Focus On JONATHAN M. REDGRAVE Unplugging Jurors from the Internet Y ou have just finished a long, grueling, com- ror interviews revealed that several jurors had con- plex trial involving many scientific and tech- ducted independent research on the Internet to look nical issues. Unfortunately for you and your up medical terms used during the trial. One juror ad- client, you lost. During post-trial interviews of jurors, mitted to looking up and downloading the definition you are surprised to learn that several of the jurors of “bacterial vaginosis,” a condition for which the de- surfed the Web to do their own independent re- fendant (a health care provider) had treated the search during the trial. In particular, these jurors used plaintiff and which the defendant claimed produces the Internet to research the meaning of scientific similar symptoms to those that the plaintiff com- terms used in the trial as well as to find background plained of prior to her premature delivery. Another information about you and your client. Most lawyers juror testified that she had conducted an Internet find this scenario disturbing. Unfortunately, it is not search to see if she could find information on anoth- fiction. 1 er medical condition at issue in a case of twin-to- Most model or pattern civil jury instructions do twin transfusion syndrome (TTTS), but once she not yet directly caution jurors not to use the Internet learned that information was available, she did not open or read any of the retrieved documents. 6 in connection with their jury service. This article ex- amines the standard for seeking a new trial when ju- Upon reviewing the allegations of misconduct, the ror misconduct involving the Internet occurs and Washington Court of Appeals affirmed the district suggests that litigators should consider an explicit court’s finding that the plaintiff’s medical records, jury instruction prohibiting Internet research. which were admitted at trial, also contained her his- tory of bacterial vaginosis. Furthermore, the informa- Juror Exposure to Extraneous Materials: Standard tion that the jurors downloaded was similar to infor- for a New Trial mation already in the record. For this reason, and be- The federal circuits apply varying standards in civ- cause the parties did not dispute the accuracy of the il cases to assess the merits of a new trial motion information, the Washington Court of Appeals con- when evidence shows that jurors were exposed to cluded that the information could not have affected materials not admitted into evidence. Several circuits the verdict. Likewise, because the district court found presume that the consideration of extraneous materi- that extensive information on TTTS was presented by als is prejudicial, although cases in each circuit pro- both sides at trial, the Washington Court of Appeals vide various interpretations of the standard. 2 Other affirmed the trial court and concluded that the added circuits apply a test that focuses on whether there is knowledge that information could also be obtained a “reasonable probability” that the extraneous materi- from the Internet, without more, could not have af- als altered the jury’s verdict. 3 On the other hand, the fected the verdict. Eighth Circuit has held that, in a civil case, the expo- A similar situation was presented in a criminal sure of jurors to materials not admitted into evidence case in federal court in California, where one of the mandates a new trial only upon a showing that the jurors admitted to conducting independent research materials are prejudicial to the unsuccessful party. 4 on the Internet about telemarketing — the subject Counsel must understand the applicable standard matter of the criminal case against the defendants. when confronted with the unexpected and unfortu- The juror had typed in the search term “telemarket- nate situation of juror exposure to extraneous ing” in an effort to find out what the term meant, but materials. told the judge that she had seen nothing that would influence her vote. The defendants’ motion for a mis- Juror Misconduct: The Internet Looms trial was denied. Three months after the verdict, both To date, there are few reported cases involving In- defendants filed motions for a new trial, relying on ternet use by jurors. However, a review of these cas- an investigator’s discovery that, in addition to Inter- es reveals the significant potential for mischief posed net access, the juror had also used the San Diego by jurors’ access to the Internet. For example, in an Union Tribune newspaper to conduct research. The unpublished opinion, the Washington Court of Ap- investigator also attempted to simulate the Internet peals employed a standard similar to the one used research conducted by the juror. The ninth “hit” by the Eighth Circuit to review juror misconduct. 5 In JURORS continued on page 20 that action, a medical malpractice case, post-trial ju- July 2001 | The Federal Lawyer | 19
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