As many trial attorneys will tell you, the most crucial phase in many trials is jury selection. While its significance is known, attorneys are often left with minimal information gathered through juror questionnaires or voir dire from which they are forced to analyze cause challenges and make strike decisions. However, the growth of social media over the past decade has enabled lawyers to gather additional information about the interests, activities and proclivities of veniremen that allows counsel to make more informed decisions during the jury selection process.
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According to Pew Research Center, 74% of online adults use social media sites. The numbers are consistent across gender, education and income levels. A trial attorney, therefore, has the ability to discover information about three out of every four prospective jurors on the Internet.
By reviewing a potential juror’s social media sites, counsel has access to a wealth of information. For example, a Facebook “profile” may contain a prospective juror’s:
- lists of personal connections (i.e., “friends”);
- pictures and videos;
- check-ins at real world locations;
- scheduled events;
- posts dating back to the creation of the user’s profile (including commentary on news stories and discussions with other “friends” about hot bottom social and political issues);
- relationship status;
- work experience;
- educational background;
- current city and home town;
- contact information;
- membership in certain groups;
- favorite books, movies, TV shows, and news sources;
- political preferences; and
- real time updates regarding the prospective juror’s thoughts on jury duty, conversations with other prospective jurors in the room, or maybe even the substance of the case (despite the court’s usual instruction to refrain from such behavior).
Facebook is only one such site. There are too many others to list, but sites that often have useful information include LinkedIn, Twitter, Google+ and Tumblr. In addition to social media sites, other useful information can be found on non-social media sites, such as Spokeo, Intelius, Zillow, Scribd, online bulletin boards such as Reddit, and state and federal court online filing databases such as Public Access to Court Electronic Records (PACER).
The number of veniremen on an array (or panel of prospective jurors) will vary by jurisdiction, as will the timing of when the court will provide the names of potential jurors to counsel. However, in many jurisdictions the names are only made available on the morning of jury selection. We have found it very useful for the trial team to have several social media savvy attorneys standing by, ready to begin furiously searching the webs for information on the potential jurors as soon as the juror list becomes available.
In a recent toxic tort trial handled by Husch Blackwell LLP, we received the list of names of persons called for jury service on the morning of the first day of trial. Having previously confirmed that our practice complied with all ethical guidelines of the jurisdiction, the names were then entered into a shared spreadsheet that was accessible to a team of attorneys and paralegals in a conference room. Each attorney reviewed all accessible social media sites of the prospective jurors (and other sites as well) and entered the data in the shared spreadsheet, which was shared in real-time with the trial team in the courtroom during voir dire.
In this case, we were able to find a woman on the panel who posted links to multiple scientific articles on her Facebook page, making her a very favorable juror for a toxic tort trial in which medical causation was the primary defense. Similarly, we found a man with anti-corporate posts on his wall, indicating he would likely be an unfavorable juror for our client in this case. In both examples, we were able to gather information and background that would otherwise have been unavailable through ordinary jury questionnaires or voir dire.
In another recent trial, this process permitted us to determine that a venireman in a personal injury case provided mistaken (or knowingly false) information in a jury questionnaire on the issue of whether the potential juror had previously been a party to a lawsuit. Our team at the office found that this potential juror made statements about an earlier personal injury lawsuit on his Facebook page, and this information was confirmed by information found in a court’s database of cases. The information was communicated to the Husch Blackwell attorney conducting voir dire. When asked specifically about the prior lawsuit, the potential juror again denied having been a plaintiff. That information and other answers he provided showed this juror was likely a stealth juror. This was brought to the court’s attention and a “for cause” strike was sought and denied. The potential juror was then stricken with a preemptory strike.
While the utility of social media research during jury selection is clear, lawyers accessing social media information during voir dire must be aware of and adhere to relevant ethical considerations. The American Bar Associate issued Formal Opinion 466 on April 24, 2014 and discussed the ethical implications of social media research on jurors. The opinion is based on the ABA’s Model Rules of Professional Conduct, which have been adopted by all states but California. The opinion states that the “mere act of observing” a potential juror’s social media sites is not improper ex parte contact with a juror, similar to how driving down a juror’s street to get a sense of his or her environment is not improper. Asking a juror for access to his or her social media, such as asking to “friend” them on Facebook, is improper and likened to stopping the car and asking to look inside the juror’s home.
Some social media websites, such as LinkedIn, may generate a notification to the prospective juror that the attorney has viewed his or her profile. It is unclear whether such a notification constitutes ex parte communication with a prospective juror across all jurisdictions. The ABA opinion states that the social media provider, and not the lawyer, is communicating with the juror, which is not ex parte communication. However, some states have issued ethical opinions noting that notifications are prohibited as an ex parte communication because they are “at least an indirect communication.” Given this ambiguity, counsel should research the relevant state’s ethical guidelines to determine whether social media notifications constitute ex parte communication with prospective jurors.
The ABA has also encouraged judges to make jurors aware prior to jury selection that their social media pages may be of interest to the attorneys and may be researched. Courts have acknowledged the prevalence and concerns of social media research on jurors and have dealt with it prior to trial. Judges have also allowed the parties to define the scope of social media jury research prior to jury selection. In the high profile copyright infringement case between Google and Oracle, a federal judge in the Northern District of California gave the parties the choice between agreeing to a ban on conducting Internet and social media research on jurors until trial concluded or agreeing to disclose details as to the scope of their intended online research. While Google agreed to forego Internet research, Oracle initially refused to do so. The federal judge then issued an order stating:
Trial judges have such respect for juries—reverential respect would not be too strong to say—that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs and other personal information.
Oracle subsequently also agreed to forego researching prospective jurors on social media.
Given the inconsistent treatment of jury research, the boundaries and rules of the practice remain ambiguous across the different jurisdictions. And while it is undoubtedly a useful tool, trial attorneys need to determine what the jurisdiction and particular judge’s view of Internet research of jurors is well in advance of engaging in jury selection.