Mere days after his conviction for sexual assault and rape, Harvey Weinstein’s appeal is well under way. One focus of the appeal at this stage appears to be Juror 11, Amanda Brainerd, a novelist writing a book that the defense claims prompted her to lie to the court to remain on the jury, and convict Weinstein, all in the hopes of boosting her book’s sales – and thereby introducing to the jury a juror that would never vote “not guilty” on all counts. Interestingly, the defense claims that the judge at one point in the trial told the parties that he would dismiss Brainerd, but changed his mind after questioning her.
The appeal highlights the controversial yet commonplace practice of investigating jurors outside of voir dire. Weinstein hired both jury consultants and a private detective agency to investigate potential jurors online, looking for any evidence of potential bias – everything from attending women’s marches to merely liking #MeToo posts on social media. Pretty much anything public is fair game in the pre-voir dire search for juror bias, and can help attorneys identify jurors who lie to remain in the jury pool, but this hasn’t always been the rule: originally, common law assumed that the oath jurors take was enough to ensure impartiality – a stance still taken in part, it seems, by the judge in Weinstein’s case, who told the defense, “I accept her answers under oath in the courtroom." That law quickly evolved in the United States to permit a voir dire process that elicited evidence of bias, and permitted attorneys to strike jurors for cause based on that evidence.
Before the internet, however, much of what attorneys learned about a juror’s background and biases had to be discovered in the voir dire questioning process, though some private pretrial investigation of jurors was happening at least as far back as the late 1960s, and the government was using the FBI, IRS, and local police departments to investigate potential jurors as far back as 1949. In that sense, the investigation into potential jurors’ public lives is nothing new; however, social media is a new beast. People behave differently online than they do in their real lives, bolstered by feelings of anonymity, and so reveal more to lawyers and investigators than they did before the advent of social media, and about more subjects than a judge would permit questioning on in voir dire, including voting history and political preference.
Some attempts have been made to limit these investigations: attorneys cannot “friend” or “follow” jurors on social media, and they may not let jurors know they’re being investigated. But the same rules that limit attorneys’ investigations may lead jurors into a false sense of security about their place in the justice system: many people would find it uncomfortable to know that, before they ever set foot in the courthouse, attorneys on both sides of the courtroom had been investigating them just as diligently as they have investigating their cases, and all without the jurors ever knowing that they were the subject of such an investigation, or even being made aware of the potential for an investigation. One scholar suggests warning potential jurors that they may be the subject of such an investigation as part of jury selection, therefore giving them the chance to adjust their privacy settings accordingly.
Of course, giving jurors this opportunity also may limit what attorneys are able discover during their pretrial investigations, which have on occasion highlighted legitimate reasons to strike a juror for cause, and which in the Weinstein case forms the foundation of the defense’s appeal. If legislatures and courts limit pretrial investigations in this way, it naturally leads to the question of whether they should, at the same time, expand the voir dire process, which trades an unknown invasion of jurors’ privacy for a semi-public inquisition about their biases and backgrounds in the courtroom, which may come with juror discomfort all its own.
For Harvey Weinstein, however, investigation into the jury has not stopped at voir dire, and one jury consultant unrelated to the case has noted that the jurors’ statements after the trial may bring to light bias and misconduct that will provide additional reasons to question the jury’s impartiality: until the appeal is ruled on, the Weinstein jurors’ social media will likely be monitored closely by both sides, whether they know it or not.
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