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

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.IntroductionIndependent 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. …