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Wednesday, February 22, 2012

Stoner Law-Reform: The Self-Informing Jury

Like I said last time, my inner stoner hates jury duty. Another reason is that he's a bit of a conspiracy theorist; he really bugs out when he thinks people in power are hiding something from him. So you can imagine how he's been reacting to stories about jurors being dismissed for looking things up on Wikipedia and doing other online research. I tried to explain that it was about ensuring a fair trial, but he wasn't interested. The way he sees it, for a system that supposedly thinks the jury is smart about ferreting out the truth, we sure don't trust its judgment very much. And trying to stanch the flood of the Internet is the very definition of a losing battle. So, he asks, why not encourage the jury to do its own research?

It used to be, as Mark Spottswood observed last time, that the jury was self-informing. It was summoned because jurors actually knew what had happened; they came to court to give evidence, not to receive it. That system went by the wayside as jurors stopped having personal knowledge of events, and then the lawyers took over everything and the ideal jury shifted from being merely neutral to being actively ignorant. The modern treatment of the jury is honorific in theory but contemptuous in practice. Rules of evidence are designed to conceal from the jury any information that hasn't been pre-masticated into flavorless cud by the attorneys; trial procedure reacts with horror to jurors who know something useful or have well-formed opinions on anything relevant.

The Internet age, though, gives us a chance for a do-over. Instead of trying ever harder to stuff blank-slate jurors into informational Faraday cages, how about we embrace the idea that jurors know what they're doing? Jurors could ask questions of witnesses and do their own research. If they want to go to the crime scene on their own and take a look around, let them. If they need to consult a dictionary to figure out what the words the judge used in the jury instructions mean, let them. Honestly, if the jurors are surfing Wikipedia, they're probably doing about as well, if not better, than they're getting from at least one side's expert witness. And really, if the jurors are going home at night and surfing Wikipedia, how often do you think we're going to catch them at it?

Crazy, or so crazy it might just work?

Posted by James Grimmelmann on February 22, 2012 at 11:32 PM in Civil Procedure | Permalink


You know it, James!

I think that allowing jurors to be more actively engaged in the trial process, so that they felt more like valued participants and less like potted plants, would be a positive development. The jurisdictions that have allowed jurors to forward witness questions to the judge report higher levels of juror satisfaction. And the number of juror questions doesn't even end up being that high -- what seems to matter to the jurors is that they have the option.

Most jurors want to do the right thing and reach their best approximation of a just result. Having complete information must seem to them to be the best way to achieve that. Relaxing the rules of evidence so that more information could be let in will have a number of ramifications that need to be thought through (for example, what about a criminal defendant's prior record? Will the benefit in additional information outweigh the prejudice to the defendant?), but is worth that consideration. So I think your inner stoner is definitely onto something.



Posted by: Caren Morrison | Feb 26, 2012 8:40:59 AM

Thanks, Adam, for pointing this out. I'm looking forward to reading Morrison's article. It sounds like her inner stoner is in broad agreement with mine.

Posted by: James Grimmelmann | Feb 24, 2012 8:52:21 AM


I also love this series. And, as Caren Morrison argues, jurors seem to already be doing quite a lot of their own internet-based research. See Caren Morrison, Jury 2.0, 62 Hastings L. J. 1579 (2011), available at http://ssrn.com/abstract=1669637. Among other things, she describes cases where jurors have looked up the Myspace profile of one of the teenage victims in a felony sexual abuse case; accessed the Facebook page of a defendant accused of aggravated burglary with a weapon, where he showed a picture of himself holding a gun; researched oppositional defiant disorder; and determined whether a particular type of firearm could have damaged a bullet-proof vest.

Although some of these examples illustrate the problems that drg highlights, they may also represent a sign that jurors are chafing under the restrictions of their modern, limited, role. With the right balance of transparency, technology, supervision and engagement, Caren similarly argues that the jury that "may ultimately emerge – Jury 2.0 – may share some characteristics with its more active forbears."

All my best.


Posted by: Adam Zimmerman | Feb 24, 2012 1:12:35 AM

I can't find a single thing to disagree with about drg's comment. (I'm personally concerned about this inability, but that's a different issue... :) )

As long as we preserve some of the more important restrictions on evidence (i.e. inflammatory facts about the defendant or victim's past with minimal probative value), loosening it up and letting the jury ask questions is the way to go. (On the other hand, the future juror in me doesn't want to get stuck with "that guy" on the same jury....)

Posted by: Andrew MacKie-Mason | Feb 23, 2012 5:49:15 PM

The obvious problem with self-informing is that it depends on the thoroughness of the research. Many jurors would likely not seek out opposing opinions, thorough or accurate information sources, or look beyond the first source that pops up on google. In other words, there is no adversarial method of ensuring the juror gets at least two views of that particular evidence, something the courtroom presentation is, supposedly, accomplishing.

Allowing the attorneys to question jurors on any outside research so that they could present contrary evidence from similar sources, point out flaws with the information source, or argue against the conclusions of the source would seem to invite even more cumbersome and lengthy litigation.

On the other hand, I support juror questions that are subject to the same rules as for lawyers, with due consideration given to the juror's lack of training, so with assistance from the judge in phrasing questions correctly, allowing jurors to take notes and use them in deliberations, and doing away with many of the restrictions on evidentiary. Allowing jurors to be participants would increase jury attention and interest and probably give the parties insight into how the case is going to turn out, increasing settlement chances perhaps, and the types of problems with the relevance or nature of particular types of evidence generally held inadmissible can be addressed through jury instructions and argument.

A real problem in many cases in my mind, however, is the rule against questioning jurors about improper bases for decision, particularly in criminal cases. I think investigation into such improper bases can be managed without nitpicking the jury about how they weighed the evidence.

Posted by: drg | Feb 23, 2012 3:48:26 PM

There's a lot to recommend your middle ground; the main logistical rule for allowing jurors to ask questions would be "Don't all talk at once." Glad you like the series.

Posted by: James Grimmelmann | Feb 23, 2012 10:05:37 AM

One difficulty is that the self-informing jury operated in an age where verdicts were not reviewed for factual sufficiency. Instead, we just allowed a larger jury to punish jurors who issued false verdicts via the writ of attaint, based on their own private knowledge and investigation. In a world where we expect trial and appellate judges to assure themselves that verdicts are premised on sufficient factual support, rather than mere prejudice, we face some tricky questions if we allow private juror research. (Maybe they could do such supplemental investigation only if they make a record of their activities available to a court? But this seems to involve likely compliance problems.)

I suppose that doesn't answer your stoner's concern that jurors who cheat will usually get away with it, but I do think that a judge's instructions to avoid outside research can have a useful hortatory function even if they aren't enforceable in most instances. Most jurors try awfully hard to follow the rules.

I do think there is a plausible middle ground that might appeal to your stoner: Even if we don't let jurors self-inform, why not get rid of nearly all rules of evidence, with the exception of the basic relevance rule? We have little to no empirical evidence that these rules actually improve the quality of juror decisionmaking. Judges, arbitrators, and ALJs are just as human as jurors, and they decide cases every day without relying on such cumbersome standards. Why not accord jurors the basic respect of assuming that they can stifle their prejudices to the same extent that judges can? Coupled with allowing jurors to ask questions (which is really a no-brainer, aside from some simple administrative details), this would keep most of the features of the self-informing jury while preserving our modern day value of making decisions on a clear, public record.

James, this is without a doubt the most fun segment that prawfsblawg has run in a long time. By all means, keep encouraging your stoner to ponder procedural reform!

Posted by: Mark Spottswood | Feb 23, 2012 10:00:26 AM

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