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Anita Ramasastry

Googling Potential Jurors: The Legal and Ethical Issues Arising from the Use of the Internet in Voir Dire


Friday, May 30, 2010

When trial attorneys pick juries, they try to identify potential jurors who will -- and will not -- be sympathetic to their clients. This involves questioning possible jurors, in a process called "voir dire." In the past, lawyers would simply interview potential jurors and ask them to fill out questionnaires. These inquiries might, depending on the case, ask about potential jurors' attitudes about issues as diverse as divorce, gay marriage, terrorism, drugs, capital punishment, or law enforcement, as well as a myriad of other possible case-related topics. They might also inquire into what magazines or books jurors read regularly.

But over the past few years, trial lawyers have started adding another powerful tool to their repertoire: the Internet. Specifically, attorneys are now using the Internet to check up on possible jurors, and to learn about their attitudes, opinions and backgrounds. If permitted to use laptops in the courtrooms, lawyers can check up on possible jurors during voir dire itself. (And even if that is not possible, lawyers may take advantage of breaks, or the end of the court day, to go online.)

Based on what attorneys learn about potential jurors online, they may convince judges to eliminate jurors "for cause." Alternatively, if the information an attorney learns is negative for her client, but cannot support a challenge "for cause," then she may decide to use one of her precious peremptory challenges (challenges that need not be explained, and that are limited in number) to strike the juror at issue.

In addition to simply unearthing more information about a potential juror, the Internet may also allow attorneys to ferret out jurors who omit information, or lie outright, during voir dire or on their jury questionnaires.

In this column, I'll consider the legal and ethical issues that Googling --or Facebooking, or otherwise using the Internet with respect to -- potential jurors raises. In so doing, I'll build on some of the information provided by the American Bar Association Journal's excellent recent article on this practice.

Two Examples of How the Internet Has Assisted Voir Dire

Consider this example: In last year's federal terrorism case against then-suspected (and since convicted) "dirty bomber" Jose Padilla, a team of defense lawyers was using laptops to conduct Internet searches on the names of prospective jurors in a Miami federal courtroom. They discovered that one juror had lied on her jury questionnaire.

The woman, a Miami-area government employee who was not publicly identified, said that she had no personal experience with the criminal justice system. But in fact, she was currently under investigation for malfeasance (sometimes referred to as official misconduct), according to online information discovered by a jury consultant for one of Padilla's co-defendants. After the judge was informed of this discrepancy, she dismissed the juror.

This incident was not very unusual. As more and more information on people becomes available on the Internet -- not only in the ways noted above, but also through blogs, online comments, Twitter, and the like -- the Internet has, in the last few years, become an important tool for jury consultants and trial lawyers.

To take another example, from the ABA Journal article, a Los Angeles trial attorney notes that, in a case involving a construction accident, he learned that a particular potential juror was a fellow attorney whose practice included worker's-compensation cases. At first, the trial attorney was enthused about the juror -- believing that he would be sympathetic and would understand California law. But an Internet search revealed that the potential juror had recently run for state office on a tort-reform platform. That piece of information put the potential juror in a whole new light.

Overall, jury consultants say that Internet resources are a treasure trove of information that can be used in picking the optimal jurors, striking potential jurors, and even influencing jurors throughout the trial, including in opening statements and closing arguments.

How the Internet Has Transformed Voir Dire

As a starting point, many lawyers and jury-selection experts recommend that attorneys ask each jury panelist (that is, each potential juror) about blogging, use of social-networking sites, use of microblogging services, exposure to news-media content on the Internet, and the like.

Since many people use pseudonyms online, attorneys may also want to ask for potential jurors' pseudonyms -- though some potential jurors may not reveal them (and judges may not require jurors to reveal them, in light of privacy concerns).

Jurors may also be asked if they have posted videos on YouTube, or if (and where) they may comment on news articles, or have submitted letters to the editor (online or offline). Relatedly, jurors may be asked about online -- as well as offline -- news-media usage and habits.

In addition, public records posted on the Internet may be of use to attorneys during voir dire. These include property-tax records and civil litigation and criminal records. In some municipalities, these records may include minutes of local government hearings Moreover, records of political donations to candidates (both national and local) are available online. Even public records, then, can reveal a jury panelist's political leanings, affiliations with causes, and interactions with governmental agencies and law-enforcement personnel.

And the list of Internet resources that are potentially valuable in voir dire goes on: Newsletters from churches, clubs, or charitable organizations often contain stories about members or donors. Someone may be mentioned in an alumni publication of his or her college or high school that is also (or exclusively) available online. Online petitions circulating through e-mail can be found on various Websites. Potential jurors' friends and family may blog about them, or post about them on their Facebook "Walls."

Ethical Issues Involved In Googling Potential Jurors

For lawyers, then, the Internet is a terrific enhancement to voir dire. But what about the jurors' perspective -- and their privacy? Just because jurors show up to do their civic duty does not mean that they expect -- or agree -- to have their backgrounds searched extensively online.

Indeed, it's even possible that the prospect of such searches might scare people off from jury service, or make them hostile to attorneys who search on their names. (No wonder, then, that some jury consultants advise attorneys not to disclose that a juror has been the subject of a Web search.)

Some judges are thinking seriously about the privacy side of the equation too. For instance, in 2006, U.S. District Judge David Coar banned Internet search-engine inquiries regarding prospective jurors in the corruption trial of former Chicago mayoral aide Robert Sorich and his codefendant Tim McCarthy due to privacy concerns.

Lawyers investigating potential or current jurors on the Internet must be sure not to contact the potential juror at issue-- for such contact would constitute a breach of an attorney's ethical obligations. For instance, a lawyer cannot ethically seek to access a juror's private MySpace or Facebook account -- for instance, through a Facebook "friend" request. Any posting of comments between the juror and the attorney would be even worse -- an appalling breach of a clear rule against out-of-court contact between attorneys and potential or actual jurors.

In Addition to Privacy and Legality Concerns, There May Also Be Concerns About Accuracy with Respect to Online Information

Moreover, a serious concern about Internet research is that the information posted on the web may or may not be true. If a lawyer locates a third-party posting -- for example, one that was made by a friend or, worse, an enemy of the potential juror -- then the opinions expressed in the posting may not be an accurate reflection of the potential juror's character or actions.

In addition, especially when a potential or actual juror has a common name, cases of mistaken identity may be common -- and the search may actually do more harm than good, even from the perspective of the attorney conducting it.

A final risk, too, is that prospective jurors who are aware that they will be Googled (or the like) may post contrary or controversial opinions on blogs or other sites online when they are called for jury duty -- for the sole purpose of getting out of jury service.

With all these risks on the table, it remains a fair question whether the use of the Internet by attorneys, with respect to potential juries, will ultimately be a good thing, or a bad thing, for the administration of justice.

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column are solely those of Ramasastry in her personal capacity and do not necessarily represent the views of any of her employers, past or present.

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