Chapter 10 Using the Internet in Jury Selection

• Library: Picking a Civil Jury: A Guide for Illinois Trial Lawyers (2015 Ed.)

CHAPTER 10 - USING THE INTERNET IN JURY SELECTION

Clarence Darrow and the prosecution "were amply equipped with precise intelligence gathered during the massive effort both sides had expended to compile the preferences, affiliations, and dirty little secrets of hundreds of potential jurors. Both sides had sent small armies of scouts into the countryside posing as insurance men, encyclopedia salesmen, and other itinerants."
J. Anthony Lucas, Big Trouble: A Murder in a Small Western Town Sets Off a Struggle for the Soul of America 527 (1997).

And so it was that legendary lawyers like Clarence Darrow in defending "Big Bill" Haywood of a murder charge in Idaho engaged "scouts" to surreptitiously investigate prospective jurors. Lawyers sometimes would simply drive down the juror's street to observe his/ her home and neighborhood. Indeed, investigating jurors is an American tradition that was curtailed in the 60's and 70's partly by the courts and partly by lawyers' introduction of trial consultants who usurped the role of the investigator. The courts' concerns focused on protecting the privacy of prospective jurors and the possibility that contact with a juror or a juror's neighbors and family would taint the forthcoming verdict. To address this concern, and as a counter-measure to attorneys' desire to investigate prospective jurors in the days and weeks before jury selection, court clerks now identify prospective jurors only immediately before or during voir dire.

But just when the practice of investigating jurors before or during voir dire had nearly died, the Internet came along. In 1982, about 8 percent of households reported having a computer. Now, about 80 percent do. Of those using the Internet, 72 percent are active on social media. Worldwide, Facebook has 1.15 billion users, Google has 1 billion enabled accounts, and Twitter has 550 million users.¹ As such, most potential jurors have an "online presence" or "digital footprint" that can be mined for important information that should affect your decision whether to challenge or accept the person as a juror. The accessibility of this information renews your role as an investigator of prospective jurors. One author has even opined that the failure to do online investigations of jurors constitutes professional negligence.² When you are preparing for jury selection, you must have a plan for conducting a fruitful Internet investigation in a manner consistent with the rules of professional conduct and prevailing opinions that attempt to apply these rules to the digital age.

I. When to Conduct the Research

Usually, you will not receive the list of prospective jurors until soon before voir dire is to begin. At that time, you will get a packet containing the identification of the prospective jurors with answers to the short questionnaires. When the court clerk calls prospective jurors to sit in the jury box, your online investigation should begin.

While not yet a widespread practice, courts should consider allowing short recesses during voir dire solely to allow the parties time to conduct Internet research. If your particular court is reluctant to do so, you should consider filing a motion to authorize these recesses, especially in large cases. Internet research of prospective jurors is not merely a tactical move. It is part and parcel of the modern jury selection process and a means of protecting your clients' right to an impartial jury in a civil case that is "capable and willing to decide the case solely on the evidence before it."³ The digital era offers an efficient means to learn about prospective jurors with little or no invasion of the juror's privacy, and courts should therefore not merely allow litigants to use the Internet to investigate jurors, they should encourage it.

II. What Type of Information Are You Looking For?

Ideally, you are hoping to find the juror's opinions on legal, social, political, and other issues. Usually, you will not find the juror's expressions of such opinions. However, if you represent a plaintiff in a products liability case and if your search finds that the prospective juror is an engineer who lives in a staunchly Republican neighborhood and has contributed to a State Representative who champions "tort reform," you can bet he will not be sympathetic to your case. You may wish to use this information to establish cause to reject this juror or, at least, to utilize a peremptory challenge. Your Internet search will usually render information from which you can surmise whether the juror can be sympathetic to your case. To that end, your Internet investigation should seek:

1. Political affiliations
2. Work history
3. Residence information/property values
4. Litigation history
5. Criminal and traffic records
6. Public statements, letters to the editor, etc.

In summary, you are looking for information that identifies characteristics "which may be more telling than demographics" (see Chapter 2.VIII.).

One author suggests asking the prospective juror during voir dire what web sites or social networking sites he/she frequents, or if the juror has written for or contributed to a blog.⁴ Such inquiries may lead you to the desired information. However, jurors may consider it intrusive if you ask these questions. Thus, it may be advisable to ask the judge to make the inquiries. If you intend to ask about the juror's Internet habits, you should request that the court inform the jurors that such questions may be asked during voir dire but that no attorney, judge, or other persons associated with the case should "friend" or otherwise correspond with a juror.

III. The Researcher

Most law offices have a person who is especially good at doing Internet research. Perhaps it's an attorney, a paralegal, or a legal assistant. In our office, we have a paralegal that is the "go-to" person when we are investigating a person or entity. Sometimes we need information about a party opponent to accomplish service of process. Sometimes we are investigating a non-party witness scheduled to be deposed and cross-examined. Often, we are reviewing the background of our opponent's expert witness. These tasks usually cause staff members to become skilled at using the Internet to obtain information about people. This "researcher" should be designated as the sleuth with a laptop to do the online investigation of prospective jurors while you are engaging the judge, jurors, and opposing counsel in the jury selection process.

Before voir dire begins, you and your researcher should have practiced the mechanics of your search. Be sure that the researcher is well versed in the ethical limits on the investigation (see below). You may wish to have a plan in place as to exactly how the research will be conducted. For example, the plan could be simply to present a prospective juror's information to a service, to receive the...