Chapter 8 Jurors and the Internet
| Library | Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.) |
Objectives
• To understand the opportunities presented by jurors' presence on the Internet.1
• To understand the threats posed by jurors using the Internet.
• To develop approaches that maximize the benefits of the Internet for jury selection.
• To develop approaches that minimize the threats posed to jury trials by the Internet.
In June 2009, a San Francisco Superior Court judge heard comments from a potential juror revealing a fairly detailed knowledge of the case for which he had been called. Upon further questioning, the juror admitted conducting Internet research but said that he had not been told to avoid doing so. Subsequent questioning of other potential jurors revealed a number of potential jurors who admitted conducting Internet research on the case. Some jurors admitted having heard an admonition against investigations, while at least one potential juror did not think this applied to Internet research.
The result: The entire pool of six hundred potential jurors was dismissed.2
In 2007, a potential juror received a jury summons and juror questionnaire for a civil wrongful death/product liability case. The juror conducted Internet research on the defendant company prior to trial yet failed to reveal this during voir dire questioning. During deliberations, the juror informed other jurors he found no indication of problems with the defendant's product (seatbelts) during his searches on the Internet. The jury returned a verdict for the defendant.
The result: Juror misconduct, verdict vacated, and new trial granted.3
In March 2009, a federal judge in Miami received a note from a juror reporting that another juror had conducted research on the Internet. With hopes of minimizing the impact on deliberations, the judge questioned the offending juror and discovered the research revealed evidence excluded from the trial. Questioning of the remaining jurors revealed that eight additional jurors had conducted Internet research, including Google searches on the parties, accessing news reports and excluded evidence, and searching in Wikipedia for relevant legal and technical definitions. When queried about these actions, one of these jurors responded, "Well, I was curious."
Snapshot One: General Internet Usage by Adults.7
83 percent of adults use the Internet
Of these:
92 percent use it to read or send e-mail
91 percent use online search engines, of which
— 59 percent use this feature at least once daily
— 73 percent view most or all resulting information as being accurate and trustworthy
— 76 percent use it to get news online
The result: Juror misconduct, and a mistrial declared.4
In 2008, a potential juror who maintained a blog before trial, decided to write about his experiences once picked as a juror. This juror became foreperson of the jury and posted comments on the evidence, testimony, court personnel, and, through the use of his cell phone, posted a picture of the murder weapon itself. He even hosted a chat room where he would discuss the case with those who entered. His indiscretions were discovered after the verdict was returned. The juror testified during his contempt hearing that it was "never my intention" to violate the court's order regarding conducting outside research.
The result: Juror contempt for misconduct.5
Finally, an English juror sitting in a criminal trial during November 2008 was undecided on how to vote. She decided she would get advice from the Internet world. She posted details of the case on her Facebook page with the request, "I don't know which way to go, so I'm holding a poll." An anonymous tip alerted the judge to this activity and to the fact that an undisclosed number of people had responded, some recommending guilty verdicts.
The result: The juror was dismissed.6
The Internet plays a prominent role in American society, as illustrated in the "snapshots" reported here. In Snapshot One, we see that a vast majority of adult Americans use the Internet, with a substantial majority using its information gathering and resource capabilities. Snapshot Two shows that the devices used by jurors are increasingly mobile and Internet friendly, with the percentage of adults owning Internet and/or messaging capable devices being 92 percent for cell phones and smartphones (68 percent smartphone ownership),8 73 percent for computers and laptops, and 45 percent for tablets, e.g., iPads. Finally, in Snapshot Three, we see that majorities of adults participate in online social media, with approximately three-quarters of Internet users participating in social networks; substantial numbers of which participate on a daily or at least weekly basis. The Internet is both a potentially powerful tool in terms of jury selection and a potential threat to the integrity of jury trials.
Snapshot Two: Device Ownership among Adult Americans (Jurors)9
92 percent own a cell phone, including smartphones
73 percent of adults own a desktop or laptop
68 percent own a smartphone
45 percent own a tablet, e.g., iPad
Snapshot Three: Use of Social Media by Adults (Jurors)10
Of adults using the Internet:
72 percent use Facebook, of which
— 70 percent use daily25 percent use LinkedIn, of which
— 91 percent use at least weekly
— 22 percent use daily31 percent use Pinterest, of which
— 52 percent use at least weekly
— 27 percent use daily28 percent use Instagram, of which
— 55 percent use at least weekly
— 59 percent use daily23 percent use Twitter, of which
— 76 percent use at least weekly
— 38 percent use daily15 percent use discussion forums
— 59 percent use at least weekly
10 percent use the blogging website Tumblr
The presence or "footprint" of potential jurors on the Internet and their exposure to case-relevant information are important considerations in selecting a jury. Attorneys can access the expanding Internet footprints of jurors through online public records or databases; membership in social, political, and other organizations or causes with an Internet presence; membership in social networking websites (e.g., Facebook, Instagram, Pinterest, and Myspace); and the Internet postings and comments made by potential jurors through their home page postings, blogging and live journaling, and posts from microblogging websites such as Twitter.11 In addition, potential jurors may come in contact with information relevant to the case as a result of their routine use of the Internet (e.g., online news/media sources) or through searches specifically targeted to the litigation at issue or terms, instructions, or evidence used at trial.
While Internet information concerning potential jurors can be useful, it has limitations. It is not as broadly based, litigation specific, or as systematically available from all jurors as is information collected in the courtroom.12As such, information gained from the Internet should supplement information gained through voir dire and juror questionnaires. Nonetheless, several types of online information are available and potentially helpful, including (l) public records; (2) data regarding involvement in politics; (3) causes and interests; (4) juror websites and social networking websites; (5) news or media stories; (6) blogs and live journaling; and (7) other Internet sources.
While traditionally accessible only in clerks' offices and governmental agencies, information on potential jurors is becoming available through the posting of public records on the Internet. Public records cover a variety of types of information, including civil and criminal records, voter registration, political contributions, motor vehicle records, and property tax records. Some companies and online databases suppliers, e.g., Westlaw, provide civil and criminal records searches on a commercial basis. Political party registration and/or political contributions are publically available, although with some limitations across states. For example, you can search the online database of political party affiliation and registration in North Carolina13 or purchase the database on CD for a small fee.14 As shown on page 257, jurors' contributions to national presidential and congressional candidates and PACs are available from the Federal Election Commission's website,15 with state and local campaign contributions listings often being available on a state-by-state basis.16 Finally, some local governments and agencies post minutes of meetings, including speakers for and against agenda items, and petitions presented to them.
Potential jurors' participation in politics or the political process is reflected in activities beyond political contributions and party registration (which is not required in many states). Political party preferences or leanings of jurors may also be inferred by their being listed as "friends" or "fans," or by their "liking" websites sponsored by political parties or political candidates. For example, on November 27, 2017, the following Facebook websites listed "likes" for their websites as follows:
| Political entity | Likes |
| Democratic Party | 1,541,74117 |
| Republican Party | 2,167,44818 |
| Hillary Clinton | 9,947,08719 |
| Donald Trump | 22,868,30220 |
| Barack Obama | 55,171,30721 |
Knowing if potential jurors have contact with certain websites either in terms of which websites they are visiting or being a "friend" or "fan" or having "liked" a given website can give you a surrogate glimpse into the jurors' political and/or social beliefs.
Beyond political candidates and parties, jurors' contributions to referenda or propositions are available in some states. For example, in addition to political contributions, California posts contributions by individuals supporting and opposing ballot measures, e.g., 2,488 contributors gave $5,132,588.57 for or against the 2012 Proposition 19 (legalize and tax marijuana).22 Interested parties...
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