When picking a jury, lawyers always try to choose people they believe will find in favor of their client. Of late, some attorneys are taking juror research to a new level. Many lawyers and their jury consultants are heavily using social media sites and other Internet sites to discover the intimate details of potential jurors' lives. In light of the information people are posting about themselves on sites like Facebook, attorneys and jury consultants are able to discover political leanings, income level, sexual orientation, family members and many other personal facts.
The question-and-answer portion of jury selection currently known as “voir dire” is becoming “voir Google.” Do the courts realize this is going on? Is there anything wrong with this tactic? Does it violate any court rules or The Code of Professional Responsibility? Does this practice violate potential jurors' privacy rights?
The term voir dire means “to speak the truth.” The voir dire process is meant to help ensure a fair trial, but the process has its limits. Jury questionnaires are typically distributed to attorneys in many jurisdictions at the beginning of voir dire. Generally these questionnaires contain questions about basic information like one's name, age and marital status. Additionally, in order to protect a juror's privacy rights, many courts prevent lawyers from asking more personal questions relating to political affiliations or sexual preference. This has lead to the increased use of online research. Why not take advantage of the information one voluntarily posts on their Facebook page or their LinkedIn profile?
In Columbia Missouri, criminal defense attorney Jennifer Bukowsky compiles information about prospective jurors using Facebook, MySpace and Google. During a 2010 trial in which her client was a black male charged with sexual assault, Bukowsky hoped to keep a white female juror on the panel because the woman's Facebook page included several photos of her with a black man - which Bukowsky believed was a sign the woman was not racist. “Internet research affected our decision with respect to whether to keep or strike a juror,” Bukowsky said. The prosecution struck the woman from the jury pool and the trial ended with a hung jury.
Trial consultant Jill Huntley Taylor said that during a product-liability case in 2010 in which her client was representing the defendant, she discovered that a potential juror had posted on Facebook that one of her heroes was Erin Brockovich, the crusading paralegal known for her work for plaintiffs. This information was used to dismiss this potential juror.
In May 2009, in a medical malpractice case in New Jersey an attorney was using his notebook computer in the courtroom to research potential jurors online. A transcript reviewed by Reuters Legal shows Superior Court Judge David Rand was surprised and annoyed by the attorney's online research.
“Are you Googling these (prospective jurors)?” said Rand. “Your Honor, there's no code law that says I'm not allowed to do that,” responded the attorney.
“Is that what you are doing?” said Rand.
“I'm getting information on jurors. We've done it all the time, everyone does it,” said the attorney.
“No, no, here is the rule. The rule is it's my courtroom and I control it,” responded Rand.
Judge Rand then barred the attorney from Googling prospective jurors, citing the fact that defense attorneys in the case had not brought their own computers to court. The judge ruled this type of research provided “an inherent advantage regarding the jury selection process.”
An appellate court held that the trial judge had improperly prohibited the attorney from using online research. “The ‘playing field' was, in fact, already ‘level,'” the court ruled, “because internet access was open to both counsel - even if only one of them chose to utilize it.”
There is no question that for years, lawyers and jury consultants have tried to put together psychological profiles of prospective jurors in order to gain an advantage during voir dire. Attorneys have also used private investigators and researched public records to research potential jurors. Why not use information found on Facebook about a juror who is not being forthcoming during voir? One problem may be that attorneys just don't know the rules yet. This research method is still relatively new and there is no real precedent to rely on. Only time will tell.
