POKE THE JURY? ABA “LIKES” ONLINE SURFING OF POTENTIAL JURORS
By: Michael M. Rohde
Trial attorneys will tell you that a favorable jury can make or break a case. Because every juror walks into a courtroom with their own story, jury consultants are paid handsomely to identify characteristics of the ideal juror demographics prior to any given trial. Before the internet was filled with tweets, pokes, and likes, potential jurors were anonymous when they entered the courtroom. Now, a trove of unique juror information is available for any litigant with a smartphone, two thumbs and a signal.
The American Bar Association recently released a formal opinion stating that searching for and viewing potential jurors’ online profiles is completely ethical. As long as the information is available to the public and no communication is exchanged with the juror, the ABA says click away. However, the opinion clarifies that requesting access to private information by requesting a “friendship” or following the juror is considered unethical.
Attorneys can request dismissal if biases or prejudices are uncovered. Therefore, knowing a juror’s political beliefs or past affiliations can weigh heavily on whether that juror is favorable to your client.
The information shared in status updates and tweets has obviously proven to be valuable in ways spanning multiple disciplines. For lawyers, the ways are still growing. Not only can favorable beliefs and views be uncovered, it allows an experienced trial attorney to play the room by tailoring arguments, questioning and analogies pleasing to the audience.
While the results of the ABA’s two-year review formalizes what attorneys have done for years, the practical implications remain cloudy. Because the mantra, “if it’s on the internet it must be true” might not always be the case, trolling for online information is a proceed-with-caution proposition. Consider this: A potential juror has an active Twitter account, and this juror’s tweets seemingly represent a parallel interest to your client, whatever the interest may be. Slam dunk, right? Perhaps the tweets are filled with sarcasm, and the juror is really favorable to the other side. What’s more, the account might belong to an entirely different person who just happens to share the same name.
Even with potential traps or false fronts, the advantages of searching for a juror’s online footprint outweigh the negatives. However, it seems as though this information should be supplementary to the tried and true practices of the experienced attorney’s voir dire questioning, and of course, gut instinct.
Attorneys are notorious for reticence to technological advances, but clearly it behooves us to familiarize ourselves with the dynamics of America’s favorite social media sites. After all, knowing the smallest nugget could hold the key to a favorable verdict. Considering the wealth of data available, it begs the question why the advantages to using social media for jury selection weren’t discovered earlier.