January-February 2013

McQuarrie jurors: “Who needs sworn testimony when we’ve got Google?”

Emily Johnson-Liu

Assistant Criminal ­District Attorney in Collin County

If you really stopped to think about it, there are a lot of ways that jurors could jeopardize your next jury trial. They could visit the scene of the crime, flip a coin to decide the case, hold it against the defendant that he did not testify, consider how parole would apply in the defendant’s case, take a bribe, get their best friend’s input on how to decide the case, or read a newspaper article about the case and discover that the defendant’s confession was thrown out. The Internet has made some juror misconduct a little easier. With the information many counties put online, jurors can find out if the defendant is currently in the county jail or has prior arrests, or they can bring up the street view of the crime scene on Google without ever leaving the jury room. Or if they were in conflict about some scientific, medical, technical, or even legal question, instead of a trip to the library, they may simply search for the answer from the smartphone in their pocket.
    But even though jurors are the ones who know best if they (or one among them) committed this kind of misconduct, a centuries-old rule, Federal Rule of Evidence 606(b), prevents jurors from testifying about some of the misconduct that goes on during deliberation. As a general rule, once a verdict has been rendered, jurors are prohibited from testifying about what happened or what was said during their deliberations. The rule is there to prevent harassment of jurors by a party bent on finding any way he can to impeach the verdict. It encourages jurors to have full and frank discussions with each other, free from the worry that anything they say will later be publically aired and criticized after the trial. Under the rule, the trial participants and the community have a greater sense of finality that the verdict will not be endlessly questioned. It ensures that jurors with second thoughts after the verdict will not be given the power to erase the verdict based solely on their say-so. Also, it preserves confidence in our jury system that would likely be eroded if we were to know about every little misstep jurors make.
    All of that said, some misconduct may be widespread and serious enough to justify an exception to the general rule. And in McQuarrie v. State, the Court of Criminal Appeals found that a juror who Googled information about the trial and then shared her findings with other jurors fell within the exception, rather than the general rule.1

The facts of McQuarrie
Thomas McQuarrie was accused of raping a female friend when she spent the night at his home. McQuarrie and a male friend were drinking and using cocaine. McQuarrie had given the victim a drink of water, and after she drank it, she did not feel well and went to bed. When she awoke the next morning, her shorts and underclothes were pushed to the side, and she felt that things just were not right. She was not sure she had been sexually assaulted but eventually reported it to police. McQuarrie’s DNA was found on her clothes and his own admission confirmed that the two had had intercourse.2 McQuarrie claimed it was consensual. Although the victim was a lesbian and had been in a relationship with the same woman for four years, McQuarrie claimed that she had been wanting to experiment with him. A police officer testified that it was possible that the victim had been drugged and that such drugs leave the blood quickly, making them difficult to detect.
    After the first day of deliberation, the jury sent a note that it was split 9–3 in favor of guilt. They reached a verdict the next day, but in a motion for new trial, McQuarrie produced evidence from two jurors who said that during the overnight recess in deliberations, a third juror had gone on the Internet to research the effects of date-rape drugs and reported what she found to the other jurors. The jurors stated that her findings persuaded two of the jurors to change their votes to guilty. The trial judge excluded the jurors’ testimony, following the general rule banning juror testimony about their own deliberations, and the court of appeals agreed.
Broader test
When the Court of Criminal Appeals decided McQuarrie, it ruled by a vote of 5 to 4 that jurors can testify (or write an affidavit) after their verdict about a juror who conducts research and shares that information during deliberation.3 The decision widened the exception to the rule, allowing jurors to testify in more circumstances than that permitted by several courts of appeals. Those courts and the dissenters on the Court of Criminal Appeals were persuaded that the Texas version of the exceptions was narrower than the exceptions used by the federal courts.4 Under Federal Rule of Evidence 606(b), jurors are generally prohibited from impeaching their own verdicts except that jurors can testify about:
    1) whether extraneous prejudicial information was improperly brought to the jury’s attention, or
    2) whether any outside influence was improperly brought to bear upon any juror.5
    The Texas Rule adopted the second exception but not the first.6 So when the Court of Criminal Appeals decided whether a juror’s Googling and sharing constituted an “outside influence,” it had to consider if the lack of “extraneous prejudicial information” in the Texas rule was meant to narrow the exception or simply streamline two similar concepts. Judge Cochran, in dissent, outlined the distinction between the two federal exceptions, where “outside influence” was understood as something akin to jury tampering (like bribery, threats, or a communication aimed at influencing the verdict) and “extraneous prejudicial information,” was information outside of the evidence presented at trial (like newspaper articles or television reports).7 But the majority on the Court of Criminal Appeals found that the difference between the “outside influence” exception and the “extraneous prejudicial information” exception was not necessarily so stark. The court believed the plain language of “outside influence” was broad enough to include when a juror brings additional information not admitted at trial into deliberations. Under this interpretation, regardless whether the source of the extraneous information is Google or someone aiming to strong-arm a verdict, jurors can testify about either “outside influence” on their deliberations.
    The upshot of this decision is that there are now potentially more circumstances where jurors will be permitted to testify. The majority does not fear their decision will open the floodgates to post-trial juror harassment, however, because the federal system appears to be functioning well enough with both the “extraneous information” and “outside influence” exceptions.

So what can and can’t jurors testify about now?
Under the court’s interpretation of “outside influence,” jurors can testify about “something originating from a source outside of the jury room and other than from the jurors themselves.” The court’s interpretation talks about things that occur “outside” of the jury room, and in the McQuarrie case, the juror actually conducted the Internet research at home on an overnight break. But given the portability of devices that can access the Internet these days, it is only a matter of time before a juror searches for information about a case while still within the jury room itself. The court clearly stated that information originating from a source on the Internet was a source other than the jurors themselves, so it is not much of a stretch to conclude that Googling in the jury room will also be considered an “outside influence” that jurors could testify about.
    Jurors should not, however, be allowed to testify about anything that was part of a juror’s personal knowledge and experience before the trial. So if, for example, a juror on McQuarrie’s jury already knew about the effects of date-rape drugs because of a medical background and shared this information with the other jurors during deliberation, jurors would still be prohibited from testifying about this. Subjecting the jury to questions about their own knowledge and experience delves too much into actual deliberations, and because jurors bring this information with them to the case, the parties have the opportunity to avoid confrontation concerns by asking about juror experiences during voir dire.
    One consequence of allowing more inquiries into deliberations is that it is likely to make things messier when it comes to how much a juror can say. Under Rule of Evidence 606(b), even when there is an outside influence, this does not make anything and everything that occurred during deliberations fair game for testimony. One interpretation of the rule is that the exception for outside influence allows jurors to testify only about “whether” an outside influence was improperly brought to bear upon a juror. Thereafter, the general rule still provides that jurors cannot testify to the effect or influence of anything on their verdict. So courts cannot delve into the effect an outside influence had on the jury but, confusingly, before there can be an outside influence to talk about, it must have been “brought to bear” upon a juror, i.e., it must have had some influence.
    In the case of bribery or threats, the difference between the outside influence and the effect it might have had on the jury is easier to see. A juror can testify that someone offered a particular reward. Then there is the separate matter of whether that reward is likely to impact a juror’s verdict. But where the outside influence is information, that is much harder to parse out. That difficulty is reflected in the court’s opinion—which says that courts can “inquire as to whether jurors received such outside information and the impact it had on their verdict without delving into their actual deliberations.” Easier said than done.
    The court goes on to say that questions asked of jurors must be limited to the nature of the unauthorized information or communication, and then instead of assessing actual harm to that particular jury, courts will apply an objective test for harm: “whether there is a reasonable possibility that [the information] had a prejudicial effect on the ‘hypothetical average juror.’”8 So while it would likely be a first reaction for many prosecutors to want to probe the jurors about what role, if any, the Internet research (or other after-acquired information) played in their thoughts or their verdict, the court seems to say this part of deliberation is still off-limits. And the standard for harm is only a reasonable possibility—not probability—that the average juror would be prejudiced. Hopefully, the court means prejudice in the sense of affecting the verdict. Otherwise, if the bailiff tells the jury that the defendant has not taken a bath in several days and smells revolting up close, I suppose a court could order a new trial because such information would have a “prejudicial effect” on the average juror. But the prejudice that ought to control is whether the information is likely to have an effect on the verdict. 

What now?
Preventing jurors from resorting to the Internet whenever they are in doubt, in conflict, or merely curious will not be an easy task. As one article about jurors who Google observed: “The deeply ingrained habit of … resolving even minor factual disputes by getting instant answers online makes it difficult to accept the prohibition on doing so when confronted with a truly important decision.”9 So jury instructions should address those concerns head-on. Many jurors do not understand what is wrong with conducting their own research and may not even realize that doing so violates their oath and the judge’s instructions. In the McQuarrie case, jurors were instructed multiple times that the evidence they were to consider would include only testimony heard in court and exhibits admitted during the trial, but not all jurors realize that researching information violates this rule not to look at outside “evidence.” Juror instructions can do more to educate jurors about the reasons why Googling to supplement their knowledge base is incompatible with their role as a juror. Here’s an example:

In our daily lives we may be used to routinely looking for information online, on Google, or on social media. In a trial it can be very tempting for jurors to do their own research or to look up a definition of a term to make sure they are making the correct decision. You must resist that temptation for our system of justice to work as it should. The information you find may be inaccurate, out-of-date, or incomplete, or it may not apply to the case for another reason. The parties are entitled to have a trial based on evidence and information that they know about, and it is only fair that the parties have the opportunity to refute, explain, or correct any evidence that you consider. For these reasons, I specifically instruct that you must decide the case only on the evidence received here in court and on the law that I give you.10

More examples can be found at http://www.uscourts.gov/uscourts/News/2012/jury-instructions.pdf and http://bit.ly/cb3y3a.
    In addition to proposing jury instructions in an important trial or in a court in which you regularly appear, you might also consider addressing the issue in voir dire, particularly if you expect the jurors will be asked to resolve an issue that lends itself to a Google search. If you know your opponent in a DWI trial has a reputation for attacking the reliability of the Intoxilyzer, and you have concerns that jurors will want outside help in resolving any uncertainty, ask the venire about their ability to refrain from looking for any information related to the trial. Even closing argument may not be too late to caution jurors that while more information may help them resolve difficult questions in their own lives, Google is no replacement for testimony brought and sworn to in open court.


1 McQuarrie v. State, No. PD-0803-11, 2012 WL 4796001 (Tex. Crim. App. Oct. 10, 2012). 
2 McQuarrie v. State, No. 13-09-00233-CR, 2011 WL 1442335, at *3 (Tex. App.—Corpus Christi Apr. 14, 2011, pet. granted).
3 McQuarrie, 2012 WL 4796001, at *8.
4 See McQuarrie, 2012 WL 4796001 (Keller, P.J., and Cochran, J., dissenting).
5 Fed. R. Evid. 606(b).
6 Tex. R. Evid. 606(b).
7 2012 WL 4796001, at *17 (Cochran, J., dissenting).
8 2012 WL 4796001, at *9.
9 Susan Macpherson & Beth Bonora, “The Wired Juror, Un-plugged,” Trial, Nov. 2010, at 40, 42.
10 Adapted from proposed instructions in Thaddeus Hoffmeister, “Google, Gadgets, and Guilt: The Digital Age’s Effect on Juries,” 83 University of Colorado Law Review 409 (2012).