JURY SELECTION IN THE INTERNET AGE – UNCHARTED TERRITORY (CONT)

February 1, 2011

In our last post, we were talking about jury selection and the changes brought about by technology. Attorneys and trial consultants from Portland to Miami and back again want to gather as much information as possible about prospective jurors. An attorney owes his client a zealous defense, and the selection of a jury in a murder trial or product liability suit is a key part of that defense. An attorney wants to make sure the juror isn’t biased against his client, and sometimes jurors aren’t completely truthful about past experiences that could color their opinions.

One example of something an attorney cannot ask about during voir dire is political affiliation. A quick Google search could answer that question, though. More and more, attorneys and jury consultants are turning to the web to find everything they can on prospective or even seated jurors. Before the Internet, investigators would drive by a juror’s house to see if that person lived in an affluent neighborhood. Now, a couple of keystrokes and a few clicks will give an attorney a street view of the house, a link to property tax information and ads for nearby businesses, not to mention the banner for weight loss miracle products. The search was faster, more thorough and much cheaper.

The practice is known to all and discussed by few, according to insiders. Not many lawyers or consultants will own up to searching the web, because procedural rules haven’t caught up with the practice. Federal courts have no guidelines in place, and only two states allow it in one form or another. As one attorney put it, it’s the Wild West out there.

Individual judges have voiced their preferences, forcefully at times. For example: When an attorney was using his laptop to check jurors out during voir dire, the judge asked what he was doing. The attorney explained that there was no code, no law against it. According to the transcript, the exchange went as follows:

Attorney: “I’m getting information on jurors. We’ve done it all the time, everyone does it.”

Judge: “No, no, here is the rule. The rule is, it’s my courtroom and I control it.”

The judge then told the attorney he could no longer google jurors, if only because the opposing legal team had not brought their laptops to court. Googling gave the attorney “an inherent advantage regarding the jury selection process,” the judge ruled.

The appellate court disagreed. The panel said that the judge had erred in prohibiting the online research. There was no advantage, because the Internet had been available to both parties. That one chose not to use it was immaterial.

It’s hard to say where this will go. Many legal professionals find extensive jury “profiling” distasteful, even when the Internet doesn’t play a part. The appellate decision may or may not persuade other courts to follow suit. It may all end up in a big barroom brawl, Wild-West-style.

Source: Westlaw News & Insight, “Googling the perfect juror,” 02/17/11

 

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