By: Dr. Ken Broda-Bahm -
Attorneys engaged in the process of jury selection have always been eager to uncover as much information as the judge allows through questionnaires and oral examination in court. For that reason, it isn't surprising to most potential jurors that the lawyers are trying to get a sense of any strongly held opinions or experiences that may bear on their case. But it is apparently more surprising that lawyers are now relying on a wealth of online information to supplement that picture. I recently spoke with Nina Sparano on Fox 31 in Denver about the perceptions surrounding this practice. The gist of the comments from me and attorney Bill Taylor are that the practice of locating online information for jurors is common, and the result can help inform jury selection. But the hook the station chose for the story is telling: "Jury duty just got more intrusive." There are two challenges with this statement. One, it shouldn't be considered intrusive to make use of publicly available information (it shouldn't be, but according to some recent research, it is -- more on that below). Two, lawyers and litigation consultants haven't just stumbled on this technique, but have been using it for as long as it has been possible to Google.
What is new, however, is the prevalence of information on the web. It used to be that, out of a list of fifty potential jurors, maybe a few would have any identifiable presence on the web. Now, with more than 350 million users on Facebook alone, you are likely to find information on a majority of the venire. And this enhanced ability has run into a direct conflict with users' sometimes unrealistic expectations of privacy on-line. When parents look in on a child's Facebook account, or a potential employer checks in on an applicant's on-line persona, the target of that scrutiny can react with surprise and a feeling of violated privacy, even when the information is public. The expressed attitudes over the use of on-line information in jury selection is just the latest example. Recent news stories from Reuters, Forbes, and the Wall Street Journal all share the same focus that 1) such investigations are new, 2) can be helpful, but 3) are controversial and potentially intrusive.
In part, this concern could be driven by some unrealistic expectations about privacy. According to survey research on social media users, there is a tendency to see on-line information as more "private" than it actually is, and this has implications for the ways that attorneys and consultants should go about investigating their potential jurors. A frequently cited study (Acquisti & Gross, 2006), for example, noted that while concern for online privacy is high -- even higher than concern over terrorism -- there is no significant relationship between individual’s privacy attitudes (how protective they believed themselves to be) and their likelihood of sharing personal information on-line. Majorities reported providing “complete and accurate” information about their birthday, their political views, and their sexual orientation, among other things. A quarter misunderstood their visibility settings, and more than half under-estimated the number of people who could view their profile. A more recent ethnographic study (Raynes-Goldie, 2010), reported that the number of careful behaviors that members took in order to protect their own privacy was offset by knowledge of strategies to invade the privacy of others. For example, the study reports on ways that ‘friends of friends’ can gain access to various parts of a restricted profile through loopholes that are more or less well known in the Facebook community. As one study participant noted, “Facebook makes things that should just have happened in passing, totally permanent and public. It’s like the ultimate Air Miles card — it doesn’t just track what and where and when you buy things. It tracks everything.”
My own position on whether attorneys and consultants should be using this information is clear: yes they should, as long as they are truly looking at public information, and not using loopholes to get past privacy walls. An attorney has a professional responsibility to give their clients the best representation possible, and that includes paying attention to anything that might indicate possible bias on the part of someone who may sit on the jury. Why would an attorney not want to make use of publicly available information? In contrast to what is often available to marketers who partner with sites like Facebook (e.g., on-line activity, web sites visited, products purchased, etc.), the attorney or consultant looking for information will generally only have access to on-line zones that the individual chooses to make public. In many ways, in-court questioning is more intrusive because it asks jurors to respond, under oath, regarding many attitudes and experiences that are presumably not public. In that regard, reading what is on the public "wall" of a potential juror's Facebook page differs little from reading a "Letter to the Editor" that a prospective juror has sent in to a newspaper. It is public, and the only way to tell if it could be relevant to the case at hand is by reading it.
That said, the perception of intrusion is real, and I am not at all suggesting that we simply accept the risks. Instead, I believe that there is a middle way: a way to responsibly gather information that is public, without intruding on the private sphere or risking improper contact with potential jurors.
Properly done, the service is called a 'Social Media Analysis,' and it is offered by many groups (full disclosure: we are one of those groups). It amounts to a study of public records (using sites such as KnowX) as well as available social media (Google, Twitter, Facebook, etc.) to identify the evident experiences, attitudes, and beliefs of potential jurors. Based on this research, attorneys receive advice on any potential concerns with prospective jurors. When a jury is seated, a company can also monitor any active social networkers known to be on the jury, to make sure they aren’t blogging about the trial, for example, and risking a mistrial.
All means of gathering information on potential jurors, however, are best approached with care, and there are better and worse ways of conducting a social media analysis. Here is my list of "Do's and Don'ts" for attorneys and consultants who are looking in on their venire's on-line lives:
This is what I consider responsible social media analysis:
- Run juror names through a public records database. Most of the information you retrieve will not be especially important, but occasionally you will be surprised. In one of our cases, for example, we found that an attorney who had been disbarred in two states for defrauding clients (but who said in voir dire that he had "never been involved in a legal proceeding") was potentially sitting in a trial...for a fraud case.
- Run jurors' names through the common search engines as well as those sites which are currently vogue (e.g., Facebook and Twitter).
- Include common variants of juror names, as well as identifying information like hometown and age.
- Remember there is no substitute for case-relevant questioning in either oral voir dire, a supplemental juror questionnaire or a combination. On-line investigations can give you a good picture of your juror, but you won't see the full set of attitudes and experiences that bear directly on the issues in your case.
- Don't believe everything you read. Something isn't more "true" because it is on the internet, and we all know that there is a certain level of posturing (or social desirability bias) present in on-line writing.
And this is what I consider over the line:
- Don't violate the intent of privacy settings. If a writer makes it public, it is public. If, on the other hand, the writer intends to make it visible to registered members or to those who are "friended," then it is private. Even if there is a technical way to view the data, don't do it.
- Don't 'friend' potential jurors. This seems obvious. However, the Wall Street Journal reported that a Cameron County, Texas District Attorney has supplied iPads to his prosecutors for use during voir dire (not necessarily a bad idea) and is considering ways to get behind potential jurors' privacy walls in Facebook by offering them free internet in exchange for "friending" his office (definitely a bad idea). I imagine that defense attorneys are a little disturbed at the notion of their entire panel being asked to "friend" the prosecutor. Even without the enticement of free internet access, any access request is a form of contact, and a party's contact with potential jurors is prohibited for a good reason.
- Don't make an enemy of the judge. Whether you or I can defend the practice is one thing, and whether your judge approves of it is another. As one New Jersey attorney found out, it isn't a good idea to sit in court Googling jurors if the judge finds that practice disturbing. While an appeals court ultimately ruled in favor of the attorney, the best practice is to know and follow the judge's preferences. When a venire list is available in advance, you should conduct your searches from the safety of your own office.
While the practice of social media analysis is not new, we can expect it to fall under greater scrutiny. The American Society of Trial Consultants has adopted professional standards relating to background checks on potential jurors, which basically track what I'm suggesting above: go ahead and gain the relevant information, but respect potential jurors, be honest, and follow the law. Not so hard when you break it down.
Kate Raynes-Goldie (2010). Aliases, Creeping, and Wall-Cleaning: Understanding Privacy in the Age of Facebook First Monday, 15 (1)
Image (Screen shot) Credit: Codemastersnake, Flickr Creative Commons