Jury Selection: How Social Media is Changing the Game

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By: Kathleen Pulver,

Ask any trial attorney what the most important part of a trial is and they will likely tell you it is jury selection.[1] In both criminal and civil trials, attorneys on both sides of the case are given the opportunity to question potential jurors through the process of voir dire.[2] Voir dire allows counsel to expose any potential bias and prior knowledge a juror may have about a case.[3] Based on their responses to these questions, an unlimited number of jurors may be removed “for cause.”[4] “For cause” removal allows attorneys to request that a juror be removed from consideration for things such as a close personal relationship to one of the parties or attorneys involved in the case.[5] Attorneys are also typically allowed a small number of preemptory challenges to jury selection, and this is where the “art” of jury selection comes in.[6]

In an effort to achieve the best results for their clients, many attorneys have begun to hire jury consultants.[7] Rising in prevalence since the 1980s, jury consultants are typically highly educated in the social sciences and occasionally the law, although a law school education is not required.[8] The first time jury consultants received major attention in the press was the O.J. Simpson trial.[9] Since the O.J. Simpson trial, jury consultants have been hired by defense counsel to assist in jury selection and trial strategy preparation in many cases, with some of the most notable being the Scott Peterson and Martha Stewart trials.[10] Now, the art of jury selection is also being broadcast into people’s homes with CBS’ new show, “Bull.”[11] Although not an entirely accurate depiction of the day-to-day workings of a jury consultant, “Bull” demonstrates how far jury selection has come since the 1980s, and presents some important legal questions for the future of jury consultants.[12]

In the 1995 trial of O.J. Simpson, Jo-Ellan Dimitrius, a relatively unknown trial strategist, was hired by Simpson’s defense team to help select the jury and prepare a trial strategy.[13] Dimitrius’ main job in 1995 was to design a questionnaire for voir dire which would help the defense select a jury that would be most sympathetic to Simpson’s side of the story.[14] Dimitrius studied the jurors’ body language, background, and comments during questioning, and then made recommendations to defense counsel.[15] In making her recommendations, Dimitrius was limited to the responses given by the jurors in voir dire.[16] Almost 10 years later, Dimitrius was hired by Scott Peterson’s defense team to help select a jury that would be most favorable to him.[17]

Unlike the O.J. Simpson trial where Dimitrius described the perfect juror as “a female African American with a high school education or less,” Dimitrius was looking for strong-willed people who were skeptical of authority and might believe that Laci Peterson, Scott Peterson’s wife, had died differently than the authorities were suggesting when selecting jurors for the Scott Peterson trial.[18] Once again, it was Dimitrius’ job to focus on the appearance of jurors and the way they answered questions during voir dire.[19] Juror responses to seemingly innocuous questions about favorite books, bumper stickers on their cars, religious affiliations, and which newspapers they read were turned in determinations about their personalities, their ability to keep an open mind during the trial, any bias they may hold towards either side, and ultimately the way they would rule at the end of the case.[20] Now, as “Bull” makes clear, jury selection doesn’t have to remain limited to the juror responses in court or their demeanor while they answer questions.[21]

The emergence of social media has greatly changed the process of juror selection.[22] Now instead of reviewing the information that jurors make available to attorneys in court, jury consultants and attorneys can access piles of additional information on a juror by conducting a simple internet search.[23] This presents a wealth of questions about the privacy to be afforded jurors and to the privacy of the jury process as a whole.[24] Ethically, the American Bar Association model rules say attorneys can conduct “passive” searches of social media profiles and the internet when researching jurors, as long as they do not “friend” the jurors on any social media sites to access additional information or act fraudulently.[25] Although ethically permissible, some courts have started to limit attorneys’ use of social media for the jury selection process.[26]

In Oracle Am., Inc. v. Google Inc., the court published an opinion regarding the use of social media in jury selection citing three main concerns: first, if jurors learn the attorneys are conducting internet searches into their lives, they will ignore the court’s instructions to not conduct searches into the attorneys and parties of the cases; second, allowing such in-depth searches of the potential jurors will allow attorneys to make inappropriate personal appeals to the jurors later in trial; and third, jurors are not the ones on trial during a case, and investigating them so heavily could be a breach of their right to privacy.[27] In this case, the court gave the attorneys two options: one) they could mutually consent to an outright ban on the use of the internet when conducting voir dire, and therefore have an extended period of time to ask the potential jurors additional questions; or two) they could use the internet, but they had to notify the jurors that they would be searching their social media sites, and the jurors will then be given an opportunity to adjust their privacy settings from their phones if they wish.[28] Either of these options has the potential to limit attorney’s access to information regarding the potential jurors, but may be the only way in which to protect the privacy rights that people have come to expect in today’s age.

Although unclear just how much of effect jury selection actually holds on the outcome of a case, it is unlikely that the use of jury consultants will slow down anytime soon. What is clear is that courts have started to take notice of the potential privacy problems which arise with the use of jury consultants and social media. [29] Only time will tell how courts decide to handle these issues as they arise.

 

 

[1] See generally Diana Walsh, The Peterson Trial / The art of high-stakes jury picking / 2 seasoned consultants compete in courtroom, SFGATE (Apr. 4, 2004) http://www.sfgate.com/bayarea/article/THEPETERSONTRIALTheartofhighstakesjury2397588.php

[2] See American Bar Association, https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/juryselect.html.

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] See Sally Kane, Jury Consultant, The Balance (July 25, 2016), https://www.thebalance.com/jury-consultant-2164304.

[8] See id.

[9] See Simpson Defense Team Hires Jury Consultant, N.Y. Times (Aug. 11, 1994), http://www.nytimes.com/1994/08/11/us/simpson-defense-team-hires-jury-consultant.html.

[10] See Diana Walsh, supra note 1; Leslie Eaton, Working Women Dominate the Jury for Stewart’s Trial, N.Y. Times (Jan. 27, 2004), http://www.nytimes.com/2004/01/27/business/working-women-dominate-the-jury-for-stewart-s-trial.html.

[11] See Roy Futterman, Talking ‘Bull’: Episode 5, Just Tell The Truth, Law 360 (Oct. 26, 2016), http://www.law360.com/articles/855908/print?section=legalindustry

[12] See id.

[13] Marc Davis & Kevin Davis, Jury consultants are changing with the times 20 years after the OJ verdict, Aba Journal (Jan. 1, 2015).

[14] See Simpson Defense Team Hires Jury Consultant supra note 9.

[15] See id.

[16] See Meet the ‘Secret Weapon’ Who Told O.J. Simpson’s Attorneys How To Pick a Jury, Inside Edition (Mar. 15, 2016), http://www.insideedition.com/headlines/15265meetthesecretweaponwhotoldojsimpsonsattorneyshowtopickajury.

[17] See Diana Walsh supra note 1.

[18] See id.; Simpson Defense Team Hires Jury Consultant supra note 9.

[19] See Diana Walsh supra note 1.

[20] See id.

[21] See Roy Futterman supra note 11; Marc Davis supra note 13.

[22] Marc Davis supra note 13.

[23] See id.

[24] Oracle Am., Inc. v. Google Inc., No. C 10-03561 WHA, 2016 U.S. Dist. LEXIS 39675, at *6-10, (N.D. Cal. Mar. 25, 2016).

[25] Model Rules of Prof’l Conduct r. 3.5(b) (Am. Bar Ass’n 1983). Each state has the opportunity to create their own rules, however, so this is not necessarily the standard everywhere.

[26] See e.g., Oracle, supra note 24; Omni Healthcare Inc. et al. v. Health First Inc. et al., 6:13-cv-0150, ECF No. 330 (M.D. Fla. August 19, 2016).

[27] See Oracle, supra note 24.

[28] See id.

[29] See id.

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