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.