Recently, the
legal community has been abuzz with talk about how the Internet, specifically
Google and social media, has entered the courtroom. Sometimes this invasion
proves hurtful to the trial process, particularly if the “researcher” is a
potential juror looking for background information on the defendant and the
case that is being heard. True, juror misconduct is a dangerous and costly
consequence of curiosity and disregard toward the instructions given by the
court. But bad jurors are not the only ones researching during trial.
A new report to the Judicial Conference Committee on Court Administration and Case Management discusses not only jurors’ use of social media, but attorneys’ use
as well. The report surveyed all active and senior federal district judges,
half of whom responded to the survey. Surprisingly, the report seems to
indicate that a large number of attorneys actually have unbridled access to and
use of Internet research during voir dire, especially social media such as
Facebook and Twitter, that is regularly used to weed out possible biases that
would not have been normally revealed by the jury venire during voir dire
discussions. The report also reveals that more than 70 percent of judges who
responded to the survey do not know if this sort of activity is happening in
their courtroom, they are more concerned about juror misconduct than attorneys’
research activity, and nearly 70 percent do not even attempt to address the
issue with the attorneys if they see it happening. Only about 31 percent of
judges do address the issue in their courtroom and either expressly permit the
research (4.9 percent) or expressly forbid it (25.8 percent).
The fact
that the majority of responding federal district courts apparently give no
guidance to attorneys for the appropriate level of Internet usage, specifically
in order to research potential jurors, the extreme scenario of Gene Hackman’s
team in “Runaway Jury” comes to mind, in which an entire research team may
attempt to dive into every aspect of every potential juror’s online lives. Sure,
that situation is somewhat of a dramatic fantasy concoction created by
Hollywood. But with the ABA releasing opinions to the tune of “a lawyer is
ethically permitted to review a juror’s social networking presence, provided
that no contact is made with the juror,” as John G. Browning puts it, how can
jurors feel protected in their right to privacy if they know that every aspect
of their lives is probably being scrutinized by the prosecution/plaintiff and
defense/respondent? Is there a limit to where and how far attorneys can dig
into the lives of jurors, so long as they are never detected? Isn’t there a
danger that potential jurors will become biased toward one side or another if
they feel like they are being cross-examined and tried for their “online
crimes”?
The sheer
lack of regulation in this new area of the law should make anyone a little
paranoid. This, combined with the possibility that courts may soon seek to confiscate
or monitor cell phone activity of jurors during trial, as suggested by Robert Lindsey, honestly makes me worried that jury duty is soon to become jury oppression.
This post was inspired by Samson Habte’s article “Federal
Survey Indicates Most Judges Aren’t Policing Attorneys’ Social Media Use at
Trial” available here. The full text of Meghan Dunn’s report “Jurors’ and
Attorneys’ Use of Social Media During Voir Dire, Trials, and Deliberations” is
available here. See also “Facing Up to Facebook—Ethical Issues With Lawyers’
Use of Social Media” by John G. Browning (here) and “Jurors as Digital Detectives: A
Possible Solution” by Robert Lindsey (here).
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