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).