Washington Journal of Law, Technology and Arts Volume 9, Issue 1 Summer 2013
Conformity in Confusion: Applying a Common Analysis to Wikipedia-Based Jury Misconduct
Matthew Fredrickson(fn*)© Matthew Fredrickson
ABSTRACT
In 2012, the United States Court of Appeals for the Fourth Circuit decided United States v. Lawson, a case of first impression about a juror's use of Wikipedia during deliberations. Had this case been decided in the 1950s, the juror's contact with the extra-record material during deliberations would have given rise to a presumption of prejudice in favor of the party claiming he was denied a fair trial. However, in the 1980s and 1990s, the United States Supreme Court seemed to eliminate that presumption and place the burden of proving prejudice on the party seeking a new trial. As a result, federal circuit courts today disagree as to when, if at all, the moving party should enjoy a presumption of prejudice in such cases. But every federal circuit court's substantive analysis focuses on the nature and impact of the extra-record contact, regardless of whether the presumption applies. This common substantive analysis has been used in Internet-based misconduct cases and should be expected in Wikipedia-based misconduct cases.
TABLE OF CONTENTS
Introduction ................................................................................... 20
I. The Cause of the Circuit Split ............................................... 21
II. The Three Approaches .......................................................... 24
A. Applying the Remmer Presumption: Second, Fourth, Seventh, Tenth, and Eleventh Circuits ............... 24
B. Abandoning the Remmer Presumption: Fifth, Sixth, and D.C. Circuits ................................................... 25
C. Letting Severity Dictate Application of the Remmer Presumption: First, Third, Eighth, and Ninth Circuits .................................................................. 25
III. A Common Analysis ............................................................. 26
IV. Adding the Element of Technology ...................................... 29
A. General Internet Research ............................................... 29
B. Defining Terms ................................................................ 31
C. Wikipedia-Based Jury Misconduct ................................. 32
Conclusion .................................................................................... 34
Practice Pointers ............................................................................ 34
INTRODUCTION
Practitioners who allege that the jury in their client's trial has been prejudiced by coming into contact with electronic extra-record material should know that the circuit split over the presumption of prejudice is no split at all and that a common analysis applies. Technology has made it easier for jurors to access electronic extra-record material during deliberations and thereby engage in misconduct worthy of a new trial. But these advances in technology are coming at a time when federal circuit courts remain split over how to approach jury misconduct. Since the 1980s and 1990s, the federal courts have not applied a uniform approach to assessing unauthorized, potentially influential contact between the jury and extra-record material during deliberations. Some circuits approach this type of misconduct by presuming prejudice to the defendant, others utilize no such presumption, and still others will presume prejudice only in certain cases.(fn1)
In light of new and changing technologies, these various approaches to jury misconduct may need to adapt. The Fourth Circuit's novel finding in United States v. Lawson suggests that a juror's contact with Wikipedia is more prejudicial than contact with other types of offline material.(fn2) However, despite the circuit split, three factors indicate the utility of a core analysis in cases of Wikipedia-based jury misconduct. This particular type of misconduct should not be subject to divergent analyses because of the overwhelming consistency among federal circuit courts in analyzing accusations of jury misconduct, the fact that these courts are employing the same analysis in the emerging Internet-based misconduct cases, and the fact that the only circuit court to address Wikipedia-based misconduct was ultimately unsure of how to approach the issue. Regardless of the labels different courts put on their approach to jury misconduct analysis and the uniqueness of the Internet and Wikipedia as sources of juror misconduct, the analysis is and will be the same in every circuit.
I. THE CAUSE OF THE CIRCUIT SPLIT
Over the course of almost six decades, beginning in 1954, the Supreme Court created and subsequently rejected a presumption of prejudice when a juror comes into contact with potentially influential, extra-record materials or persons during deliberations. Jurors can only consider the material and witnesses presented to them during the trial.(fn3) A key component to jury trials is the ability of the court to insulate jurors from material beyond that purposefully presented to them at trial.(fn4) If a juror does come into contact with anything beyond that offered at trial, unfair prejudice might arise.(fn5)
In 1954, the Supreme Court decided Remmer v. United States, which established a rebuttable presumption of prejudice when jurors come into contact with potentially influential, extra-record material or persons.(fn6) In Remmer, an unnamed person attempted to bribe a juror for a favorable verdict.(fn7) After the juror reported this bribe and while the jury deliberated, the Federal Bureau of Investigation (FBI) investigated the bribe.(fn8)
The Court, observing that any contact "with a juror during a trial about the matter pending" is presumptively prejudicial, held that the unduly impressive and potentially chilling effect of the FBI investigation might have prejudiced the jurors.(fn9) To be certain, the Court instructed the trial court to determine the circumstances of the contact, its impact, and any resulting prejudice via a hearing.(fn10) At this hearing, the government may attempt to show that the contact was harmless; however, the Court noted that the government's burden when rebutting the presumption is "heavy."(fn11)
Decades later, the Supreme Court decisions in Smith v. Phillips and United States v. Olano suggested a withdrawal from the strict presumption previously articulated in Remmer.(fn12) In Phillips, a juror applied for a position with the District Attorney's office prosecuting the case.(fn13) The Supreme Court held that this contact, which tended to improperly impress upon the juror's decisions regarding the case, required a Remmer hearing.(fn14) More specifically, the Remmer approach to allegations of juror impartiality applied because the Court accepted that "'the average man in [the juror's] position would believe that the verdict of the jury would directly affect the evaluation of his job application.'"(fn15)
The Court maintained, however, that at this hearing "the defendant ha[d] the opportunity to prove actual bias" and that it was "'the defendant's right to demonstrate'" the alleged prejudice.(fn16) These articulations suggest a theoretical tailoring of that undefined, "heavy" burden in Remmer. Now, suggested the Phillips Court, the defendant must prove or demonstrate the bias that was supposed to be presumed in his favor. That is, the defendant has the burden of persuasion.
In Olano, the Supreme Court also appeared to move away from the strict presumption by emphasizing that the trial court's inquiry into this type of jury misconduct can either be framed as a rebuttable presumption or as a specific analysis.(fn17) In Olano, the improper contact was the presence of alternate jurors in the jury room during deliberations.(fn18) Since defense counsel did not object to their presence, the undue influential capacity of the alternates was...
