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. 

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