Responding to independent juror research in the Internet age: positive rules, negative rules, and outside mechanisms.

• Author: Manhas, Robbie

Independent juror research is an old problem for jury trials. It invites potentially prejudicial, irrelevant, and inaccurate information to guide jury decisionmaking. At the same time, independent juror research compromises our adversarial system by preventing parties from responding to all the evidence under consideration and obfuscating the record on which the jury's decision is made. These threats have only increased in the internet age, where inappropriate sources of information are ubiquitous and where improper access is hard to detect. Nevertheless, courts and parties continue to engage in the same inhibitory measures they have employed for decades. This Note argues for change by providing a new conceptual framework for thinking about and categorizing responses to the problem: positive rules (court rules that channel independent juror research and the impulses that govern it into something productive within our adversarial system), negative rules (court rules designed to eliminate independent juror research and its effects by blocking and punishing access to independent sources of information), and outside mechanisms (the parties' attempts to similarly stamp out this conduct and its effects). After first analyzing the problem of juror research, this Note argues that the old fashioned system of negative rules and outside mechanisms is an inadequate response to the growing problem. Although this Note offers insight about specific negative rules and outside mechanisms that may continue to be useful in tackling the challenges of independent juror research--for example, by arguing that trials should be prerecorded and videotaped--it ultimately contends that the traditional framework must be supplemented by positive rules, which will promote a more active jury. This Note concludes by endorsing two specific positive rules: allowing the jury to ask questions (of the judge, witnesses, and parties) and providing the jury with an electronic record.

TABLE OF CONTENTS INTRODUCTION I. THE PROBLEM OF INDEPENDENT JUROR RESEARCH II. A FRAMEWORK THAT BOTH CURBS AND ACCOMMODATES THE RESEARCH IMPULSE A. Negative Rules 1. Forbidding Electronic Devices 2. Sequestration 3. Prerecorded Videotaped Trials 4. Jury Instructions 5. Reporting Offending Behavior 6. Mistrial B. Outside Mechanisms 1. Eliminating Likely Offenders Through Voir Dire 2. Dealing with the Immediate Universe of Internet Information C. The Need for Positive Rules: Negative Rules and Outside Mechanisms Are Insufficient III. Evaluating the Merits of Specific Positive Rules A. Allowing Jurors to Ask Questions B. Allowing Jurors Access to an Electronic Record CONCLUSION INTRODUCTION

Independent juror research has long been an issue in jury trials. (1) Examples include jurors looking up legal terminology and principles, (2) investigating 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 literature (5) and in the courts (6) 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 research in the internet age, courts should adopt liberalized procedural and evidentiary rules that allow juries to take a more active role in judicial proceedings. Part I explains how, under the current regime, independent juror research is antithetical, and consequently detrimental, to the integrity of trials 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 response of courts. Part II evaluates these responses and classifies them as "negative rules" (court rules designed to eliminate juror research by blocking access to outside sources or by disincentivizing access to such sources) and "outside mechanisms" (parties' attempts to do the same). It recommends 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 insufficient 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 positive rules, negative rules, and outside mechanisms. It advocates for the implementation 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 impartial judge or jury, who then renders judgment after weighing the information presented. (8) Independent juror research upsets this balance in a number of ways, including by potentially exposing jurors to prejudicial, irrelevant, or inaccurate information, often without the knowledge of the judge or the parties. (9) As a result, some evidence is not subjected to adversarial 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 opportunity to respond to all the information influencing the jury's determination--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 subjected 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 research has always presented these issues. Given that widespread access to the internet now exists, however, the problem has become increasingly significant for the modern jury trial. (13) And although the way of obtaining information and doing research has changed for jurors, judicial responses to the phenomenon have remained relatively stagnant. (14) Courts typically rely almost exclusively on traditional inhibitory rules, such as mistrials and sequestration, 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 internet research in United States v. Lawson. (16) There, a jury had convicted Lawson and other defendants of violating the animal fighting prohibition of the Animal Welfare Act for participating in "gamefowl derbies," or "cockfighting." (17) The statute in question prohibited, among other things, "sponsoring] or exhibiting] 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 government 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 research 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 instructions 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 eliminate 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...