Google Mania (Part 2): Voir Google?

Admit it.  Every attorney, jury consultant and client wants to know as much as possible about prospective jurors before seating a panel, and thanks to Google, peeking into a juror’s private life has become as easy as pie.

Facebook, Twitter, blogs, personal websites and professional networking sites have– to the chagrin of many– become perfectly acceptable places for people to post their most intimate and personal thoughts.  Society’s “social filter” has weakened, and information that one might not share with coworkers is now posted on Facebook for hundreds to see.  With the click of a mouse, we can learn about a person’s religious beliefs. Political leanings.  Property values.  Lawsuit history.  Views on healthcare.  Educational background and job experience. The list goes on and on.

The very nature of voir dire relies on a juror’s willingness to not only self-disclose, but to do so honestly and fully.  Sensitive, personal or politically incorrect comments are difficult for jurors to share…and sometimes, they don’t.  (See prior blog post “Jury Selection and Reality TV: The Need for Acceptance”)  Supplemental juror questionnaires are tremendously helpful in assessing juror bias and opinions, but oftentimes, these questionnaires are limited to basic demographics and work experience.  The Internet allows us to dig beneath the surface and to learn a little more about what makes a juror tick.

While Googling jurors before, during and after voir dire is an increasingly popular trend, the courts across the country continue to struggle with the issue and attorneys continue to seek a clearer understanding of what is permissible.   In the absence of clear case law or specific professional codes, we can rely on commonsense, jurisdictional practices and industry guidelines.

The American Bar Association published two podcasts a few years ago that addressed professional ethics and the role of the Internet.   I’ve taken the liberty of summarizing the relevant portions and adding a few personal comments as well. However, if you’d like to listen to the actual podcasts, click here and here.

It is okay to Google a juror?

The ABA says yes.  Attorneys (and their trial teams) may investigate prospective jurors to identify potential causes for challenge.  What is forbidden, however, is communicating directly or indirectly with prospective jurors, their family members or doing anything that might be considered harassment.  If a juror reasonably believes that you are “watching him” and your conduct causes that juror to feel uncomfortable or under duress, the line between ethical and unethical conduct becomes murkier.

Can I “Friend” a juror or his family members?  

While there is no clear-cut code or rule on this, based on the rule against “directly or indirectly communicating” with jurors, I’d avoid this one like the plague.   Do not “Friend”, “Follow”, “Connect” or in any way establish a connection with the prospective juror or known family members or friends…and this applies to your friends, too.  Don’t ask them to act as your surrogate and “Friend” the juror for you.  It’s also unwise to post comments on a prospective juror’s blog or website, anonymous or not.

Should I tell the panel I Googled them?

If your research reveals a relevant nugget that is not disclosed on juror information cards, written questionnaires or during oral Q&A, you might want to think twice about announcing this newfound information blatantly to the entire panel.  I recently observed a trial attorney who began his voir dire by telling the jury panel that he Googled everyone.  He then singled out a gentleman on the panel, told him he read his Facebook page and then proceeded to tell the entire panel what it said.  To be fair, the exchange was a wee bit funny, but you could almost cut the juror’s tension with a knife. While the rest of the panel laughed, a bit of paranoia set in with this particular juror.  And perhaps others.

While I don’t think you need to hide the fact that you Google the panel, I would caution against making such a bold announcement or using the information you learned to single out any particular juror.  Remember, establishing a safe culture for voir dire is crucial to juror self-disclosure.  If jurors feel you’ve invaded their privacy, they will be less likely to disclose.

Another issue to consider is Google Analytics.  Many people have this feature installed on their computers, and it allows them to see which networks have accessed their websites and/or blogs.  If you choose to Google from within the walls of the law firm, be aware that your firm’s network name (e.g., Smith Jones & Anderson, PC) may very well appear in Google Analytics results.  If you’re concerned about this, you may want to conduct the research on another network.  The same issue applies to LinkedIn.  Some people have accounts that allow them to see who has viewed their profiles.  Something to keep in mind when conducting your online research.

What can I do with the information I learn from Google?

Section 19B of the American Trial Lawyers Annotated Code of Conduct only addresses the act of conducting research.  It is not clear on how such research can be used (at least as of the date of the podcast).  However, there have been recent cases where such information was used to ultimately excuse jurors or, in a recent criminal matter, used to force a retrial on lesser charges.

If the information learned presents an obvious cause for challenge, then it should be utilized.  But tread lightly.  I have yet to find any clear rule, code or judicial opinion on how such information should be used, but commonsense suggests that jurors should be given ample opportunity in open court to self-disclose without being put in the proverbial “hot seat.”  If you possess information about a prior lawsuit and the juror denies having any experience with lawsuits, I would suggest flagging the juror for individual voir dire.  Addressing the issue individually minimizes the risk of alienating other panel members by playing a game of “gotcha” with a potential juror.

Do your homework before you Google.  

Research the the rules in your jurisdiction, specific court practices, rules of the court for your trial judge, and any press releases or orders published by the court.  Some judges frown upon researching jurors.  Some states have disclosure mandates if certain information is researched. Know the rules and then go forth and Google!

In our final post of the “Google Mania” series, we’ll address a few recent rulings and/or laws related to internet research.