Getting Up Close and Personal: Using Social Media in Jury Selection

by Dennis Elias

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Getting up Close and Personal:

Voir dire is often too brief or too constrained by the preferences of the court or the skills of the questioner.  The advantage of revealing and exploring the values and attitudes of venire members to inform deselection choices often is challenged by the limits imposed upon voir dire.  We do know this: Jurors are more candid online then they are in the courtroom. We know from social science research that responses to Supplemental Juror Questionnaires are more revealing and more truthful than responses to oral voir dire. It’s one small step to extrapolate that, in the privacy of your own home typing on your own laptop in your blog or Facebook, such expressions would be more revealing and more likely to be a true reflection of held attitudes, values and opinions. Being able to use Internet searches and Social Networking publicly published is a boon to the trial attorney hoping to select an unbiased and open minded jury.

Reuters quipped that traditional voir dire is being transformed into “Voir Google”.  Both Forbes and the Wall Street Journal Online have addressed what is perceived with some concern the evolving practice of Social Media Analysis. Online juror vetting can serve as a way to bypass court imposed restrictions and other limitations on voir dire which can be especially helpful in state and federal courts where a lawyer conducted voir dire is not permitted.

Scanning Facebook , MySpace and Twitter , and using Google searches to find jurors’ names on the websites of government agencies, school boards, local companies, and sites that contain property and court records can be very revealing. Links to each site can be assembled in a spreadsheet. Results from these searches can be used to compose a profile of the potential jurors’ online persona and a record of salient attitudes and actual behavior which is a gold mine for the juror deselection process.

A study by Acquisti & Gross (2006) noted that while concern for online privacy is high there is no significant relationship between individual’s privacy attitudes (how protective they believed themselves to be) and their likelihood of sharing personal information on-line. Majorities reported providing “complete and accurate” information about their birthday, their political views, and their sexual orientation, among other things.

The federal courts so far have not addressed the issue of online vetting of jurors, and just two states, Missouri and New Jersey, have said it’s acceptable in some forms. But judges and lawyers, even in those states, still seem to be grappling with the practice.

Trolling Twitter, Cable TV and Blogs:

In a ground breaking effort, Amy Singer, with the aid of other professional trial consultants,  during Casey Anthony’s weeks long trial, daily analyzed more than 40,000 highly charged opinions, both negative and positive on social media sites and blogs, and use them to help the defense crafted trial strategy. This pro bono aggregation of trial consultants from all over the country intervened when they became concerned about the volatile nature of television media as well as social media and the impact it would have on seating a reasonably fair and open-minded jury.

Especially in highly publicized cases like the Casey Anthony murder trial, monitoring social media sites like Facebook and Twitter and Blogs can and does revolutionize the way lawyers and trial consultants advocate for their clients.  Scanning tweets, Facebook posts and messages from bloggers, and other media sites can provide trial advocates a means to gauge opinions about the plaintiff, prosecution or defense, trial attorneys, witness testimony, evidence, and the developing focus point of the trial whatever that may be.

In the in the highly publicized case, daily monitoring of the social media becomes an online shadow jury. Naturally, the trial attorney and the trial consultant must decide how and when to adjust trial strategy. This is a tool that opens public postings to tap into people’s minds as gauge of likely juror attitudes as an adjunct to trial strategy.

One thing is clear, attorneys and consultants should be using this information, but only as long as they’re looking for public information and not using techniques to get past privacy walls. Statements, attitudes, and expressions on the potential jurors “wall” is public, and the only way to tell if it could be relevant to the case at hand is by reading it.

Social media analysis, when ethically and properly done amounts to a study of public records (using sites such as KnowX and ZabaSearch ) as well as available social media (Google, Twitter, Facebook, etc.) to identify the evident experiences, attitudes, and beliefs of potential jurors. Based on this research, attorneys receive advice on any potential concerns with prospective jurors. When a jury is seated; the team can also monitor any active social networkers known to be on the jury, to make sure they aren’t blogging about the trial, for example, and risking a mistrial.

Ken Broda-Bahm, a senior trial consultant for Persuasion Strategies has listed a very helpful set of do’s and don’ts as it relates to social media analysis in their great blog, LitigationPS

“This is what I consider responsible social media analysis:

1) Run juror names through a public records database. Most of the information you retrieve will not be especially important, but occasionally you will be surprised. In one of our cases, for example, we found that an attorney who had been disbarred in two states for defrauding clients (but who said in voir dire that he had “never been involved in a legal proceeding”) was potentially sitting in a trial…for a fraud case.

2) Run jurors’ names through the common search engines as well as those sites which are currently vogue (e.g., Facebook and Twitter).

3) Include common variants of juror names, as well as identifying information like hometown and age.

4) Remember there is no substitute for case-relevant questioning in either oral voir dire, a supplemental juror questionnaire or a combination. On-line investigations can give you a good picture of your juror, but you won’t see the full set of attitudes and experiences that bear directly on the issues in your case.

5) Don’t believe everything you read. Something isn’t more “true” because it is on the internet, and we all know that there is a certain level of posturing (or social desirability bias) present in on-line writing.

And this is what I consider over the line:

1) Don’t violate the intent of privacy settings. If a writer makes it public, it is public. If, on the other hand, the writer intends to make it visible to registered members or to those who are “friended,” then it is private. Even if there is a technical way to view the data, don’t do it.

2) Don’t ‘friend’ potential jurors. This seems obvious. However, the Wall Street Journal reported that a Cameron County, Texas District Attorney has supplied iPads to his prosecutors for use during voir dire (not necessarily a bad idea) and is considering ways to get behind potential jurors’ privacy walls in Facebook by offering them free internet in exchange for “friending” his office (definitely a bad idea). I imagine that defense attorneys are a little disturbed at the notion of their entire panel being asked to “friend” the prosecutor. Even without the enticement of free internet access, any access request is a form of contact, and a party’s contact with potential jurors is prohibited for a good reason.

3) Don’t make an enemy of the judge. Whether you or I can defend the practice is one thing, and whether your judge approves of it is another. As one New Jersey attorney found out, it isn’t a good idea to sit in court Googling jurors if the judge finds that practice disturbing. While an appeals court ultimately ruled in favor of the attorney, the best practice is to know and follow the judge’s preferences. When a venire list is available in advance, you should conduct your searches from the safety of your own office.

While the practice of social media analysis is not new, we can expect it to fall under greater scrutiny. The American Society of Trial Consultants has adopted professional standards relating to background checks on potential jurors, which basically track what I’m suggesting above: go ahead and gain the relevant information, but respect potential jurors, be honest, and follow the law. Not so hard when you break it down.”

In summary, Social Media Analysis supplements and expands the armamentarium the trial advocate has to inform and illuminate the attitudes, values, biases, and behavior of prospective jurors. Like properly conducted oral voir dire and the effective use of Supplemental Juror Questionnaires, knowing what makes your venire panelists tick is the first crucial step in the pursuit of justice for your client. Social Media Analysis is a valuable and expanding means of getting the job done for effective jury selection.

 

 

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