Our judicial system requires juries to review only evidence produced at trial. That is the system we have had since before 1776. A juror who brings in a medical dictionary to better understand medical testimony would violate the oath they take as jurors. The theory is that a jury should review only the evidence that has passed judicial scrutiny. We have an adversarial system that relies on two different parties battling it out in court. If a juror does her own research, that turns everything upside down.

So, what happens when a juror looks something up on the internet? Everyone, well, almost everyone carries a little computer with him –  a cell phone. It has become second nature to some folks to pull out the phone and look something up. But, that is all wrong for the jury. A jury cannot review or consider something that was not introduced as evidence during the trial. Courts have been wrestling with this phenomenon. In U.S. v. Zimny, 846 F.3d 458 (1st Cir. 2017), a juror did violate her oath as a juror.

Mark Zimny operated a business known as Ivy Admit. The business helped Chinese and South Korean students get into prestigious American boarding schools in return for the parents making surreptitious donations to the school. The donations would be processed through Ivy Admit. But, Mr. Zimny kept much of the donations. So, he was charged and his trial attracted the attention of a blog post. Several hundred comments were made to the blog. People were very upset with Mr. Zimney. The comments were very angry and contained threats against the defendant. One of the comments was apparently made by a juror. Juror No.  8 said when she left the jury, half of the jury supported conviction, while half favored acquittal. Juror No. 8 had left the jury before trial ended for medical reasons. The judge called her back and asked her about the comments. She assured the judge she had visited the blog only after she was removed from the jury. A few days later, another purported juror made a comment on the blog. That comment referred to Juror No. 8.

The judge did not ask the other jurors if they had been affected or even if they were aware of Juror No. 8’s visits to the blog during the trial. Defendant Zimney appealed the court’s failure to interview other members of the jury. The appellate court found that Zimney did not suggest questions to the court to ask Juror No. 8 about whether she was affected by the comments on the blog. Not having asked to pose such questions, the defendant cannot appeal the court’s failure to ask such questions.

But, regarding the other juror, the court found some concern. The second juror who commented on the blog post remarked that Juror No. 8 was “spouting about” some things she had seen on the blog, at the trial. That comment indicated that Juror No. 8 had indeed discussed with jurors what she had seen on the blog. The court of appeals felt this would “inflame” the passions of the jury. The First Circuit panel concluded that the Defendant’s concern was legitimate. There was a colorable claim that Juror No. 8 saw things on the blog post and shared them with other members of the jury.

The court recognized the possibility that in the future, some defendant could prolong a trial by making inflammatory comments online. That is, a friend of an accused could help him avoid trial by making inflammatory comments online in the hopes of contaminating the jury. But, in the circumstances of this case, the district court should have investigated the actions of Juror No. 8 and of the second juror more closely. Zimney, at p. 468.

Mr. Zimney urged the appellate court to overturn his conviction and order a new trial. But, the higher court would not go there. Instead, the panel ordered the district court to investigate the actions of the jurors and determine if those actions were prejudicial to the jury. See decision here. The court of appeals retained jurisdiction over the remaining points of appeal.

No one wants to overturn a jury verdict. But, what do you do if the jury was contaminated by outside influence? Way back when, in 1807, Aaron Burr was tried for treason. In the early days of the Republic, that was the OJ Simpson case of the era. The Burr prosecution received overwhelming media attention. The justices had to work mightily to find jurors not contaminated by media accounts. Justice Marshall presided over the trial. He wrote in the opinion that an impartial jury must be seated. But, what does that mean? It means a jury that not only states it will abide by the evidence, but one that truly means it. Justice Marshall said a man (they were all men at the time) must come to jury duty “with a perfect freedom from previous impressions.” U.S. v. Burr, 25 F.Cas. 49, 50 (No. 14,692g) (CC Va. 1807). That is high burden, but one that is required by our system of justice.