By Dr. Ken Broda Bahm:
The internet age has brought new tools but also new concerns to the task of jury selection. The ubiquity of social media and other forms of online presence has meant that lawyers, trial consultants, and other specialists now can and frequently do consider that information when selecting a jury. But that “voir Google” ability has given rise to an increasing feeling that there is something sneaky or wrong in tapping that source of information. The current Oracle v. Google copyright case has served as a focal point for that concern, and it received a good write-up in a short article in Corporate Counsel entitled, “One Judge is Banning Web Research on Jurors, Will Others Follow?” The judge in that case, William Alsup of USDC California, wrote that, “There are good reasons to restrict, if not forbid, [internet] searches by counsel, their jury consultants, investigators, and clients,” and followed up by pushing the parties to an agreement to foreswear such searches. That case could be unique, considering that it involves two internet giants who might be presumed to have more access to information than the average party. But then again, it might not be unique since the judge used a rationale that could apply to any case. In the Corporate Counsel article, the author reports on a Federal Judicial Center survey in which 120 judges, 26 percent of the sample, reported already prohibiting social media research of potential jurors. Several quoted in the article also suggest it could be a trend. Jury consultant David Barnard, for example, predicts that “We’re going to start seeing more opinions on this issue.”
If wiser voices prevail, those opinions should follow the lead of the American Bar Association’s Formal Opinion 466 clarifying that lawyers and those working with them should obtain and use public information in good conscience, but should not breach any walls in order to get at any information a potential juror would reasonably consider private. The privacy of jurors and venire members matters, but the concept of privacy should not be broadened to the point that it includes information that is clearly in the public domain. In this post, I’ll make the argument that, while important, juror privacy shouldn’t require anything like Judge Alsup’s broad prohibition of internet searches on potential jurors, and that the better course is to recognize and enforce the principle that private information is private, but public information is public.
Juror Privacy Matters
In his ruling, Judge Alsup wrote that jurors are “good citizens commuting from all over our district, willing to serve our country” and that “their privacy matters.” And that is absolutely true. Answering the call for jury duty doesn’t mean that citizens should consent to any form of abuse or intrusion. Disrespect could further a loss of faith in an already imperiled civil jury system.
But “Privacy” Is Based on What’s Private
Privacy law is based on the principle that what we consider private doesn’t extend to all information about a person, but only to those realms where the individual would have a “reasonable expectation of privacy.” That means that citizens must have a basis for thinking their information is private, and that basis must be a rational one. Whether that applies to a given individual’s social media activity depends on how that individual uses the internet and social media. For many, perhaps most, a good part of that information is public, and no firewall or login shields it from anyone who knows how to Google.
Public Information Should be Fair Game
Imagine this. A trial team arrives for trial knowing that one member of the venire is the editor of the local newspaper, and today’s edition carries an editorial directly bearing on issues relating to the trial. Would any reasonable judge — or any other reasonable person — expect the trial team to avoid every newsstand on the way to the courthouse in order to avoid knowledge of what that venire member is publishing? No, I think most would consider it malpractice for the trial team to not buy a paper and read the editorial. Now, we don’t live in an age where most potential jurors are writing editorials. But we do live in an age where many to most potential jurors are publishing content that is similarly public and similarly available. You might say the analogy is strained because social media isn’t news, but that is changing as social media is well on the way to becoming the public’s main source of news.
Treating Public Information as Private Improperly Restricts Voir Dire
Now, at this stage, readers might think, “Okay, a lot of people are making their personal information public these days, but it really should be private.” But that is an individual choice. When we are talking about potential jurors, we are talking about adults, so the person in the best position to decide if an individual venire member’s online information should be public or private is the individual venire member.
Judge Alsup also emphasized a basic reciprocity agreement. “We will go to some lengths to exhort the jury not to conduct internet searches about the case or the lawyers,” he points out, and “It will be hard for [jurors] to understand why the lawyers can do to them what the jury cannot do to the lawyers (and the case).” But that comparison ignores a critical difference in roles. The jury’s job is to decide the case based only on what is admissible, so their instructions not to research keeps them focused on the only information that is relevant at trial. The attorneys, on the other hand, have the job of deciding based on any and all available information which venire members would carry a potential bias in the case.
There is also concern from Judge Alsup over how that information could be used, beyond the discovery of possible bias. “If a search found that a juror’s favorite book is ‘To Kill a Mockingbird,'” he wrote, an attorney could make use of that information “in an effort to ingratiate himself or herself into the heartstrings of that juror.” But, of course, counsel could do the same if that potential juror simply walked into court carrying a copy of ‘To Kill a Mockingbird,” and who would require any Atticus Finch-loving lawyer to just ignore that information? Ultimately, it is hard to see this kind of audience adaptation as posing any kind of real threat to our system, depending as it does on the persuasion of real people.
In the Oracle v. Google case, Judge Alsup did not strictly prohibit parties from conducting web searches on juries. Instead, he gave the parties the choice to either jointly agree to avoid these searches, or to risk their credibility by informing the jurors of the fact that they had conducted these searches. They took the former in exchange for increased oral voir dire time. That extended oral voir dire time is useful, but at the same time, knowing what they say in court really cannot substitute for knowing what they say out of court. Knowing the judge’s agenda, it seems like the parties intelligently decided to cut their losses. If decisions like this gain any momentum in the future, however, I for one am hoping that more parties opt to fight for the right to access the public information that can and should inform jury selection.
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Other Posts on Social Media and Selection:
- Play it Safe with Clear Instructions (Especially on Juror Social Media Use)
- Cover Your Tracks (When Sneaking a Peek at Your Jurors’ Social Media)
- Vet Your Public Persona
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Image credit: 123rf.com, used under license