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American Bar Association - Defending Liberty, Pursuing Justice

Fall 2008

Vol. 5, No. 1

Litigation

 

Voir Dire: To Google or Not to Google

A seasoned attorney packs his bags and shuffles out of the courtroom. He knows that the jury selection will continue the next morning. In his hands rest a stack of juror questionnaires. The million dollar question: Does he search Google or a similar Internet search engine for more information about the strangers who could decide his client’s fate?

The initial act of researching the lives of potential jurors is painless. It is quick and inexpensive. With a click of a mouse, an attorney can have a heap of information regarding potential jurors: socioeconomic information, religious affiliation, education, and political campaign donations. With two more clicks onto a blog or a social networking site, the attorney can know details about the people in the juror’s life. “Eureka!” The attorney’s mind jumps to how this insight should alter his opening statement. Throw in a few dollars and the juror’s criminal background is available.

The Hesitation

With all these benefits, it seems peculiar that attorneys would think twice before “Googling” members of the potential jury pool. Are there risks to performing Internet investigations into the lives of potential jurors? U.S. District Judge David Coar thought so in 2006 when he banned search engine inquiries into the prospective jurors in the corruption trial of former Chicago mayoral aide Robert Sorich and codefendant Tim McCarthy.

“I am not in favor of Googling jurors unless there is some incredible need to do that,” said Pat Deady, attorney for Tim McCarthy. He agreed with the court’s pre-voir dire decision to prohibit him and his colleagues from investigating the background of potential jurors. “No good can happen,” he said.

Deady falls into one camp on the debate into juror research—the camp that sees peril for the sanctity of the jury, in the abstract, and the potential for a circus in the courtroom. But how can more information be bad? To best understand Deady’s position, picture yourself as an attorney in Chicago.

The “Tainted” Jury

Illinois has had more than its fair share of concerns over the practice of investigating the lives of jurors in the technology age. The most infamous involves the former Illinois Governor George Ryan, who underwent a five-and-a-half-month trial for corruption. After eight days of jury deliberation, reporters from the Chicago Tribune uncovered public records suggesting that two of the jurors had provided false answers on the jury questionnaires. Convicted felons are barred from serving on federal juries. Both jurors had records. The Court substituted alternate jurors during deliberations, and Ryan was sentenced to six and a half years in prison.

Earlier this year the Supreme Court refused, without comment, to hear Ryan’s appeal that his jury was tainted. Not all judges responded to Ryan the same way. Judge Reggie Walton ruled in January 2007 that all potential jurors would undergo criminal background checks in her courtroom during the Lewis “Scooter” Libby Jr. trial.

It is possible that the more information the system has on a potential juror, the better chance at a trial free from prejudice. Then why are even those who favor investigation hesitant? There is not enough precedent to define attorney conduct in this arena. There is an unknown risk of jury tampering, professional responsibility concerns, trial disruption, and respecting privacy. Without clear decisions, this is a challenging landscape.

Jury Tampering

Jury tampering is a gross misdemeanor under the laws of each state. Jury tampering in most states hinges on communication with jurors. A person is guilty of jury tampering if, with intent to influence a juror’s decision, he attempts to communicate directly or indirectly with a juror other than as part of the proceedings. An Internet search is unlikely to be considered an attempt to communicate with a juror. That does not mean that an attorney is completely free from caution online. Neither attorneys, nor their agents, should e-mail or post comments on websites that their jurors are known to frequent.

Improper Influence over Jurors

A request for access to juror’s private sites may lead to influence under RPC 3.5. If a juror has a private Myspace or Facebook account, any attempt to view the private page would require an electronic message requesting access. This is likely an improper communication and influence. Attorneys should be careful that investigation does not actively interact with a juror’s web presence in a way that could lead to favor or disfavor.

Discovering Bias

Parties have a right to the free judgment of a jury, unclouded by bias, prejudice, or fixed or preconceived opinion. An investigation into a juror may unearth grounds for excluding a juror for these reasons. Prospective jurors can be removed for cause if they possess a state of mind that satisfies the court that the challenged person cannot try the issue impartially and without prejudice.

Attorneys have a duty of candor to the court. The duty of candor to the tribunal under the Model Rules of Professional Conduct suggests that the attorney’s role is to present evidence and argument so that the case will be decided according to the law. When information is known, be it from any source, that may prevent the case from being decided by law it is ethical to inform a tribunal as soon as possible.

Benefits to the Profession

Respect for the privacy of the jurors is undoubtedly a concern. No one wants his or her privacy invaded, and almost everyone sneers at decreasing privacy in the information age.

Yet in some ways increased juror investigation may show more respect for the individuality of jurors. For years the practice of law has relied heavily on stereotypes during jury selection. Data is published left and right discussing whether married mothers are better jurors than single women for cases against corporations, or whether men over 50 are good picks for a jury trial about Social Security fraud. There is tremendous potential with juror research to step away from classifying individuals by these subcategories. Instead, an attorney can look at a blog and say, juror 12 seems compassionate or juror 15 seems financially savvy. The characteristics of the jurors are determined by their actions online, and not by their membership in a certain classification.

As that seasoned attorney unpacks his bags at his office and looks at the questionnaires, it is apparent that the decision to Google or not to Google is not clear-cut. But inside the stack of juror questionnaires are individuals and not categories like city dweller or grandmother. The million-dollar question may not be whether to investigate or not, but rather how to find moderation to increase, not hinder, the chances of a fair trial.

Jamila Johnson practices in the area of civil litigation at the regional law firm of Schwabe, Williamson and Wyatt. She is a former editor of the Shidler Journal of Law, Technology, and Commerce at the University of Washington and the associate editor of DeNovo, the official publication of the Washington Bar Association Young Lawyers Division. She can be contacted at 206-407-1555, or . Assistance was provided by Scarlett Hunter, a third-year law student at Seattle University, clerking in the firm’s Seattle office during Summer 2008.

Note

Originally published in the August 2008 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.

© Copyright 2008, American Bar Association.