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Federal Evidence Blog

So I probably spent a good hour trying to come up with a blog post topic for this week. I began writing about various things, but kept finding myself dissatisfied with each topic I chose, and therefore starting anew again and again and again. Then I turned to the syllabus for some guidance and noted that a suitable blog topic would be a discussion of a legal research website discovered through InSITE. See Course Syllabus (note: this link may only work if you’re already logged into Blackboard and are enrolled in the course). Although I don’t have much experience with InSITE, I have been less than impressed with it in the past. Nevertheless, because I’ve heard it’s a good resource, I was somewhat eager to give it another shot. I’m glad I did since, as you’ll soon learn, I ended up being quite pleased with its functionality.

Once on InSITE I decided to browse by topic to see if anything caught my fancy. The topic of Evidence immediately caught my eye (no doubt because I’ve been struggling with some evidentiary issues lately in connection with my preparation for an upcoming mock trial tournament). InSITE provided me with 15 annotations regarding evidence. I remember thinking to myself, “only fifteen?” My initial dismay with the small number of results was tempered by the fact that the vast majority of the results really did pique my interest. Having just discussed blawgs in class last week, however, my attention was immediately drawn to the fifth result: Federal Evidence Blog. As Amy Emerson describes it, this blog is “an electronic legal journal [that] focuses specifically on recent cases and issues involving the Federal Rules of Evidence, together with various other cutting edge matters in evidence.” See the InSITE listing.

In providing some commentary on the Federal Evidence Blog (FEB), this blog post will proceed in two parts. First, I’ll discuss my evaluations of the blog as a whole. Second, I’ll review a recent FEB post.

Part I. The Federal Evidence Blog as a Whole

So recently Professor Haight had asked us to identify a blawg on a legal topic of interest that we would enjoy following regularly. Had I been aware of FEB then, I very well might have identified this blog. Because I find evidentiary rules inherently interesting, it’s difficult for me to imagine how someone without such an interest would view FEB. I’d assume that FEB wouldn’t be a terribly exciting read for such individuals. Therefore, assuming that one is interested in learning about the current developments of the Federal Rules of Evidence, FEB is an excellent source of information! To begin, FEB is updated regularly (reviewing the posts suggests that updates occur about fives time per week). Most of the entries reference recent federal court decisions, each of which materially impact how we interpret the Federal Rules of Evidence. A feature that I really appreciate is that the blog goes above and beyond simply describing the relevant evidence rules and issues by actually providing hyperlinks to the language of the rules at issue as well as to the actual opinions themselves. Each entry also has a link allowing readers to provide comments (although it doesn’t seem that many comments are left).

Importantly, FEB can also serve as a research tool because it has a feature allowing users to search by key word through its archives. For example, if I were interested in reading about recent developments on hearsay and its exceptions, I could type “hearsay” into the search bar. This search then retrieves developments on, among others, FRE 804(b)(3) (e.g., 05/10/2010 entry), FRE 703 (e.g., 07/08/2008 entry), and FRE 803(8) (e.g., 10/03/2008 entry). Admittedly, these keyword searches are fairly limited since FEB only dates back to June, 2008. I’m not sure whether this is because FEB began that year or because older entries are periodically removed. Regardless, I suppose it’s irrelevant since the whole point of FEB is to showcase “recent federal evidence cases and developments.” FEB’s about page (emphasis added). In other words, it makes sense that the entries don’t date too far back since otherwise we would no longer necessarily be dealing with “recent” developments.

Part II. Reflections on a Recent Post

I thought I’d end my post by reflecting on a FEB post that I found worthy of comment. The post I’ll discuss, which was posted earlier this month on February 9th, is entitled “Rebutting the Presumption of Prejudice from Juror’s Google Search.” In light of the fact that our class just talked about the impact of social media and other internet sites on discovery and litigation this morning, I felt that this entry was particularly timely. Basically, the entry explains that a juror in a conspiracy case had learned, via google, of a co-conspirator’s guilt, and then relayed that information to the other jurors during deliberations. Under FRE 606(b), jurors are prohibited from considering this type of extra-record evidence. Furthermore, such consideration generally gives rise to a presumption of prejudice. Here, however, because the defendant himself had revealed his co-conspirator’s guilt at trial, any reliance on the google search was harmless error. Therefore, much to the chagrin of the defendant, a mistrial ruling was unnecessary.

I have a few reactions to this. First, insofar as the full record adequately demonstrated that there really wasn’t prejudice, I’d have to agree with the holding. Indeed, if the information obtained from the google search itself had been adequately presented to the jury at trial, as it was in this case, then no new information was obtained. I’m uneasy about how this all plays out given other facts, though. After all, it can’t always be true that something presented at trial will be retained by the jury and deliberated upon. Let’s imagine, for example, that we know for certain that the jury in this case overlooked the testimony regarding the co-conspirator’s guilt when presented at trial. Given this situation, it’s obvious that information obtained from the google search really was prejudicial! In this situation the jury wouldn’t have considered the information if it weren’t for the improper extra-record evidence. No doubt this would be problematic. A larger problem comes from our emphasis on the secrecy of jury deliberation. Because the contents of jury deliberations are not discoverable under our evidence rules, to me our whole focus on prejudice seems like a fiction. Indeed, my concern is with how we are to go about determining when prejudice inheres. If we’re not thinking of prejudice as a constructive concept such that prejudice can never result from outside information if that information had already been presented in court, then we need to somehow be able to identify prejudice when it exists. And this requires drawing lines; we must somehow be able to delineate when outside information really has caused prejudice, and when it hasn’t. And we must draw this line without access to the content of the jury deliberations. The court in this case seems to acknowledge this issue by suggesting that courts are to consider the circumstances surrounding the jurors’ exposure to the information. Fair enough, but this doesn’t provide much guidance in actually drawing lines. What if the co-conspirator’s guilt was brought out very subtly and briefly on direct examination and was not touched upon on cross. On those imagined facts, how would we really know whether or not jurors would retain that information and incorporate it in their deliberations??

I have a second reaction worth briefly mentioning: what the heck was this juror doing? Was he reprimanded in any way? I find it concerning that our jurors are engaging in this type of behavior. It’s inappropriate to do outside research in the first instance. It’s even more outrageous to then present the improperly-obtained information to the entire jury! This just cannot occur! Understandably jurors are going to want to have all the information out there. Citizens like to be informed before they make decisions. That’s understandable. But this is just inconsistent with our judicial system. Do we have something in place to protect against outside research? What’s the disincentive for these jurors?

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