Academic journal article Michigan Law Review

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

Academic journal article Michigan Law Review

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

Article excerpt

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.

I. 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. …

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