Googling prospective jurors during voir dire–what’s wrong with that?

The Federal Judicial Center just published the following article on the use of social media during trials. It is fascinating on a lot of fronts, and I will briefly writ about one of those aspects in a moment.

But first read the article:

Social media use by jurors, and the problems resulting from it, remains a relatively infrequent occurrence, according to a survey of U.S. district judges.

Nearly 500 judges in all 94 districts responded to a Federal Judicial Center survey assessing jurors’ use of social media. The findings were published in May 2014.

Among other questions, the survey asked the judges for their strategies for curbing social media use by jurors in trials and jury deliberations. For the first time, too, judges were asked about the use of social media by attorneys.

Of the 494 judges responding to the survey, the majority of judges explained to jurors in plain language why social media is banned. This strategy must be effective; only 33 of the 494 judges reported any detectable instances of jurors using social media – and then in only one or two of their cases and mainly during trials.

Jurors access Facebook and personal blogs more often than instant messaging services. Six judges reported that a juror divulged confidential information about a case. Additionally, three judges reported that a juror communicated or attempted to communicate directly with participants in the case and two jurors revealed aspects of the deliberation process.

Judges generally learned of the inappropriate use of social media from other jurors, court staff, or attorneys in the case. Most judges cautioned a juror when social media use was discovered, but some removed the juror from the jury, while still others dealt with the juror post-trial. One juror was held in contempt of court.

For the first time, social media use by attorneys was assessed. Most judges stated they did not know whether attorneys were using social media during voir dire, and most do not address the issue with attorneys before voir dire. Only 25 judges reported they knew attorneys had used social media in at least one of their trials, usually during voir dire. Attorneys may have used social media to look at prospective jurors’ Facebook pages, to run names through search engines, or to look at online profiles, blogs or websites. Of the 466 judges responding to this survey question, 120 do not allow attorneys to research prospective jurors online during voir dire.

For more on social media use in the courtroom, the Federal Judicial Center has posted this study, as well as a 2011 survey of social media use.

Survey Finds Infrequent Social Media Use by Jurors, Federal Judicial Center (July 29, 2014).

There are interesting aspects to this study, among them being that social media use by jurors does not seem to be a big problem, particularly when judges caution the jurors. But, what I found astounding, and on the face of it silly, was this finding: “Of the 466 judges responding to this survey question, 120 do not allow attorneys to research prospective jurors online during voir dire.”

So long as the use of social media by a lawyer in the courtroom picking a jury is discreet, why in the world would a federal judge interfere with a lawyer using social media to obtain information about jurors during the jury selection process? That doesn’t make any sense to me? But, I’ve only been doing this for about 25 years, so I am open to eduction?

Civil and criminal federal practitioners, what say you? Is there any good reason some crusty old broken down guy like me ought to stop you from using Google (or some other search engine) while you are selecting your jury just because I think the Net is like voodoo?*

RGK

*In our court, we provide WiFi free to lawyers and counsel tables have computer hook-ups. 

11 responses

  1. In my experience, your court is progressive in permitting WiFi access to lawyers. In Arkansas, we typically don’t usually have Internet access in court unless it’s through a cellular device like an iPad or iPhone. Use of cellular devices at all It is a judge-by-judge decision. Several judges at one courthouse have the marshals confiscate cell phones from everyone (attorneys included) upon entry to the building, locking them in old post office boxes. In many instances, there’s simply no way to use social media in the courtroom.

    I don’t see anything wrong with researching jurors online during voir dire. However, from a practical standpoint, I agree with the judges who responded that this is ordinarily something that should be done before trial. I don’t see how the first couple of lawyers on a trial team would have time to do online research during voir dire. I’d be too concerned about missing something going on in the courtroom.

  2. Chaney Law Firm,

    Thanks for your engagement. I agree that research on jurors should be done before trial, particularly where as here we hand out the answers to a standard jury questionnaire (prepared by our Federal Practice Committee) several days before trial. I also agree that, if it were me, I might not want the distraction. But because you and I wouldn’t be googling when picking a jury, does not mean that all our brothers and sisters would not find it useful.

    All the best.

    RGK

  3. Let me add that the online research extends beyond simply checking Facebook and Twitter. My associate found, on PACER, that one juror we had selected in a case (there was a week between jury selection and trial) had not truthfully disclosed that she had been a (unsuccessful) plaintiff in a prior discrimination case, against an affiliate of my client, and she had been represented by a lawyer at the firm representing the plaintiff in our case (a different lawyer there, so plaintiff’s lawyer did not recognize her or her name). As it turns out, she had not parted ways amicably with that firm, so both sides eyed her suspicion after learning of the facts. The judge readily agreed that she would be removed from the panel.

    The episode stood as a lesson in my mind that the oath does not always induce candor in prospective jurors and lawyers must take President Reagan’s advice (taken from a Russian proverb) in the disarmament context: Trust but verify.

  4. I am a civil trial lawyer in three federal districts, which is where about 90% of my cases are tried. Picking a jury without the use of the Internet, under current practice, is malpractice.

    For the last several years, I’ve been given only the jury questionnaire, and if lucky, 10 minutes to voir dire. That’s only if the judge allows questions from the lawyers. You learn next to nothing from the questionnaire. Is it really useful whether the potential jurors have been on previous juries? Do you get the sense of them by where they live?

    Parties are entitled to know how potential jurors think and whether they have any unduly prejudicial leanings. A lawyer can’t uncover that information in ten minutes with 35 potential jurors. But give a paralegal a computer, the questionnaire and 15 minutes–now give me my 10 minutes.

    The rules have squeezed jury selection into a crap shoot, and a trial lawyer can hardly discern whether a potential juror really wants to be on the case, which is a dangerous juror; wants to get the hell out of the courtroom and go on with life; or is a true neutral, wanting only to serve their duty. The last is a true rarity. So, how else do we determine whether a juror is fit?

    Maybe I’m being a bit obtuse. But ask yourself this: how confident are you that none of your jurors are felons? Think before responding–there are a lot of holes in the system.

    Last year, I took a paralegal and a wifi hotspot with me to every trial, largely for this reason. I plan to continue.

  5. RGK,
    I’m with Skink on this, especially in the criminal context. In our jurisdiction, defense lawyers do not have the same easy access to juror criminal history that the prosecution does. I think it would be beneficial to allow lawyers to have access to the internet…

    However, a contrast. In my classes (and I have been guilty of this!) where computers are allowed, you will see a lot of students on facebook or playing games while the professor is teaching. Is it malpractice for a lawyer to be seen playing minesweeper or solitaire while opposing counsel is making a closing argument and miss a key objection?

  6. SLS,

    Regarding your last question, the anwer is “Yes.” But there may be an upside if you are playing on-line poker, win a huge jackpot, and stash it in a hidden off shore trust. In that event, you don’t care a wit about malpractice. Son, you gotta start thinkin’ like a lawyer.

    All the best.

    RGK

  7. When you search the Internet for information on a prospective juror, how do you verify the match up between the juror and the information you find? What do you do about false name matches?

    If, as I suspect it is, the verification scheme is “well, you just look for a photograph, or enough information to match things up”, can I use the same verification scheme to identify myself to the court? From my non-lawyer point of view it seems like it should be symmetrical.

    Lastly, could someone get out of jury duty by liking enough Facebook pages in support of jury nullification?

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