Table of Contents Introduction I. Situating the Modern Jury in Its Historical Roots II. The Problem of Extraneous Information III. Drawing the Line Between Personal Experience and Extraneous Information A. New York: Minority Approach B. Majority Approach C. California and Washington: A Middle Ground Conclusion Introduction
As Justice Holmes once stated, "[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence." (1) This prohibition encompasses a juror's introduction of extrajudicial facts and information into the jury room. Expert jurors--that is, jurors with relevant personal expertise--pose a distinct risk of introducing extraneous information given the wealth of knowledge they already possess that other jurors would be prohibited from seeking out. This Note explores the risk expert jurors can pose and how state laws currently treat a juror's use of her personal expertise during deliberations.
While courts have long protected the sanctity of the jury room, they have also long allowed it to be pierced when extraneous information--information beyond that adduced at trial--enters into it. (2) After all, it is also a fundamental principle of the legal system that a jury must determine the outcome of a case based solely upon the arguments and evidence presented at trial. A juror's use of extraneous prejudicial information violates a party's due process rights and, for criminal defendants, Sixth Amendment rights. (3) And extraneous information is less trustworthy as it has not benefited from the safeguards of the judicial process intended to weed out unreliable evidence, such as the rules of evidence and cross-examination. (4) Consequently, courts may grant new trials when extraneous information enters the jury room, such as when jurors consult dictionaries, (5) real estate appraisal guides, (6) outside attorneys, (7) or medical reference books; (8) take independent trips to accident sites (9) or crime scenes; (10) perform independent experiments; (11) or read newspaper accounts of the trial. (12) Courts have also prohibited people who have personal knowledge of the facts of a case from serving on the jury. (13)
In contrast to the modern jury's limitations on extraneous information, historically "jurors were chosen precisely because they possessed knowledge of a dispute." (14) Courts even selected specialized juries that were intended to use the jurors' expertise. For instance, courts seated juries of merchants to decide commercial disputes (15) and juries of matrons to determine whether a woman was pregnant. (16) Through the early eighteenth century, legal scholars and jurists insisted that "the judge cannot fully know upon what evidence the jury give their verdict; for they may have other evidence than what is shewed in court." (17) Overall, "[t]he twentieth century American jury has moved a long way from its medieval origins." (18)
Yet "it is an impossible standard to require [the jury room] to be a laboratory, completely sterilized and freed from any external factors." (19) It is not realistic to expect jurors to come into the jury room and leave the wealth of their personal experience behind them, to refrain from viewing the evidence--as they view the entire world--through the lens of their knowledge and experiences. After all, "[o]ne function of the jury is to infuse a practical sense into the legal theories offered at trial." (20) Jurors are supposed to bring in the common knowledge of the community to interpret and analyze the evidence adduced at trial, (21) such as a party's theory of the case or a witness's credibility. As the Supreme Court of California has recognized, "[j]urors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system." (22)
The desire to restrict the jury to solely the evidence presented at trial and the constitutional values that such a restriction serves to protect--due process, the right of confrontation, and the right to counsel--exist in tension with the historical roots of the jury and modern jurors' continuing use of everyday experience during deliberation. This tension is particularly acute when a juror enters the jury room with specialized knowledge relevant to the facts at issue--knowledge of the sort possessed by expert witnesses. After all, courts act as gatekeepers when parties seek to introduce expert testimony. (23) Jurors with specialized expertise, such as doctors and lawyers, can bring into the jury room the same sort of evidence an expert witness would testify to at trial, only without having gone through the usual safeguards in place to rule out impermissible or untrustworthy evidence, let alone those governing expert testimony.
If one juror is banned from consulting an encyclopedia, can another juror be allowed to consult the encyclopedic information already in her mind? Is it, for instance, permissible for a juror who is a nurse to independently determine the victim's cause of death (24) or for a juror who is a transportation consultant to describe additional steps a railroad corporation could have taken to prevent an accident? (25) Have these jurors brought in prohibited extraneous information when they use their expertise and then share their opinions and knowledge, or have they simply analyzed the evidence through the lens of personal experience?
This Note considers these questions. First, in Part I, this Note situates the jury in its historical context and summarizes the evolution from juries chosen for their special knowledge to modern impartial juries bound to consider only the evidence admitted at trial. In Part II, this Note then discusses the problem of extraneous information and the threat it poses to constitutional rights, whether the information comes from the lips of a juror or a third party. Next, in Part III, this Note surveys current state case law governing when a juror's use of personal specialized knowledge introduces extraneous information into the jury room, an undertaking no scholar has yet completed. (26) Finally, this Note concludes by suggesting how courts should handle jurors with specialized expertise relevant to the factual issues in dispute. It argues for allowing parties to strike a juror for cause if the juror has expertise related to a material fact at issue while restricting findings of prejudicial misconduct when the parties chose to retain the juror knowing of her relevant expertise.
Situating the Modern Jury in Its Historical Roots
The modern understanding of the jury is a departure from the historical conception of the jury. Today's jury is an impartial cross-section of the community that bases its decision solely on the evidence presented at trial. But it was not until the eighteenth century that legal scholars consistently agreed that a juror with personal knowledge of the facts in dispute needed to offer that knowledge in open court. (27) And it was not until the twentieth century that the concept of an impartial, cross-sectional jury took hold in American law. (28)
The historical jury did not face the same limitation on considering extraneous facts as the modern jury does. Between the twelfth and sixteenth centuries, juries were empowered to decide cases on the basis of the jurors' accrued personal knowledge. (29) Juries in the sixteenth and seventeenth centuries were in fact required to contain a minimum number of individuals from the community, who were presumably more likely to have such personal knowledge. (30) Procedures were established, such as requiring jurors to report any personal ignorance about the dispute and intentionally including witnesses as jurors, to help ensure these requirements were met. (31) Drawing juries from the local community, a tradition now embodied in the Sixth Amendment's vicinage requirement, also helped guarantee that jurors had the requisite personal knowledge. (32) While the early juries were "never simply a collection of witnesses," jurors were encouraged to seek out, acquire, and use their own personal knowledge when deciding cases. (33)
Through the nineteenth century, courts also selected jurors on the basis of the jurors' specialized expertise. For instance, courts empaneled juries of matrons to determine whether a woman sentenced to death was quick with child or whether a widow was pregnant with her deceased husband's heir: this was, after all, a task for which women were viewed as having particular expertise. (34)
Judges empaneled juries with relevant specialized knowledge in other contexts, as well: juries of clerks and attorneys to try cases of attorney misconduct (35) and even a jury of cooks and fishmongers to try a man accused of selling bad food. (36) One of the most well-known examples is the use of merchant juries, in both England and the colonies, to try cases involving commercial disputes. (37) Judges in England frequently deferred to the verdicts of merchant juries, even occasionally as to questions of law, because of the jurors' perceived expertise. (38) Another well-known example is the use of the jury de medietate linguae, the "mixed-language," "mixed-tongue," or "half-and-half jury. (39) A noncitizen party could request such a jury, which was composed of half noncitizens and half locals. (40) It was assumed that this type of jury could compensate for bias against foreign litigants and would be more able to relate to an alien party's perspective. (41)
This historical vision of a jury empowered to use its own knowledge to decide a case is reflected in scholarly analysis and judicial opinions discussing a party's ability (in a civil case) to seek a new trial due to the verdict's inconsistency with the evidence. (42) Through the seventeenth century, both experts and jurists agreed that judges could...