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. 

A terrific and wry letter on jury service–federal trial lawyers and federal trial judges take note!

One of the unexpected joys of writing this blog is the correspondence I receive from smart (and funny) lay persons who have have served as jurors or who  have been called to jury service.  In this post, I reprint, with the writer’s permission, an insightful and wry account from one such person, who also happens to be a good writer.

The only significant edits I have made is to redact the names of the writer and his son, and I do so because the writer’s son (a brilliant kid who just graduated from the University of Chicago law school) is beginning a federal district court clerkship this summer.  Because some federal judges would prefer that their clerks remain totally anonymous, I thought it best that I redact names.

With that by way introduction, here is an e-mail (really a letter) on jury service that every federal trial lawyer and every federal trial judge ought to read with care.

Dear Judge RGK,

Executive Summary: Even the most rote and routine parts of a trial can seem confusing and out of place to jurors who have never seen a real trial. Help these jurors to put questions/answers into a context.

I’ve been reading for a couple of months. I somehow found your blog via my son who is graduating from law school this June.

Your article* about how you handle jurors impressed me as every time I’ve been called, it’s like being cattle herded through airport security, with the occasional, and too well practiced, “Thank you for your service.” Is that the judicial version of “Have a nice day.”?

The case was a simple drug possession case. The defendant ran a red light. Patrol cop pulled him over. The cop saw a gun in the car, then searched the defendant and found drugs.

At the trial, the first witness was the patrol officer. The D.A. established the officer as an on duty police office, then went into this line of questioning.

“You stopped the car at the intersection of Broadway and Dobson?”
“Is that intersection in the City of Mesa?”
“Is that intersection in the County of Maricopa?”
“Is that intersection in the State of Arizona?”

The D.A. then moved on to a different line of questioning, but I was asking myself what were those questions about. I must admit I ignored the proceedings for a few minutes until it finally dawned on me the D.A. was establishing the jurisdiction. Establishing the jurisdiction is probably a routine part of every trial, but for me, a virgin juror, the questions seemed almost random.

What I wanted to say to the D.A. was tell me what the questions are all about so I can put them into context. Where are you headed? What are the following questions supposed to answer.

Thanks for your columns. Your thoughts on the legal system will help me understand where my son is headed. He will be clerking for a Federal District Judge in Sacramento starting in September. Know any Circuit Court judges who need a clerk in Sept. 2015? Sorry just being a pushy father.

. . .

If you’re busy, stop reading here. The following was my rant to my son about my prior visit to the court house.

Not Getting Selected

21 prospective jurors sat scattered behind 8 long tables facing a lectern flanked by the U.S. and the Arizona state flag. Nothing was being shared among the strangers. Simple uncomfortable quiet conquered any innate friendliness.

The jury wrangler, Lisa, opened with a joke about her inability to make coffee, “So if your drink it and it’s terrible, I warned you.” Only, a few laughs followed. Her general overview of the forms to fill out, location of the bath rooms, and admonishments to not wander the halls filled the room but created little interest. Heads looked around and counts were quickly assessed when Lisa said only 7 jurors would be impaneled that day. The few prospects that survived high school math got the exact probability of being selected but everyone had hope of not being impaneled. As if on cue, the presiding judge entered as Lisa completed her performance.

The judge with a spare tire belly, grey curly hair with a pronounced bald spot began with a usual, “Good morning.” With no response, he added, “You can do better than that.” and amped up the next, “Good morning!” following with, “Let me tell you why this is really a great morning.” Having said he had been a judge for 30 years and a presiding judge for 10, his speech was well presented but unorganized. The speech covered: why our country is great; was great because each defendant can be granted a jury trial; how everything thing the courtroom was aimed at us, “the judges”; and how we, “the judges”, were the most important part of any courtroom proceedings.

His term of “judge” instead of juror was jarring initially, but became accepted like how your friend always mispronounces certain words.

He then reiterated how important we were and how the entire system created here was to make the absolute best use of our time. Delays would be at a minimum and we would be moving into the courtroom in less than 30 minutes.

He rambled on about these facilities compared to other city courthouses. How courtrooms cost over $200 per square foot to construct. That this jury room was fairly nice. He talked about even the smallest courts in the smallest towns held justice and jurors to the same high standards as every other city in the land.

When the judge didn’t get the hook and no one came to his rescue, he wrapped it up with the usual how important everyone here was and for what seemed like the 100th time, thanks for our service. He departed.

Lisa returned and assigned us numbers. I got number 13. We lined up by numbers and filed chain gang style into the small courtroom. The 21 of us filled the guest area in the back of the court room. The only person not standing for our arrival was the judge. The only person not well dressed was the defendant. He wore a dark T shirt and blue jeans. Everyone else stood in suits and ties.

Each future juror was to answer the following: name; type of current job; marital status; number of children; and if ever served on a jury: which court; what type, civil or criminal; how long ago; what was the verdict.

The judge’s role in all of these proceedings was to repeat the pat phrase: “Would that whatever effect your ability to render a fair and impartial verdict in the case before you?” By the time the judge got to me, I had to force myself to listen to each question. One answer was supposed to be “yes” and the other was to be “no”. I had forgotten to memorize the correct order so I had to actually listen. I was able to answer correctly and got the judge’s approval with a “Thank you.”

Back to the jury waiting room while some people got special one on one time with the judge back in the courtroom. I wasn’t special and simply waited.

After 20 minutes while others came and went, we were again chain ganged back to the court room. Seven juror numbers were called but my mine wasn’t one of them. After arriving at 7:15, I left at 11.

Having protected the American Judiciary, I had an early lunch and Pete’s Fish and Chips.

My take away.  We trial lawyers and trial judges can do better.  Jurors need practical and actionable information.  For both the trial lawyer and the trial judge this takes thought and extra effort, but it is doable without a great deal of difficulty. Platitudes don’t impress jurors.  Questions that poke around obscure points of law without explanation are not only confusing but annoying. Jurors take their duties very seriously, and they expect us to spend the time that is necessary to give them the information as well as the background that any rational person would want before they are selected and thereafter. Finally, being nice is nice, but that is not enough. Jurors want concrete direction and information, and they want the jury orientation, voir dire and trial questioning to provide that concrete direction and information in a timely and efficient manner. Jurors sense rote bullshit and they are turned off by it. All of us “old hands” can and must do better.

RGK

I believe the author is referring to earlier blog posts about how I conduct jury orientation and then voir dire. For example, see here and here.

UPDATE:  The new Chicago law grad and future law clerk “outed”himself on Twitter.  So, I shall too, with my hearty congratulations to Channing for his past and future success and kudos to his father Robert for being a “cool dad.” See Channing Turner ‏@ChanningTurner @JudgeKopf of “Hercules and the umpire” posted a letter about jury selection written by my dad!!! #SoProud #CoolDads http://bit.ly/1qBumIl

What I would give for a wig!

Photo Credit: Nate Oman and Concurring Opinions. See The Tragic End of Wigs (July 13, 2007)

Photo Credit: Nate Oman and Concurring Opinions. See The Tragic End of Wigs (July 13, 2007)

Pick a jury in a criminal case on Monday.  Never done that bald. Sure wish I could wear a wig.

Wait. Now that I think about it, the blinding radiance of my bald pate in the stark lights will illuminate my literal and figurative ascension to the bench. Neato!

RGK

When using peremptory challenges in a civil case, is it OK to strike a juror because he or she is butt ugly?

Say you are involved in an antitrust suit representing a defendant drug manufacturer. The plaintiff is another drug manufacturer. The antitrust dispute is about a drug used to fight AIDS. After voir dire, and during jury selection, the lawyer for the defendant moves to strike juror 10 using a peremptory challenge. Plaintiff’s counsel objects and claims that juror 10 is likely a homosexual based upon how that prospective juror answered certain questions regarding marital status during voir dire. Plaintiff’s counsel claims that a Batson challenge is appropriate even though the motivation to strike a juror simply because of the juror’s sexual orientation has never been ruled out-of-bounds by the Supreme Court.  No neutral explanation is given by defense counsel.

To make the hypothetical better, assume that defense counsel asserts that “my client simply doesn’t want gay people on the jury” and “my client’s desire is not founded upon anything having to do with how the drug is used” and “I don’t have to give any rational explanation in support of my client’s position.”  The judge agrees with defense counsel, refuses to reverse the strike, and the matter is appealed (to the Ninth Circuit) after an adverse jury verdict.  Who wins?  Why?

Again, let’s change the facts but only slightly. The drug is a face cream with a powerful antioxidant that conditions the skin. The juror is terribly ugly. No other facts change. How do you rule, and why?

RGK

PS  For a description of the real case, see ADAM LIPTAK, Court to Decide if Lawyers Can Block Gays From Juries, New York Times (July 29, 2013).  Thanks to How Appealing (July 29, 2013).

Photo Credit:  L. Marie's photostream per Creative Commons license.

Photo Credit: L. Marie’s photostream per Creative Commons license.

How long should it take to pick a jury in a murder case?

I have previously written about the English method (frequently seen in the federal courts) and the American method (frequently seen in the state courts) for jury selection.  With that in mind, I see that a jury of six women has been picked in the State of Florida’s prosecution of George Zimmerman for the shooting death of Trayvon Martin.  They started with a pool of 40 people.  Jury selection took two weeks.

The time it took to select a jury in the Florida case illustrates the differences in how judges from different venues view jury selection.  While I have absolutely no criticism of the Florida judge, and while I realize that the national publicity regarding the Florida incident makes that case unique, I thought it might be useful to look at how long it took to select a jury in a roughly comparable case here in Federal court.

Let’s take, for example, United States v. Hoover,   After a nine-day trial, Jeffrey Hoover was convicted, and sentenced to life in prison, on two counts of using a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1), resulting in the first degree murders of Harold Fowler and Duane Johnson.  Hoover was white and the victims were men of color (Black or Native American).  Hoover, using two teenage kids to help him, executed Fowler and Johnson, with a rifle at close range, after they stiffed him on a $850 marijuana deal.  He shot one of them in the genitals.

The prosecutors and defense counsel involved in the Hoover case were the best in the business.  One of the defense lawyers was appointed precisely because of his great skill and vast experience dealing with murder cases.  He talked Main Justice out of seeking the death penalty.  The nearly two-week trial saw 30 government witnesses and five defense witnesses.

In the Zimmerman case, it took two weeks to select a six person jury from a pool of 40.  In the Hoover case it took two hours to select a 12 person jury plus an alternate out of a pool of 40.  Perhaps you can see now why I prefer the English method of jury selection–short and sweet even in big cases.

RGK

Limiting the participation of counsel during jury selection (or how to make a lawyer’s head explode)

Photo credit:  Robotclaw666's photostream per Creative Commons license.

Photo credit: Robotclaw666’s photostream per Creative Commons license.

Lawyers hate it, but in the federal courts the participation of lawyers in jury selection (voir dire) is typically quite limited.   For among other reasons, this is because the Supreme Court has vested very broad discretion in the federal trial judge to pick a jury in the manner the judge thinks best:

No hard-and-fast formula dictates the necessary depth or breadth of voir dire. See United States v. Wood, 299 U.S. 123, 145–146, (1936) (“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”). Jury selection, we have repeatedly emphasized, is “particularly within the province of the trial judge.” Ristaino v. Ross, 424 U.S. 589, 594–595  (1976) (internal quotation marks omitted)

Skilling v. United States, 130 S.Ct. 2896, 2917  (2010) (in a very high-profile case, jury selection that took 5 hours, where lawyers were not allowed to ask initial questions and instead the judge did the initial questioning, complied with the Constitution; observing that other measures were used by the judge to assure impartiality such as giving more than the required number of peremptory challenges, allowing follow-up questions by the lawyers and using written jury questionnaires) (certain citations omitted).

Federal Rule of Civil Procedure 47(a) likewise gives the federal trial judge a lot of leeway to keep the lawyers quiet:

(a) Examining Jurors. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.

Similar provisions govern criminal cases.  See Federal Rule of Criminal Procedure 24(a).

My Philosophy:  There are two views about jury selection.  One is the English rule.  The other is the American rule.

Predominant in the federal courts, the English rule assumes that lawyers should be seen and not heard during jury selection because the one and only reason for questioning jurors is to obtain a reasonable, but not perfect, assurance that the prospective panel is impartial.  Basically, there is only one question for a prospective jury panel member, and that is: “Do you know anyone involved in the trial?”  The English rule is judge driven based upon the belief that the parties really don’t want impartiality, they want to win.

The American rule is premised on the idea that jury selection is intended to insure impartiality on a deeper (cosmic) level.   The American rule is based upon the notion that impartiality is best achieved when the lawyers engage in a competitive enterprise to bias the prospective panel toward the positions of their respective clients.  Predominant in the state courts, the American rule is lawyer driven.

Can you guess what rule I favor?  Right.  I favor the English rule.  Actually, and as you will see if you read further, I favor a modified English rule.

United States District Judge Robin Cauthron from Oklahoma, a very experienced trial judge, who served on the state bench and as a United States Magistrate Judge prior to her appointment, summed up my thoughts pretty much exactly:

The last thing any lawyer wants is a fair jury. That’s not what you want. You want a jury that’s going to find for your client, and every lawyer-conducted voir dire is designed to influence the jury. It’s not designed to find fair and impartial jurors. If you’ve ever seen a trial proceeding in England, the only question that’s asked is, “Are you related to the parties?”

The point is that you have an impartial jury, not one that’s inclined to find in your favor but one that’s impartial. Now, knowing that, I know it’s very difficult for lawyers to establish a rapport with a jury and that you feel that disability going in. I have been on the state bench as well as the federal bench, and it was very common in state trials, criminal trials, for the jury selection process to take a week and for the trial to take one day. Now, if you think there is not a lot of unnecessary stuff going on in jury selection that takes that long, you’d be wrong. It is that experience, I think, that causes the federal court to be so restrictive in its voir dire practices.

PANEL TWO, Robin Cauthron, Dee Benson, Bruce Hall and David Cunningham, Tenth Circuit Judicial Conference, Santa Fe, New Mexico (2000), available as a law review article entitled WHAT TRIAL JUDGES WOULD LIKE TO SAY TO TRIAL JUDGES, 31 N.M. L. Rev. 241 (2001).

My Process:

What I will next do is to describe the process of jury selection I follow for both civil and criminal cases, a process that I have used for more than 25 years.  I will break the process into component pieces.  After I describe each component of the process, I will explain why that component is utilized.

  1.  Prior to trial, counsel are provided with a lot of written information relevant to jury selection. Counsel are provided with a jury questionnaire completed by individual prospective jurors that was developed by lawyers serving on our Federal Practice Committee.  The lawyers must destroy the questionnaires after the trial.  The one-page document provides the lawyers with details lawyers think are important.  The form of the questionnaire is available on our website. From my perspective, the questionnaire is a sop to the lawyers and, more important to me, makes it very difficult for a lawyer on appeal to argue that my limitation on lawyer voir dire was reversible error.  Additionally, for both civil and criminal jury trials, I have prepared hand-outs that are available to the lawyers on our website.   The hand-outs describe in greater detail much of what is written in the following portions of this post.  The hand-outs include (a) the “short list of my eccentricities,”  (b) the background questions I ask jurors to refer to when introducing themselves, (c) the questions I typically ask during voir dire and (d) my stock preliminary jury instructions.
  2. After I have completed my jury orientation (described in an earlier post), the prospective jurors are brought back into the courtroom. Out of the entire group, a smaller group of potential jurors are selected at random using a computer program. For criminal cases, I typically seat 31 potential jurors out of the entire group in order to get 12 trial jurors plus an alternate.  I typically seat 14 potential jurors for a civil case in order to get 8 trial jurors.  After these prospective jurors are seated, the lawyers are given a huge seating chart (about 3 feet square) and the name of each seated juror, together with brief biographical  information, is shown in the boxes.  The boxes correspond with the seat where a particular juror is located.  This chart provides the lawyer with an easy reference while questioning the jury.
  3. The prospective jurors are sworn.  The jurors are assured that the questioning is not intended to pry or embarrass.
  4. By that time, the courtroom deputy has provided each prospective juror with a one-page document entitled “Background Questions.”   Basically, the questions ask for name, city of residence, marital status, and employment status of the juror.  Then, each prospective juror is handed a microphone and in turn speaks aloud and introduces himself or herself to the lawyers by reciting the information asked for on the sheet.  This is done to help each panel member relax and become accustomed to speaking in open court.  The juror remains seated.
  5. The lawyers are asked to introduce themselves and any colleagues or case agents or parties seated at counsel table.  The lawyers are then asked to recite aloud the names of witnesses who may be called to testify.  The  prospective panel members are asked to keep in mind any name that sounds familiar.
  6. I then begin to question the panel.  My questions are directed to the panel as a whole.  For both criminal and civil cases, I have a list of questions I typically ask.  Counsel are provided with a copy of that sheet prior to trial.  If a juror responds to one of my questions, the juror does so by using a microphone.   Jurors are told that if a sensitive matter arises, and they would prefer not to speak about the matter in front of everyone else, they may come to the bench.  If that happens, white noise is pumped into the courtroom and the lawyers and I speak with the juror at the bench.  The bench conference is recorded as is the entire process of jury selection.
  7. After I am done questioning, I allow counsel to inquire about anything they wish.  Each side has 20 minutes, and the time limit is strictly enforced.  Counsel must use the podium, and must not stray from the podium.  Counsel may challenge any panel member for cause.  If so, that challenge is done at the bench outside the hearing of the prospective jurors, white noise is pumped into the courtroom, and the conference is recorded.
  8. After each side has questioned the panel, and after each side has “passed the panel for cause,” the lawyers then exercise their peremptory challenges.  The courtroom deputy (CRD) takes a reduced version of the seating chart, and stands between counsel and their tables.  Starting with the plaintiff, she hands the seating chart to the first lawyer who exercises a challenge by striking the name from the seating chart and placing the lawyer’s initials next to the strike.  The second lawyer follows suit.  The process continues back and forth until a jury has been selected.  During this time, the prospective jurors remain in the courtroom so the lawyers can put a name with a face.  While the lawyers and CRD are working, I generally give the panel members a little talk about the history of the court.
  9. My goal is to complete the jury orientation and pick the jury before noon.  I accomplish that task almost 100 percent of the time and no matter the complexity of the case.

In summary, there are as many ways to pick a jury as there are judges.  I don’t pretend that my way is the best.  I am convinced, however, that the method I employ is efficient and results in a jury that is more or less impartial.   In the real world, that is all that should be expected.  Besides, I like watching exploding heads!

RGK

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