Flying Blind in Jury Deselection: The Value of Social Networking Searches

There has been a lot of dialogue concerning social networking searches of a potential jury venire to learn more about the individual jurors.  Most of this discourse focuses on the ethics of such searches, which is an important consideration, and Litigation Insights only performs social searches following the ethical guidelines set out by the American Society of Trial Consultants (ASTC) and the American Bar Association (ABA).  When conducted using these guidelines, social searches can be an important tool, particularly in jurisdictions that limit voir dire, and especially in Federal Court.

In most Federal jury selections, only those jurors who raise their hands to the judge’s questions are asked follow-up questions by counsel and/or the judge.  However, counsel rarely has an opportunity to query jurors who do not raise their hands in voir dire.  For these jurors, the only information available to both sides is that on the jury list (e.g., in most cases, age, occupation, education and city).  As the odds would have it, many of the jurors who didn’t raise their hands during voir dire are seated in the box among several of those who did.  Now you are flying blind; you only know about the jurors you spoke to and nothing about the other jurors on your panel.  How do you make intelligent, informed decisions about how to use your peremptory strikes?

In a recent jury selection, we were faced with this exact scenario.  Once the jurors were seated in the box, there were about half who remained silent during voir dire.  But for our social searches, we knew nothing about them.

Properly using social searches of publicly available information in this instance allows counsel to have a sense of jurors’ online footprint – the social attitudes and beliefs they have revealed publicly.  The benefit is that you learn information about jurors who were silent during the limited voir dire process.  Moreover, you gain additional information on the jurors who did talk during voir dire, including attitudes and expressions they might never say in open court.

Based on our online research in the above trial example, we identified a juror who had strong anti-corporate and anti-government attitudes per his blog and Facebook posts.  As luck (or bad luck) would have it, he was seated in the jury box.  He was an unassuming juror, dressed well and employed.  Just on looks and demographics, we would have skipped over him had it not been for what we uncovered via his blog posts.  If we hadn’t conducted social searches in this case, we would have kept a juror who held a mindset that would have prevented him from hearing our corporate client’s case themes/arguments.

While not every juror has an online footprint, for those that do, some of that information helps us make more informed decisions concerning the few precious strikes afforded to us.  Striking the juror we describe in this example was the right call.  While removing him was not the only factor in the defense verdict for our client, leaving him on the jury certainly could have played a significant role in an adverse decision.

At Litigation Insights, we have developed a detailed process to search jurors’ online footprint for valuable information trial teams can use to make intelligent decisions during jury selection.  Consider how conducting social searches could help your clients in their future cases, as they may keep you from flying blind in a Federal Court.

 

MJP

By: Merrie Jo Pitera, Ph.D. – CEO