The Internet’s instantaneous availability of information poses a direct threat to the integrity of the judicial process, and presents a king-sized bear trap to lawyers in voir dire. This article addresses the resources available for juror investigation, the pitfalls of employing social media in trial, and new legislation designed to dissuade jurors from Googling during trial.
Instantaneous Investigation of Jurors on the Internet
Numerous websites provide lawyers with investigative tools to find out where jurors live, their likely income and employment, political leanings, even hobbies and buying practices.
Free Research Tools
The site PIPL.com provides a compilation of both free and pay-for-service information concerning just about anyone. It includes residential address and telephone information, Facebook and LinkedIn pages, possible photographs, even Amazon purchase preferences. It is a very powerful tool, and a gateway to other reference services.
LinkedIn provides a broad database of employment and employment history, as well as potential connections and relations. Typically, a LinkedIn profile provides only a small glimpse, with additional information only being available if the person agrees to be “linked” to you.
Once you have a street address, Zillow.com can provide you with insight as to the prevailing real estate prices in the neighborhood. This can establish a fairly good indicator of the likely income range of the person who lives in a particular neighborhood.
If anyone has made a contribution to a political campaign, information concerning the donor’s occupation and likely political leanings are available on numerous websites, such as OpenSecrets.org and MapLight.org. You can also find out the party affiliation and voter eligibility status through the County Elections Division if you have a birth date and an address of a person.
For likely estimates of salaries for a particular profession, Glassdoor.com provides salaries posted anonymously by employees.
Paid Research Tools
There are numerous paid research tools available on the Internet. Two prominent services are Accurint.com and Merlindata.com. Both services provide a fairly reliable means of identifying addresses and telephone numbers. In addition, professional and other types of licenses are available. In general, these pay sites provide more targeted information that can provide a good starting point for other research. There are also sites such as KnowX.com and ZabaSearch.com which can quickly find public records at little or no cost. A combination of all of these sites can typically garner a lot of information about a person easily, whether accurate, helpful, or not.
The Impact of Social Media on Trials
Most people under the age of 40 have embraced social media as a means to broadcast information to friends and total strangers about the minute and intimate details of their lives. Social media tends to be very fickle and dynamic in terms of its usefulness. For example, MySpace.com used to be very popular and is now all but useless. Facebook is becoming less of a useful tool because of the privacy restrictions that most users employ to limit access, but there is always the occasional Facebook user who keeps quite a bit of information public. Twitter is very trendy, but appears to appeal to a fairly narrow segment of the population. By the way, to learn someone’s twitter account, websites like Listorious.com and WeFollow.com provide immediate links to those who have registered.
As a jury consultant, the availability of information about prospective jurors from social networking sites initially seemed like it would greatly simplify the task of rooting out the potential prejudices of prospective jurors. However, applying these tools to the voir dire process has proved to be a challenge.
A significant limitation on the information that is publicly available is one of reliability. It is not uncommon for people to have an Internet persona that does not reflect real life. Anyone who has spent time on Match.com or similar Internet dating sites can attest to how different people are from how they present themselves. Another thorny issue is whether to actually use information gleaned from the Internet in the questioning of jurors.
As with any new technology or opportunity, there is a limit that is not yet clearly defined, in terms of how far we can go to delve into the lives of prospective jurors. Some judges find it distasteful to do internet research on panelists. This predilection will likely be discussed as part of judges’ initial script…but so far, it is not in the norm. If jurors make it known that they only want their posts viewed by registered users, then that should be considered private and off-limits. Don’t communicate in any way with prospective jurors, either anonymously or using your screen name. Remain keenly aware that the public persona jurors put forth may be quite different than their actual personalities. The details about music preferences, political leanings, spare-time activities can be interesting but are not a substitute for views, attitudes, beliefs, biases and prejudices. It can be very seductive to attempt to create a profile of a person based on this external data, but before eloping with speculation, use this information as interesting background material and cement the assumptions with follow-up questions in court. Prospective jurors can become uncomfortable if they feel they have been researched outside of the confines of a questionnaire, so carefully couch questions so they are not alerted to the fact that you read through all of their Facebook and Twitter posts.
Social media can also have an impact upon a trial as it progresses, particularly one that has had pre-trial publicity. In high profile trials, a daily analysis of social media sites and blogs can provide a strong dose of public opinion, but its value can be difficult to assess. Depending on the public’s sources of information, social media sites can provide similar feedback to what a shadow jury can provide. Regardless of the veracity of people’s reactions, it is important to take the pulse of people who are at least paying attention to the trial. This type of information can help identify holes in a particular case, or assess the need to change course.
The internet can be invaluable in learning about not only jurors, but witnesses alike. M.E. Greenberg, President of Greenberg & Associates Investigative Services in Sacramento said, “Basically, I always use Facebook.com and Ancestry.com on all my cases. If the client is under 40, I can glean reams of contacts and witness history, from looking at both the client’s account as well as their cohorts. I use Ancestry.com to trace relatives. Many of my clients in death penalty trials do not know their relatives and use this new information to look for their Facebook accounts.”
Some people prefer to have a very limited or non-existent online presence. One expert witness, Psychologist Dr. Gretchen White, said, “The last thing I want is to be cross-examined on the witness stand about my personal or professional life from LinkedIn.com or Facebook.” This is understandable and important to think about as an expert or a lawyer deciding whether to have someone testify at trial. Lawyers, as well, should consider their online profile as being readily accessible by jurors and opposing counsel in the course of a trial.
New Legislation Curtailing Jurors’ Use of Internet During Trial
On August 5th, 2011, Governor Brown signed California Assembly Bill 141 into law. AB 141 solidifies rules prohibiting the use of social media, search engines and electronic devices by prospective jurors to discuss or conduct internet research on cases or parties. The new bill, which will become effective January, 2012, forbids jurors from using electronic or wireless devices to contact court officials. Current laws require the Court to admonish jurors about discussing the case. The new bill:
[W]ould require the court, when admonishing the jury against conversation, research, or dissemination of information pursuant to these provisions, to clearly explain, as part of the admonishment, that the prohibition applies to all forms of electronic and wireless communication. The bill would require the officer in charge of a jury to prevent any form of electronic or wireless communication.
Jurors who disobey the new bill will be placed in contempt of court.
The new Assembly Bill is a good start, but it will be most interesting to see if jury verdicts are overturned by internet communications that peripherally or directly relate to seated jurors during the time of jury service.
Judicial Solutions to Juror Googling
Many judges have taken up their own approaches to the problem of juror “Googling.” Many judges take the initiative of admonishing jurors that while seated as a juror, ANY type of outside research is juror misconduct and will not replace or augment evidence presented in the courtroom. Inquiry during voir dire of a juror’s use of the Internet may soon become a required part of any questioning.
Some judges are having jurors provide a written commitment not to use the Internet during trial. I recently selected a jury in Alameda County and we had a 2-page questionnaire. On the top of the first page, underneath the lines for name and city of residence, I stuck in a question similar to the verbal admonishment typically given by the judge stating that jurors would not be able to use Google, Twitter, Facebook, MySpace or any other social media. Then, they were asked whether they would be able to abide by that admonishment with boxes provided to check “Yes” or “No”. A total of 6 jurors out of 60 checked the box that they would not be able to abide by that – four of which were later excused for cause based solely on that issue and how they responded to the Court. Our trial team was lucky in that case. Three out of the four jurors excused were unlikely to be favorable for our case, saving us from losing any of our precious peremptory challenges on them.
This kind of written admonishment can take several forms. Even if a questionnaire is not used, jurors can be asked to refrain from any type of extracurricular research and then sign a piece of paper under penalty of perjury. Judge Shira Scheindlin of the District Court in Manhattan used the following pledge to get jurors to promise in writing that they will not conduct any internet research:
I agree to follow all of the Court’s preliminary instructions, including the Court’s specific instructions relating to Internet use and communications with others about the case. I agree that during the duration of this trial, I will not conduct any research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the Court’s instructions immediately.
Signed under penalty of perjury.
I have found that it is helpful if the Court explains why such an admonishment is necessary. When jurors understand that what is available on the information superhighway is often not true or accurate, or there are legal reasons why some information is allowed as evidence and some is not, it can ease jurors’ temptations to sleuth. Also, the Court can try to get the jurors to appreciate that if they were a party in a lawsuit that was going to a jury, they would not want jurors to find their “evidence” on the Internet.
Internet resources provide a competitive advantage for those litigating against large, well- funded opponents. It is no longer necessary to expend thousands of dollars to investigate basic juror backgrounds, but lawyers need to treat the information obtained with great care, lest a juror become hostile from discovering his or her private lives have been uncovered.
Those savings have also come at the cost of making information about all trial participants available to even casual web surfers. Lawyers should consider whether the Internet reputation of a particular witness may affect the credibility attached to that witness.
The true challenge presented by the Internet is educating jurors concerning the unfairness of having jurors obtain information outside of a trial that may be of questionable validity. Legislative and judicially crafted remedies are unlikely to result in jurors taking a hiatus from their iPads during the course of a trial. Trial lawyers should work with the Courts to get the message across that our system of justice can work only when evidence considered by a jury is limited to the facts presented in the courtroom, and not the chat-room.
Dr. Karen Ginn is President of Verdix Jury Consulting, Inc. in Walnut Creek and has been selecting juries in California for 20 years. (925) 256-4479
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