials. Section II.C concludes that negative rules and outside mechanisms serve a...