Yesterday over at Hercules and the Umpire, Judge Kopf noted an article from the Federal Judicial Center regarding social media use among jurors. Also in the article was a brief bit on social media use by attorneys during voir dire.
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.
Which caused Judge Kopf to ask: “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? ”
It doesn’t make sense to me either. For better or worse, looking up people online has become the de facto response to, well, everything. Meet a potential business client? Head to LinkedIn, time to connect. Fancy a girl? Hit them up on Facebook (though, depending on their age, many people have moved on to Instagram or Snapchat). Need to find a mechanic? Go to Yelp, Craigslist, or to your city’s sub-Reddit. Almost everything — every business, every person — has some type of digital footprint. So why wouldn’t an attorney conducting voir dire take the opportunity to find out what they can about jurors? Especially when courts are squeezed with time and attorneys are afforded less and less time to conduct voir dire at times.
Googling jurors is not a new trend either. ATL alumnus Kashmir Hill wrote about it back in 2011:
Reuters took a look at this last week, quipping that “voir dire” is becoming “voir Google.” It’s presented as a questionable and still evolving practice, but also as increasingly, an essential part of the practice. If your lawyer isn’t Googling and Facebooking every potential juror during jury selection, then you may be at a disadvantage.
Which is likely true. If given two equally competent attorneys and one has access to online research during voir dire and the other does not, it’s tough to imagine that the attorney with access to online research is not going to have an edge in selecting jurors. In fact, the ability to conduct online research on jurors was deemed so necessary, that back in 2010 the Missouri Supreme Court found that attorneys have an affirmative duty to conduct online research while conducting voir dire. The Missouri Supreme Court wrote:
[I]n light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention at an earlier stage. Litigants should not be allowed to wait until a verdict has been rendered to perform a Case.net search . . . when, in many instances, the search could have been done in the final stages of jury selection or after the jury was selected but prior to the jury being empanelled. Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010)
While the holding specifically relates to case.net, it establishes that the ability to conduct online research of potential jurors is an essential part of voir dire.
And being able to Google jurors can also provide deep insight into potential biases and connections that may exist that would likely never come up during traditional voir dire. A couple years ago, an Alabama attorney allowed a Reuters reporter to follow along as he and his team conducted research on the jury pool:
After the jury list was culled by eliminating former Wooten clients and others who would be knocked out of the pool anyway, a paralegal began assembling profiles based on each would-be juror’s online persona. The paralegal scanned Facebook, MySpace and Twitter, and used Google searches to find jurors’ names on the websites of government agencies, school boards, local companies, and sites that contain property records. Links to each site were assembled in a spreadsheet.
The online review quickly produced useful insights for Wooten to take to voir dire. For example, the Facebook page of Juror 115 contained, in Wooten’s estimation, both positive indicators and red flags. Wooten was pleased to discover that the 32-year-old white male is Facebook friends with three people from Wooten’s high school class and with one of his clients. Also, the juror “likes” the Chambers County Sheriff’s Department; one of Wooten’s grandfathers was a police officer in the area. “We have a lot in common,” Wooten said.
Armed with such knowledge, Wooten was able to make much more informed decisions than he would otherwise. But despite these advantages, roughly 25% of the judges from the Federal Judicial Center survey do not allow online research of jurors. So I’d like to echo Judge Kopf’s question: Why? Unfamiliar with technology and what it can do? Fear that one side will be more savvy with online research and it could tip the balance in their favor? Sticklers for traditional and the rules? What do you think?
Keith Lee practices law at Hamer Law Group, LLC in Birmingham, Alabama. He writes about professional development, the law, the universe, and everything at Associate’s Mind. He is also the author of The Marble and The Sculptor: From Law School To Law Practice (affiliate link), published by the ABA. You can reach him at firstname.lastname@example.org or on Twitter at @associatesmind.