Co-authored with Ronald Hedges.

The Issue

Courts have always faced the problem of jurors who chose to conduct independent research during trial or jury deliberations.  In the past, that research was generally limited to such things as visiting a relevant crime scene, or reading a newspaper.  Today, independent research is easily performed through the use of any of a number of readily available electronic media, including PDAs, mobile phones and PCs.  Not only are the opportunities for independent research multiplied by the sheer variety of Internet sources, but the media itself can be carried into the jury room and the results of the research can be shared, “real time,” among the jury.  Thus, the Internet can easily become the invisible “thirteenth” juror.

Why Independent Juror Research is a Problem

When jurors perform independent research, they subvert the judicial process by nullifying the evidentiary rules that were designed to ensure that the finder of fact considers only matters that are properly admitted into evidence.  Moreover, there is no opportunity for cross examination when jurors find “facts” on their own.  The consequences of this conduct are extremely wasteful of both judicial and party resources and can cause significant detours and delays in court proceedings, mistrials and overturned convictions.

Examples of Juror Misconduct

Examples of independent juror research using the Internet are not difficult to find.  The Colorado Court of Appeals was likely among the first to overturn a verdict in response to Internet research conducted by a juror during trial.  In People v. Wadle, the appellate court reversed and the Colorado Supreme Court affirmed the reversal of a conviction after a juror did Internet research on the drug Paxil – taken by a defendant accused of murdering her step-grandson – and shared the results with other jurors.
 
In Wardlaw v. Maryland, a juror violated the trial court’s instructions by performing Internet research on whether lying was a characteristic of “oppositional defiant disorder.”  (During the trial, an expert had testified that a key witness had the disorder.)  The Maryland Court of Special Appeals determined that the trial court’s failure to question jurors about the impact of the research necessitated a reversal.  Likewise, the same court reached a similar conclusion in Clark v. Maryland – where a bailiff discovered copies of Wikipedia articles in the jury room – even though in that case, the trial court had questioned the jurors and found that only one had done research and seen the articles.
   
Such juror misconduct does not invariably lead to a mistrial.  In People v. Ortiz, defendant appealed from a murder conviction, arguing, among other things, that he should have been given a new trial because a juror’s pre-verdict blog entries demonstrated bias against him. The California appellate court described the entries as “essentially a journal of the procedural stages of the trial, peppered with the author’s decidedly cynical commentary about the pace of the proceedings and the nature of the jury system in general.”  Rejecting the appeal, the Court concluded that there was no substantial likelihood of bias and that defendant had waived any argument that the juror had conducted independent research.

Russo v. Takata Corporation stands on slightly different footing.  In Russo, a wrongful death action, a venireman conducted Google research before being selected for the jury.  During deliberations, the juror shared the results of his research with five fellow jurors.  In affirming the award of a new trial, the South Dakota Supreme Court concluded that the information shared by the juror was “extrinsic” in nature and was relevant to the facts at issue.  The Court also concluded that the party seeking to overturn the verdict had the burden of showing prejudice, and held that the trial court had not abused its discretion when it found that the jury had been prejudiced.
   
Finally, the appellate court in New Jersey v. Scott (per curiam), certif. denied, took a somewhat different approach to the same type of juror misconduct.  In Scott, the convicted defendants challenged on appeal, among other things, the trial court’s decision to substitute a juror rather than declare a mistrial.  The substituted juror had conducted Internet research.  In reversing the convictions, the appellate court concluded that, under New Jersey law, a juror could not be substituted after deliberations had begun except under very limited circumstances – which had not been met – and that the juror’s misconduct had tainted the entire jury.

Possible Solutions

What can be done to guard against independent Internet research by jurors?  A court can certainly bar jurors from bringing portable media into the jury room.  Of course, that would not protect against the juror who does the research outside of the jury room and reports her findings to fellow jurors.  The only viable solution appears to be through admonitions and pleas to jurors not to engage in such research. The Russo court emphasized the jury selection stage and suggested the use of language in jury summonses and during voir dire to warn against Internet research and to identify venirepersons who did so.

In December 2009, the Committee on Court Administration and Case Management of the Judicial Conference of the United States endorsed “a set of suggested jury instructions that district judges should consider using to help deter jurors from using electronic technologies to research or communicate about cases on which they serve.”  There are separate instructions, one for before trial and the other for before deliberations.  Similarly, New York State Civil Pattern Jury Instruction 1:11, issued by the Committee on Pattern Jury Instructions of the Supreme Court Justices, includes a pre-trial instruction cautioning jurors against doing Internet (or other independent) research and reminding them to keep media turned “off” in the courtroom and during deliberations.  Other state courts are following suit.

Conclusion

Courts can instruct members of venires and jurors against conducting independent research, can punish wrongful conduct and can relieve prejudiced parties from the consequences of independent research – as they always have.  Courts cannot, however, prevent the harmful effects of the wayward juror who succumbs to the temptation of quick and easy Internet research that is never discovered.

The views expressed above are solely those of the authors and should not be attributed to their firms or firm clients.

About Maura R. Grossman

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