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«Investigating Jurors in the Digital Age: One Click at a Time Thaddeus Hoffmeister* I. INTRODUCTION In the eyes of many attorneys, the trier of fact, ...»

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Investigating Jurors in the Digital Age: One Click

at a Time

Thaddeus Hoffmeister*

I. INTRODUCTION

In the eyes of many attorneys, the trier of fact, not the evidence

presented, is the key factor in determining the outcome of a trial.1 Thus,

attorneys have long sought to learn as much as possible about those

deciding the fate of their clients.2 While information has been readily

available about judges who have established reputations and regularly

decide cases,3 one cannot say the same for jurors who are randomly drawn from the community to hear one case. Traditionally, attorneys had to expend significant time and resources to discover information about jurors.4 The Digital Age, however, has changed this.

Attorneys can now discover information about jurors in seconds or minutes as people place more and more personal information online.5 * Associate Professor of Law, University of Dayton School of Law; editor of www.juries.typepad.com, a blog dedicated to the study of juries. The author would like to acknowledge the excellent work of his research assistant Mike Porter on this Article. This Article also benefited from thorough editing by the staff of the Kansas Law Review. Of course, any errors or mistakes in this Article are solely the responsibility of this Author.

1. John H. Blume, Sheri Lynn Johnson & A. Brian Threlkeld, Probing “Life Qualification” Through Expanded Voir Dire, 29 HOFSTRA L. REV. 1209, 1209 (2001) (“The conventional wisdom is that most trials are won or lost in jury selection.”); Steven C. Serio, Comment, A Process Right Due? Examining Whether a Capital Defendant Has a Due Process Right to a Jury Selection Expert, 53 AM. U. L. REV. 1143, 1147 (2004) (“Many scholars believe that most capital cases are won or lost during jury selection.”).

2. See infra Part II.A.

3. See Bracy v. Gramley, 81 F.3d 684, 688 (7th Cir. 1996), rev’d Bracy v. Gramley, 520 U.S.

899 (1997), and vacated sub nom. Collins v. Welborn, 520 U.S. 1272 (1997) (“There are prosecution-minded judges, and defense-minded judges....”); see also History of the Federal Judiciary, FED. JUD. CENTER, http://www.fjc.gov/history/home.nsf/page/judges.html (last visited Nov. 22, 2011) (providing biographical information on all federal judges). Many states have similar websites. See, e.g., Judicial Directory, N.Y. ST. UNIFIED CT. SYS., http://www.nycourts.gov/ judges/directory.shtml (last visited Jan. 24, 2012).

4. See infra text accompanying notes 51–59.

5. See, e.g., Johnson v. McCullough, 306 S.W.3d 551, 558–59 (Mo. 2010) (en banc) (per curiam) (discussing the ease by which information about jurors may be discovered in light of technological advances); see also Stephen P. Laitinen & Hilary J. Loynes, A New “Must Use” Tool HOFFMEISTER FINAL 4/19/2012 2:13 PM 612

–  –  –

The speed and ease by which information about jurors is now discovered online has led attorneys to increasingly investigate and research jurors.6 In fact, the practice has become fairly commonplace, with courts,7 practitioners,8 and state bar associations9 all approving and encouraging its use. One prominent trial consultant has even claimed that “[a]nyone who [does not] make use of [Internet searches] is bordering on malpractice.”10 While this may somewhat overstate the importance of investigating jurors online, it demonstrates just how routine the practice has become in certain areas of the country.11 Like with other aspects of litigation, the online investigation of jurors raises a few concerns.12 Some view the practice as overly intrusive because it allows attorneys to learn things about jurors that would rarely, if ever, come up or be discussed during voir dire.13 For example, judges generally prohibit attorneys from questioning a potential juror during In Litigation?, FOR THE DEF., Aug. 2010, at 16, 16 (“People are putting more and more personal information on the Internet. In the United States, no less than 35 percent of adult Internet users and 66 percent of Internet users under the age of 30 have a profile on a social networking site.”).

6. See Lior Jacob Strahilevitz, Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 NW. U. L. REV. 1667, 1688–94 (2008) (discussing the market that has arisen for jury consultants and the effect technology has had on the voir dire process).

7. See McCullough, 306 S.W.3d at 558–59 (holding that courts should allow parties reasonable time to research prospective jurors); Carino v. Muenzen, No. L-0028-07, 2010 WL 3448071, at *9–10 (N.J. Super. Ct. App. Div. Aug. 30, 2010) (per curiam) (discussing approvingly the use of the Internet by attorneys to gather information about prospective jurors during voir dire), cert. denied, 13 A.3d 363 (N.J. 2011) (table decision).

8. See Julie Kay, Social Networking Sites Help Vet Jurors, LAW TECH. NEWS (ONLINE), Aug.

13, 2008, available at http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202423 725315&slreturn=1 (discussing the views of attorneys on the use of the Internet to investigate prospective jurors); Jack Zemlicka, Social Distortion, WIS. L.J. (May 10, 2010), http://wislawjournal.com/2010/05/10/social-distortion/ (“Since the explosion of social networking, [one Wisconsin attorney] regularly researches jurors and monitors their online activity during lengthy trials. [As this attorney explained,] ‘It’s not unusual for someone in my office to run the name of a juror, if we get them ahead of time, through Google, Twitter or Facebook.’”).





9. See NYCLA Comm. on Prof’l Ethics, Formal Op. 743 (2011) (discussing a lawyer’s investigation of jurors’ Internet and social networking postings during the course of a trial).

10. Carol J. Williams, Jury Duty? May Want to Edit Online Profile, L.A. TIMES, Sept. 29, 2008, at A6 (third alteration in original) (internal quotation marks omitted).

11. Some trial consultants offer “personality profiling” of jurors based on Internet research.

Julie Kay, Vetting Jurors Via MySpace, NAT’L L.J., Aug. 11, 2008, at 1.

12. See Jamila A. Johnson, Voir Dire: To Google or Not to Google, 5 GPSOLO LAW TRENDS & NEWS: LITIG. (2008), available at http://www.americanbar.org/newsletter/publications/law_trends_ news_practice_area_e_newsletter_home/litigation_johnson.html (describing how researching jurors online could rise to the level of jury tampering or improper influence if an attorney is not careful).

13. See NANCY S. MARDER, THE JURY PROCESS 82–83 (2005) (“For example, lawyers have sometimes wanted to ask prospective jurors about their religion or sexual orientation during voir dire, but judges have usually denied such inquiries on the ground that it is an intrusion into the juror’s privacy and not necessary for the parties to know.”).

HOFFMEISTER FINAL 4/19/2012 2:13 PM 2012] INVESTIGATING JURORS IN THE DIGITAL AGE 613 voir dire about her political ideology or voting history.14 By going online, however, the attorney may discover a juror’s past political contributions or current political affiliations.15 In addition to privacy concerns, questions arise surrounding full disclosure. Some believe that an attorney—depending on his interest in the dispute—may withhold certain disqualifying juror information from the court or opposing counsel.16 Consider a recent example from Michigan.17 Before the second day of a two-day criminal trial, a sitting juror posted the following on her Facebook account: “[A]ctually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re GUILTY.”18 The defense discovered this posting prior to the start of the second day of trial and the court promptly dismissed the juror.19 One may easily envision a different outcome had the prosecutor discovered the information. A different defense attorney also might have taken an alternative approach to resolving this problem. Rather than report the misconduct to the judge and request dismissal of the juror, the defense attorney might have approached the prosecutor about a mid-trial plea deal20 or used the information to revamp her trial strategy. As this Article will explain, most attorneys do not have a legal or ethical obligation to turn over information about jurors.21 In addition, juror information is generally outside the scope of discovery.22

14. See, e.g., Connors v. United States, 158 U.S. 408, 411–15 (1895) (describing questions related to political affiliation and stating they were properly excluded during voir dire).

15. Several mainstream websites offer information about campaign contributions. See, e.g., Campaign Donors: Fundrace 2012, HUFFINGTON POST, http://fundrace.huffingtonpost.com (last visited Nov. 4, 2011) (providing an interactive map that allows users to search by a person’s name or location for campaign contributions).

16. Correy Stephenson, Should Lawyers Monitor Jurors Online?, LEGALNEWS.COM (Dec. 27, 2010), http://www.legalnews.com/macomb/1004089 (noting that one attorney “expressed concern that some attorneys might fail to disclose information they learn about a juror—keeping it in ‘their back pocket’ in case of an unfavorable verdict—and then use the information to seek a new trial”).

17. Jameson Cook, Facebook Post Is Trouble for Juror, MACOMB DAILY, Aug. 28, 2010, http://www.macombdaily.com/articles/2010/08/28/news/doc4c79c743c66e8112001724.txt.

18. Id. (errors in original).

19. Id.

20. Mid-trial pleas or pleas right after jury empanelment occur in some instances. See, e.g., Barry Leibowitz, Muslim Convert Admits He Murdered U.S. Soldier, Plea Avoids Death Penalty, CBS NEWS (July 25, 2011, 5:52 PM), http://www.cbsnews.com/8301-504083_162-20083191html (“Abdulhakim Muhammad pleaded guilty in the middle of his trial to capital murder and attempted capital murder charges.”).

21. See infra Part IV.B (discussing attorneys’ obligation to disclose disqualifying juror information).

22. See infra notes 253–55 and accompanying text (noting the narrowness discovery of juror information).

HOFFMEISTER FINAL 4/19/2012 2:13 PM

614 KANSAS LAW REVIEW [Vol. 60

The abovementioned example also illustrates that online juror investigations—unlike traditional investigations—now occur at various stages of trial. Further, attorneys today engage in the practice for reasons beyond just jury selection23 or identification of biased or unfavorable jurors.24 Some attorneys use the practice in an effort to create a bond with the jurors. For instance, an attorney who discovers through her online investigation that a juror closely follows sports might incorporate athletic references or metaphors in the courtroom to better connect with that juror. 25 Other attorneys, who find themselves on the losing side at the end of trial, use the practice to look for appealable issues.26 For example, an attorney might search a juror’s blog or social networking site hoping to discover an inappropriate remark or comment made to or by the juror during trial.27 While much has been written about obtaining juror information through in-court voir dire,28 little has been offered about out-of-court methods like juror investigations. The legal academy has virtually ignored the topic of juror investigations. This author is aware of only one major academic work solely dedicated to this area of law in the past forty years.29 One may attribute this dearth of scholarship, at least in

23. This Article uses the term “jury selection.” It should really be called “jury de-selection” because neither party has an affirmative right to empanel certain jurors. For a discussion on the theory of affirmative jury selection, see generally Deborah Ramirez, Affirmative Jury Selection: A Proposal to Advance Both the Deliberative Ideal and Jury Diversity, 1998 U. CHI. LEGAL F. 161.

24. See Kay, supra note 8 (“Some jury consultants and lawyers, however, still want to research their juries even after jury selection, for different reasons. For one thing, the information can be used to get a case overturned on appeal if it turns out a juror lied on a questionnaire. Additionally, some consultants and lawyers are beginning to use Internet information [they have] obtained about jurors to influence them during the trial, particularly during closing arguments.”).

25. See id. (noting that a lawyer might analogize to a juror’s affiliations or interests to gain sympathy).

26. Id.

27. See infra notes 129–38 and accompanying text (citing examples of juror misconduct through blog posts).

28. See, e.g., Thomas J. Hurney Jr. & Randal H. Sellers, Picking Juries: Questionnaires and Beyond, 75 DEF. COUNS. J. 370, 370–71 (2008) (discussing the use of questionnaires during in-court voir dire); Mary R. Rose & Shari Seidman Diamond, Judging Bias: Juror Confidence and Judicial Rulings on Challenges for Cause, 42 LAW & SOC’Y REV. 513, 515–17 (2008) (discussing jurors’ self-assessments of fairness during voir dire).

29. Joshua Okun, Investigation of Jurors By Counsel: Its Impact on the Decisional Process, 56 GEO. L.J. 839, 840 (1968). The issue, however, has received attention in material targeting practitioners. See, e.g., EUSTACE CULLINAN & HERBERT W. CLARK, PREPARATION FOR TRIAL OF CIVIL ACTIONS 78–82 (3d ed. 1956) (advocating the use and legality of juror investigations); Jeffrey T. Frederick, You, the Jury, and the Internet, 39 BRIEF, Winter 2010, at 12, 16–18 (“The Internet is also a source for information on potential jurors for jury-selection purposes.”); Clarence W. Heyl, Selection of the Jury, 40 ILL. B.J. 328, 333 (1952) (describing methods of juror investigation); 5 AM.

HOFFMEISTER FINAL 4/19/2012 2:13 PM 2012] INVESTIGATING JURORS IN THE DIGITAL AGE 615 some part, to the fact that over the past decades the practice of investigating jurors has occurred less frequently.30 The Digital Age, however, has reversed this trend. The Internet has resurrected the practice of investigating jurors.31 Thus, there is a growing need for more research and study on this topic to better understand its impact on the legal system and society as a whole. This Article attempts to fill the current void by taking an in-depth look at online juror investigations.



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