Untangling the Web Modern trials can involve hundreds of witnesses and thousands of exhibits: a panoply of information that jurors cannot store in their heads. Even in shorter trials, jurors would be well-served by note-taking. Psychologists have known for some time that the dual process of hearing and writing enhances retention.134 And trial judges are well within their authority to allow note-taking during trials.135 If courts are going to insist on controlling the flow of information during trial, they will need to accept innovations to improve juror comprehension, such as allowing jurors to take notes, to call and question witnesses, to review evidence and exhibits during deliberation, and to access reference materials. Many such practices are well-established in military tribunals, which allow jurors (known as “members�) to be quite engaged during trial.136 Courts in Colorado and Arizona have also taken steps to engage jurors by permitting them to deliberate as a case progresses.137 In the early 1990s, one hundred law professors, attorneys, judges, researchers, and representatives of business, insurance, and various interest groups met to consider the workings of the jury system and to recommend improvements. The participants did not agree about everything, but the majority strongly supported making jurors more active during trials: Jurors need not and should not be merely passive listeners in trials, but instead should be given the tools to become more active participants in the search for just results. To that end, trial procedures and evidentiary rules should take greater advantage of modern methods of communication and recognize modern understanding of how people learn and make decisions.138
A New Approach to Juror Internet Research Jurors want answers to their questions. Judges increasingly allow jurors to submit questions to the court.139 This is a good start. But courts are competing with pocket-sized encyclopedias inside every cell phone, so they will need to explain to juries exactly why the court rules exist. If a concrete, evidence-based explanation cannot be proffered, perhaps these rules should be revised. Either way, lawyers must be permitted to deliver useful information to jurors to reduce the desire to turn to outside sources. But even with these reforms, jurors are probably not going to stop looking at outside information. The best way to keep jurors away from Wikipedia and other Internet resources would be to sequester them without any access to electronic devices, but this is unrealistic. Also, sequestration is rarely practical on a large scale because it is prohibitively expensive and tends to promote mistrust for the jury system.140 Confiscating cell phones and similar devices during proceedings and deliberations might work, but may sow juror discontent and will not affect after-hours research. A more realistic response would be for attorneys and courts to conduct their own Internet research in advance to identify what information about the case is available online, 134. Elizabeth F. Loftus, Memory 19-20 (1980). 135. See, e.g., Johnson v. State, 887 S.W.2d 957 (Tex. Crim. App. 1994); see also Sonja Larsen, Annotation, Taking and Use of Trial Notes by Jury, 36 A.L.R. 5th § 255 (1996). 136. David A. Anderson, Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial, 174 Mil. L. Rev. 92, 93-94 (2002). 137. Colo. Civ. Jury Instr. 1:4 (4th ed. 2010); Ariz. R. Civ. P. 39(f ); Paula L. Hannaford, Valerie P. Hans & G. Thomas Munsterman, Permitting Jury Discussions During Trial: Impact of the Arizona Reform, 24 L. & Hum. Behav. 359, 360 (2000); Janessa E. Shtabsky, Comment, A More Active Jury: Has Arizona Set the Standard for Reform with Its New Jury Rules?, 28 Ariz. St. L.J. 1009, 1028 (1996). 138. ABA/Brookings Symposium, supra note 124. 139. See infra note 141. 140. James P. Levine, The Impact of Sequestration on Juries, 79 Judicature 266 (1995). Reynolds Courts & Media Law Journal
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