Judges, Juries and Outside Research

What information should be used to decide a case ' only that offered by the opposing sides? If independent legal research is permissible, just how much is too much? These questions, which are being asked in the realms of medical malpractice, criminal and other types of cases, have become more imperative in the last few years.

As we have all observed, most of the developed world is fascinated by the Internet, as well as by other technological means of quickly and instantly finding information. Lawyers use the Internet to conduct research and to gauge the opinions of potential juror pools. Jurors are frequently admonished not to use it (or instant messaging services, among other frequently used technologies) to help them form opinions about the cases they are to decide. Judges are not immune ether; like everyone else, they have become used to having the world's trove of information at their fingertips, and they want to use it to make the best decisions possible.

Because of the growing debate over how much outside information judges and juries should be allowed to access, and about what should be done when these decision makers go too far, our courts are being asked to weigh in with their opinions.

Juror's Research Leads to Mistrial

Consider a recent case in which a jury's verdict was overturned because of “outside” research. In that case, Wardlaw v. State, 185 Md.App. 440 (Md.App. 5/8/09), the credibility of the underaged sexual abuse victim was particularly important to the case because the girl's testimony constituted the sole significant evidence against the defendant, her father. The jury convicted the man of three counts of assault, but it deadlocked on the charges of sexual child abuse and incest, so a mistrial was declared on those counts. The defendant, who received a sentence of two consecutive 10-year terms, appealed.

The issue on appeal concerned a juror who, during deliberations, conducted her own Internet-based research on a condition from which the crime victim allegedly suffered: oppositional defiant disorder (ODD). Through her independent research, the juror learned that those who suffer from ODD are prone to lying. She relayed her findings to the other jurors during deliberations. This information might have been of major importance in the Wardlow case because the alleged victim's testimony was the only meaningful evidence that crimes had been committed against her.

The jury's members, concerned that they had been given information they perhaps should not have had, sent a note to the judge, stating: “One juror indicated at the beginning of our deliberations that she researched ODD online Wednesday evening and found that lying was a part of the illness. I am concerned that her statement is an undue influence on the rest of the jurors. Was this okay?” Further down, the note said, “And the foreman needs to know is lying a part of the illness.”

After seeing the note, defense counsel moved for a mistrial. Thinking that a curative instruction would suffice, the trial judge stated, “Well my instruction with regard to [the outside information's] impropriety and the fact that it's not to be considered by any of the jurors including the one who did the research I firmly believe will leave no doubt whatsoever in their minds about the fact that it was inappropriate and that they're not to consider it any way shape or form in their deliberations.”

The appellate panel found the juror's Internet research of ODD, and her subsequent reporting of her findings to the rest of the jurors, constituted egregious misconduct. According to Jenkins v. State, 375 Md. 284 (2003), a presumption of prejudice attaches to egregious juror misconduct and presumption can only be rebutted by the court's voir dire of the jury's members. “In this case, the trial court did not voir dire the jury,” noted the appellate panel, “but instead gave a curative instruction admonishing the jury not to conduct outside research and reminding them that they were to render a verdict based only on the evidence presented at trial. It was error for the court to do so, because a specific inquiry into the thought processes of the jury was the only method of ascertaining whether the information about ODD, acquired through the juror's Internet research, improperly and irreparably influenced the jury's deliberative process to the prejudice of appellant or the State.” Consequently, the judgment was reversed and the case remanded for further proceedings.

Basis of Decision in Med-Mal Case Questioned

In many ways, it might seem particularly important for judges, as they discharge their duties, to become familiar as they can with all the available knowledge on the subject of the dispute. They've done this for decades, usually with the help of stacks of law books, and with little resistance from litigants. But perhaps because electronic formats have sped up the research process and greatly enhanced the number of sources judges can tap, more litigants are protesting. Shouldn't a judge's decision be based on the evidence presented by the opposing sides, they say, and on that evidence alone?

A recent ongoing medical malpractice suit offers an illustration of the issue. The case, Araoz v. U.S., concerns an infant who allegedly suffered a birth injury (a brachial plexus injury) due to a botched delivery. The case went before Magistrate Judge Patty Shwartz, in the Court of Federal Claims, in Newark, NJ. After a five-day bench trial, Judge Shwartz concluded that the plaintiff had failed to meet her burden of proof of malpractice under the Federal Tort Claims Act, 28 U.S.C. ' 2671-80 (FTCA). The judge's 30-page opinion detailed the reasons why she thought Dr. George Kyreakakis more likely than not was not the cause of the plaintiff's injuries.

Although the plaintiff agreed that the reasoning given was adequate to support the judge's findings, she argued on appeal that the judge's notations in a footnote evidenced the real basis on which she based her decision: “[F]actual research was undertaken to search out extraneous cases involving brachial plexus injuries.” (Appellant's Br. 17). The plaintiff contended that this resort to both published and unpublished cases not cited to by either party was improper, so the matter should be remanded to a different judge. The defense countered that the judge was simply engaging in a long-accepted and appropriate type of research into the state of the current law. In their appellate brief, the defense wrote: “In innumerable cases resulting in a judgment, trial judges conduct independent research to assure themselves of the current status of law. It is certainly not unusual or improper for a judge to cite factually similar cases to help explain the court's ruling ' . Adopting Araoz's speculative argument would create a new appellate issue that could be litigated in almost every case. The Court should reject Araoz's reasoning because the result would discourage trial judges from undertaking legal research as part of the decision-making process.”

A three-judge panel of the Third Circuit affirmed the verdict, finding that Shwartz's reasons for rendering her decision were based on the evidence presented at trial, and that her extraneous research was conducted for “informational” purposes only.

The Araoz plaintiff is now seeking en banc review and a new trial, stating in her Aug. 11 petition for rehearing, “The magistrate judge conducted [the] research solely to become informed of the extraneous facts, analysis and outcomes in fourteen state and federal cases, not one of which was cited by either party, which cases all involved the very same injury and liability positions as advanced by plaintiff-appellant. Once the magistrate judge ventured outside the record to explore factually similar cases for informational purposes the magistrate judge exceeded the bounds of what she permissibly could do as a fact finder in this non-jury trial.”

In an interview, the plaintiff's lawyer, Kenneth Berkowitz of Blume Goldfaden Berkowitz Donnelly Fried & Forte in Chatham, NJ, elaborated on the plaintiff's position: “If you are trying to figure out what the federal law is in New Jersey, you look at federal cases and New Jersey state cases. You would never look to Ohio law in an unpublished decision. There is no legitimate reason for doing it. The only reason each of these cases was cited is because they are factually the same, not for any legitimate research purpose.”

Of particular concern for the Araoz plaintiff is the fact that her medical expert was also the expert in one of the cases Shwartz consulted, and the judge in that previous case was critical of the expert.

Judge or Jury: Is There a Difference?

The legal community often assumes that judges are more rational than juries when it comes to weeding out the admissible information from the inadmissible before making a decision in a case. Juries can be swayed by emotion, by society's norms or by a consensus in the community, the thinking goes. Judges can better weed out the extraneous and focus on the admissible facts and the law that applies to them. But the reality is that while judges are better trained to compartmentalize the admissible and the inadmissible, like jurors, they are human. When they come upon an opinion of a fellow judge or of a medical expert while conducting research into a case before them, they may be swayed. And no one is there to voir dire the judge.

Accused criminals, like the one in Wardlow, enjoy heightened constitutional protections when it comes to the rights to confront the witnesses against them and to be judged only by evidence properly admitted in open court. But the concerns raised by these constitutional guarantees are also present in civil suits, like medical malpractice actions. Civil litigants, too, want to know what evidence will be used in making decisions in their cases, and they want the opportunity to refute it, if necessary. For example, in the Araoz case, couldn't Judge Shwartz's perception of plaintiff expert's reliability have been colored by the criticism of that expert that she read during her independent research? And, if so, shouldn't the Araoz plaintiff have been advised of this and been offered the opportunity to rebut that criticism?

Conclusion

Most legal scholars and courts agree that jurors should be severely limited in their access to information not presented in court. However, with judges' newfound easy access to every type of information ' reliable, unreliable or subject to interpretation ' the parties' control over the evidence considered in bench trials may be quickly eroding. That's what the plaintiff in Araoz is worried about, and probably with good reason.

Janice G. Inman is Editor-in-Chief of this newsletter.

What information should be used to decide a case ' only that offered by the opposing sides? If independent legal research is permissible, just how much is too much? These questions, which are being asked in the realms of medical malpractice, criminal and other types of cases, have become more imperative in the last few years.

As we have all observed, most of the developed world is fascinated by the Internet, as well as by other technological means of quickly and instantly finding information. Lawyers use the Internet to conduct research and to gauge the opinions of potential juror pools. Jurors are frequently admonished not to use it (or instant messaging services, among other frequently used technologies) to help them form opinions about the cases they are to decide. Judges are not immune ether; like everyone else, they have become used to having the world's trove of information at their fingertips, and they want to use it to make the best decisions possible.

Because of the growing debate over how much outside information judges and juries should be allowed to access, and about what should be done when these decision makers go too far, our courts are being asked to weigh in with their opinions.

Juror's Research Leads to Mistrial

Consider a recent case in which a jury's verdict was overturned because of “outside” research. In that case, Wardlaw v. State , 185 Md.App. 440 (Md.App. 5/8/09), the credibility of the underaged sexual abuse victim was particularly important to the case because the girl's testimony constituted the sole significant evidence against the defendant, her father. The jury convicted the man of three counts of assault, but it deadlocked on the charges of sexual child abuse and incest, so a mistrial was declared on those counts. The defendant, who received a sentence of two consecutive 10-year terms, appealed.

The issue on appeal concerned a juror who, during deliberations, conducted her own Internet-based research on a condition from which the crime victim allegedly suffered: oppositional defiant disorder (ODD). Through her independent research, the juror learned that those who suffer from ODD are prone to lying. She relayed her findings to the other jurors during deliberations. This information might have been of major importance in the Wardlow case because the alleged victim's testimony was the only meaningful evidence that crimes had been committed against her.

The jury's members, concerned that they had been given information they perhaps should not have had, sent a note to the judge, stating: “One juror indicated at the beginning of our deliberations that she researched ODD online Wednesday evening and found that lying was a part of the illness. I am concerned that her statement is an undue influence on the rest of the jurors. Was this okay?” Further down, the note said, “And the foreman needs to know is lying a part of the illness.”

After seeing the note, defense counsel moved for a mistrial. Thinking that a curative instruction would suffice, the trial judge stated, “Well my instruction with regard to [the outside information's] impropriety and the fact that it's not to be considered by any of the jurors including the one who did the research I firmly believe will leave no doubt whatsoever in their minds about the fact that it was inappropriate and that they're not to consider it any way shape or form in their deliberations.”

The appellate panel found the juror's Internet research of ODD, and her subsequent reporting of her findings to the rest of the jurors, constituted egregious misconduct. According to Jenkins v. State, 375 Md. 284 (2003), a presumption of prejudice attaches to egregious juror misconduct and presumption can only be rebutted by the court's voir dire of the jury's members. “In this case, the trial court did not voir dire the jury,” noted the appellate panel, “but instead gave a curative instruction admonishing the jury not to conduct outside research and reminding them that they were to render a verdict based only on the evidence presented at trial. It was error for the court to do so, because a specific inquiry into the thought processes of the jury was the only method of ascertaining whether the information about ODD, acquired through the juror's Internet research, improperly and irreparably influenced the jury's deliberative process to the prejudice of appellant or the State.” Consequently, the judgment was reversed and the case remanded for further proceedings.

Basis of Decision in Med-Mal Case Questioned

In many ways, it might seem particularly important for judges, as they discharge their duties, to become familiar as they can with all the available knowledge on the subject of the dispute. They've done this for decades, usually with the help of stacks of law books, and with little resistance from litigants. But perhaps because electronic formats have sped up the research process and greatly enhanced the number of sources judges can tap, more litigants are protesting. Shouldn't a judge's decision be based on the evidence presented by the opposing sides, they say, and on that evidence alone?

A recent ongoing medical malpractice suit offers an illustration of the issue. The case, Araoz v. U.S., concerns an infant who allegedly suffered a birth injury (a brachial plexus injury) due to a botched delivery. The case went before Magistrate Judge Patty Shwartz, in the Court of Federal Claims, in Newark, NJ. After a five-day bench trial, Judge Shwartz concluded that the plaintiff had failed to meet her burden of proof of malpractice under the Federal Tort Claims Act, 28 U.S.C. ' 2671-80 (FTCA). The judge's 30-page opinion detailed the reasons why she thought Dr. George Kyreakakis more likely than not was not the cause of the plaintiff's injuries.

Although the plaintiff agreed that the reasoning given was adequate to support the judge's findings, she argued on appeal that the judge's notations in a footnote evidenced the real basis on which she based her decision: “[F]actual research was undertaken to search out extraneous cases involving brachial plexus injuries.” (Appellant's Br. 17). The plaintiff contended that this resort to both published and unpublished cases not cited to by either party was improper, so the matter should be remanded to a different judge. The defense countered that the judge was simply engaging in a long-accepted and appropriate type of research into the state of the current law. In their appellate brief, the defense wrote: “In innumerable cases resulting in a judgment, trial judges conduct independent research to assure themselves of the current status of law. It is certainly not unusual or improper for a judge to cite factually similar cases to help explain the court's ruling ' . Adopting Araoz's speculative argument would create a new appellate issue that could be litigated in almost every case. The Court should reject Araoz's reasoning because the result would discourage trial judges from undertaking legal research as part of the decision-making process.”

A three-judge panel of the Third Circuit affirmed the verdict, finding that Shwartz's reasons for rendering her decision were based on the evidence presented at trial, and that her extraneous research was conducted for “informational” purposes only.

The Araoz plaintiff is now seeking en banc review and a new trial, stating in her Aug. 11 petition for rehearing, “The magistrate judge conducted [the] research solely to become informed of the extraneous facts, analysis and outcomes in fourteen state and federal cases, not one of which was cited by either party, which cases all involved the very same injury and liability positions as advanced by plaintiff-appellant. Once the magistrate judge ventured outside the record to explore factually similar cases for informational purposes the magistrate judge exceeded the bounds of what she permissibly could do as a fact finder in this non-jury trial.”

In an interview, the plaintiff's lawyer, Kenneth Berkowitz of Blume Goldfaden Berkowitz Donnelly Fried & Forte in Chatham, NJ, elaborated on the plaintiff's position: “If you are trying to figure out what the federal law is in New Jersey, you look at federal cases and New Jersey state cases. You would never look to Ohio law in an unpublished decision. There is no legitimate reason for doing it. The only reason each of these cases was cited is because they are factually the same, not for any legitimate research purpose.”

Of particular concern for the Araoz plaintiff is the fact that her medical expert was also the expert in one of the cases Shwartz consulted, and the judge in that previous case was critical of the expert.

Judge or Jury: Is There a Difference?

The legal community often assumes that judges are more rational than juries when it comes to weeding out the admissible information from the inadmissible before making a decision in a case. Juries can be swayed by emotion, by society's norms or by a consensus in the community, the thinking goes. Judges can better weed out the extraneous and focus on the admissible facts and the law that applies to them. But the reality is that while judges are better trained to compartmentalize the admissible and the inadmissible, like jurors, they are human. When they come upon an opinion of a fellow judge or of a medical expert while conducting research into a case before them, they may be swayed. And no one is there to voir dire the judge.

Accused criminals, like the one in Wardlow, enjoy heightened constitutional protections when it comes to the rights to confront the witnesses against them and to be judged only by evidence properly admitted in open court. But the concerns raised by these constitutional guarantees are also present in civil suits, like medical malpractice actions. Civil litigants, too, want to know what evidence will be used in making decisions in their cases, and they want the opportunity to refute it, if necessary. For example, in the Araoz case, couldn't Judge Shwartz's perception of plaintiff expert's reliability have been colored by the criticism of that expert that she read during her independent research? And, if so, shouldn't the Araoz plaintiff have been advised of this and been offered the opportunity to rebut that criticism?

Conclusion

Most legal scholars and courts agree that jurors should be severely limited in their access to information not presented in court. However, with judges' newfound easy access to every type of information ' reliable, unreliable or subject to interpretation ' the parties' control over the evidence considered in bench trials may be quickly eroding. That's what the plaintiff in Araoz is worried about, and probably with good reason.

Janice G. Inman is Editor-in-Chief of this newsletter.