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.