Grand Jurors, Technology and Juror Misconduct

As I’ve noted in earlier posts, it’s improper for trial jurors to use the Internet (or any other resource) to investigate the facts or law at issue in the case they’re going to decide.

As I noted, the reason it’s improper for trial jurors to conduct their own investigation – with or without technology – is that trial jurors are supposed to be passive and impartial. Impartiality not only means they’re not only not supposed to be biased, i.e., not have a reason to favor the prosecution or defense (or plaintiff or defendant in a civil trial). It also means they’re only supposed to decide the case on the basis of the evidence that was officially introduced at trial.

As a Pennsylvania court explained, “[w]hen jurors conduct their own experiments . . ., the result is the introduction of facts that have not been subject to the rules of evidence or to cross-examination by either party.” Pratt v. St. Christopher’s Hospital, 581 Pa. 524, 866 A.2d 313 (Pennsylvania Supreme Court 2000). Pratt was a civil case, but the same principle applies in criminal jury trials, as well.

For example, earlier this year a federal judge granted a mistrial in a drug trial after he discovered that nine of their jurors had been conducting their own Internet research into evidence and issues in the trial. You can read about that case here. If you’d like to read more about juror misconduct, check out the law review article you can find here.

It’s very clear, then, that trial jurors are not supposed to conduct their own research. Something that happened to me a few weeks ago made me realize there may be another aspect of this issue, as well.

In addition to my work on cybercrime, I also have a treatise on federal grand jury practice and a website on grand juries. I sometimes get emails from people who’ve been to the grand jury site looking for information on a particular issue. A few weeks ago, I got an email from a grand juror who mentioned that he and other members of that grand jury had used the Internet to research some factual issues that were relevant to an investigation they were conducting. I got the impression that their research contradicted some of the evidence the prosecutor had presented to the grand jury.

Since the email from that grand juror was a query about a procedural issue in grand jury law, it had nothing to do with the research, as such. But the email made me think about something I hadn’t considered before: whether it’s also improper for grand jurors to use the Internet (or any other resource) to research legal and/or factual issues relevant to the case they’re investigating.

Why, you may ask, should it be different? A juror, after all, is a juror. Actually, while a grand juror is a juror, and grand jurors are selected by pretty much the same process that’s used to select trial jurors, there’s a significant difference between the two. Trial jurors, as I noted above, are fact-finders, nothing more; they sit and listen to evidence presented by both sides and then decide the case by applying the law the judge has instructed them on.

Grand jurors, as I tell my criminal procedure students, are more like detectives than trial jurors. As Wikipedia notes, grand juries sit to decide if there is probable cause to charge someone with a crime; to make that decision, they have to consider evidence. And while the evidence they base their decision to charge or not to charge on is usually brought to them by a prosecutor, that isn’t inevitable. Grand jurors have both the power to indict (i.e., charge someone) and the power to investigate possible criminal activity.

As an ABA site notes, a “grand jury has extraordinary investigative powers”, if it wants to use them. Grand juries use the court’s subpoena power to compel witnesses to appear and testify before them and to compel the production of evidence, such as documents or data or physical evidence like a weapon. Someone who receives a grand jury subpoena has to comply with it or he/she will be held in civil contempt and incarcerated until he/she decides to do what the grand jury wants. As you may recall, New York Times reporter Judith Miller was held in civil contempt and jailed in 2005, after she refused to testify before a federal grand jury investigating the outing of Valerie Plame as a CAI agent.

In the federal system, grand jurors tend to be relatively passive, relying on the evidence a prosecutor brings to them. At the state level, though, they can be more independent. Some states, for example, have statutes like this one from Washington:

The grand jurors shall inquire into every offense triable within the county . . . which [is] presented to them by a public attorney or otherwise come[s] to their knowledge. If a grand juror knows or has reason to believe that an indictable offense, triable within the county, has been committed, he shall declare such a fact to his fellow jurors who may begin an investigation. In such investigation the grand juror may be sworn as a witness.

Washington Revised Code §10.27.100. This statute reflects the active role grand jurors historically played in the process of investigating crimes and bringing charges when they were warranted.

Another practice some states have kept, but which the federal system and other states have abandoned, is the ability to return a presentment. An indictment is a set of charges drafted by a prosecutor and presented to a grand jury for the jurors to vote on; if the jurors vote to “return” the indictment, it becomes a valid charging document and opens a criminal case. The federal system and many states only use indictments, which means the prosecutor decides what, if any, charges will be brought. Other states still use presentments, which were an alternative that was historically available to grand jurors. A presentment is a set of charges that is returned by a grand jury without the assistance of a prosecutor. West Virginia is one of the states that still uses presentments:

At least twelve of the grand jurors must concur in . . . making . . . [a] presentment. They may make a presentment . . . upon the information of two or more of their own body, and when a presentment . . . is so made, or on the testimony of witnesses called on by the grand jury, . . . the names of the grand jurors giving the information, or of the witnesses, shall be written at the foot of the presentment. . . .

West Virginia Code § 52-2-8.

My point in summarizing a grand jury’s ability to investigate on its own is to illustrate why I wonder if the juror-research-as-misconduct principle applies with equal validity to a grand jury. Trial jurors are absolutely, categorically not to investigate; investigating is inconsistent with their role. Grand jurors are to investigate; investigating is a major part of their role.

As I noted, the reason it’s improper for trial jurors to conduct their own research is that this introduces evidence they cannot properly consider in deciding a case. They are limited to evidence lawfully admitted at trial. Grand jurors, though, operate much further back in the process; they investigate to decide if there should be a charge and then a trial. Why, then, would it be improper for grand jurors to conduct their own Internet research into issues (I’ll limit this to factual issues) relevant to the matters they’re investigating? I can see an argument that this falls within their proper role; if a grand jury can initiate an investigation based on facts within the personal knowledge of one of the grand jurors, why can’t they conduct research and share that with the grand jury?

As I said before, it seems to me that this is at least arguably consistent with the role of the grand jury, which is SUPPOSED to be independent of the prosecutor. The grand jury’s historic role is to be a sword (see that people are charged when prosecutors are not pursing them) and a shield (see that people who should not be charged aren’t). That role requires that they be independent of the court and the prosecutor, which grand juror handbooks often specifically state.

So where does that leave us? I have no idea. I tried to find reported cases dealing with research as grand juror misconduct, but only found one. It seems the issue hasn’t come up much, either because grand jurors haven’t conducted their own research or because no one objected to what they were doing (or maybe no one knew what they were doing).

The case is Matter of Grand Jury, New York County, 125 Misc.2d 918, 480 N.Y.S.2d 998 (Supreme Court, New York County, New York 1984). Ronald Fields, a former member of a New York county grand jury, brought an action seeking an evidentiary hearing on the way a prosecutor handled an investigation the grand jury conducted. The reason he sought the hearing was that after the grand jury indicted someone, the prosecutor had the indictment dismissed because Fields “`acted in such a way as to obstruct the grand jury’s investigation . . . and interfered with its independent function.'” Matter of Grand Jury, supra. I gather Fields conducted some investigation on his own because he wasn’t satisfied with the evidence the prosecutor was presenting to the grand jury. Matter of Grand Jury, supra.

The Supreme Court denied his request on the grounds that an evidentiary hearing wasn’t necessary:

Mr. Fields was correctly advised by [his attorney] that if he was dissatisfied with the District Attorney's presentation of a matter, his concerns should have been discussed with the entire grand jury. Then, if a majority of grand jurors concurred, the grand jury as a body could have sought to rectify the situation immediately. As Mr. Fields was aware of the proper procedure, the court must now assume that either Mr. Fields failed to persuade a majority of the grand jury there were problems with the District Attorney's presentation or, he never discussed his concerns with his fellow grand jurors. In either event it now appears that he is acting solely as an individual.

Matter of Grand Jury, supra. I’m not sure where this ruling leaves us, in part because I’m not exactly sure what Fields did. (Grand jury proceedings are secret, so the court couldn’t go into detail.) The court says he should have discussed his concerns with the other grand jurors so that, if they agreed, the grand jury as a whole could have taken steps to rectify the situation. Does this mean that if the other jurors agreed that the information Fields found cast the prosecutor’s evidence into doubt, the grand jury could then have undertaken its own research? It could mean that, of course, It could also mean that at this point the grand jurors should have tried to work with the prosecutor to get him to subpoena additional evidence that might resolve the apparent conflict. All in all, I don’t think this case does much to resolve the issue.

And it may never really become an issue. If grand jurors use the Internet to research facts and law relevant to the cases they’re investigating, no one may ever know about it. Trial juror misconduct tends to come to light because trial jurors sit in the public eye; it’s therefore pretty easy for someone to find out that a juror’s going online to research, say, causes of death. Grand juries sit in secret and the identities of grand jurors are to be kept secret; given that, it’s probably unlikely we’ll see publicity about potential grand juror misconduct based on a juror’s doing online research. It’s more likely that the matter will be handled by the court and never become public. After all, whatever happened in the Fields case wouldn’t have received any publicity if he hadn’t brought an action seeking an evidentiary hearing.