ATLANTA, Feb 17 (Reuters Legal) - When picking a jury, lawyers always try to stack the panel with people likely to take their side. Now, some are taking the vetting process to a new level: they’re quietly trawling social networks and other sites to ferret out the most intimate details of potential jurors’ lives, from their sexual orientation to their income level and politics.
In essence, the traditional question-and-answer session known as “voir dire” is being transformed into “voir Google,” sparking concerns about privacy and about whether courts are adequately supervising the process.
Often hidden from judicial scrutiny and unknown to the jurors’ themselves, lawyers conduct extensive online searches about dozens of members of a prospective pool and compile them into elaborate spreadsheets. Some of this plays out in courtrooms in real time, as lawyers and jury consultants, armed with laptops and smart-phones, seek clues about whether a would-be juror would side with a homeowner in a product-liability case, say, or with a cop in a police-brutality suit.
“Jurors are like icebergs — only 10 percent of them is what you see in court,” said Dallas-based jury consultant Jason Bloom. “But you go online and sometimes you can see the rest of the juror iceberg that’s below the water line.”
In Columbia, Missouri, criminal-defense attorney Jennifer Bukowsky builds Excel spreadsheets about prospective jurors using Facebook, MySpace, Google Inc and a state database of civil and criminal actions called Case.net. During a trial in Circuit Court for Boone County, Missouri, late last year in which her client, a black male, was charged with sexual assault, Bukowsky hoped to keep a white female juror on the panel because the woman’s Facebook page included several pictures of her with a black man — which Bukowsky took as a sign the woman was not racist. “Internet research affected our decision with respect to whether to keep or strike a juror,” Bukowsky said. The prosecution struck the woman from the jury pool, and the trial ended in a hung jury.
Trial consultant Jill Huntley Taylor said that during a product-liability case last year in which her client was representing the defendant, she discovered through online vetting that a juror had posted on Facebook that one of her heroes was Erin Brockovich, the crusading paralegal known for her work for plaintiffs in environmental cases. Taylor, of Dispute Dynamics in Philadelphia, declined to disclose more details about the case, but said her research helped attorneys in the case decide to remove the juror from the panel.
The purpose of voir dire — derived from an Anglo-Norman phrase meaning “to speak the truth” — is to help ensure a fair and impartial tribunal. But the process has its limits. Jury questionnaires, which are typically distributed to the lawyers in most jurisdictions at the onset of jury selection, often contain only superficial information, such as name, age, and marital status. Moreover, there are restrictions on the questions attorneys can ask prospective jurors, reflecting in part a growing concern within the courts over protecting jurors’ privacy. Some courts do not allow lawyers to ask about a prospective juror’s political affiliations, for example. Online vetting, therefore, can serve as a way to bypass court-imposed restrictions on voir dire.
To be sure, lawyers, not to mention an entire industry of jury consultants, have long tried to devise psychological profiles of jurors in order to gain an edge — using private investigators to scan public records or to drive by jurors’ homes to see how affluent they may be. But in an era in which people are revealing their unvarnished selves on Facebook and other sites, online vetting can serve as an invaluable reality check on jurors who may not be completely forthcoming during voir dire.