Breaking the Black Box: When Jury Experimentation Becomes Jury Misconduct

For centuries, juries in criminal trials have retreated to the privacy of their “black box” to deliberate and decide a defendant’s guilt or innocence. The secrecy of the deliberation process is a hallmark of a democratic system that tasks the public with holding their neighbors accountable to community standards. What happens, however, when this curtain of confidentiality shields troubling impropriety? Jury experimentation with evidence is one circumstance that may justify a look inside the black box. Although jurors are encouraged during deliberations to examine trial evidence, experiments in the jury room may violate a defendant’s rights to due process and a fair trial by introducing “new evidence” that the defendant does not have the opportunity to challenge in open court. Moreover, procedural “no-impeachment” rules often prohibit jurors from testifying to the process through which they reached their verdict after it has been delivered. In the absence of clarification from the U.S. Supreme Court, courts at the state and federal level are deeply split on how to approach the issue of juror experimentation with evidence. This Note examines the tension between the judicial system’s policy of jury secrecy and the potentially competing commitment to upholding the constitutional rights of defendants. This Note argues against revising the federal and state no-impeachment rules to create additional windows into the juror deliberation process, which would disturb the important function of judicial finality. Rather, trial counsel should utilize the full breadth of in-court mechanisms available to prevent improper experimentation. Judges should consider the extent to which pre-verdict remedies were used and whether the defendant was prejudiced when determining whether juror misconduct occurred.