How Social Media can be Used as a Tool to Learn More About Jurors

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            You might not be able to make 500 million friends without making a few enemies along the way,[1] but you can learn a lot about all your friends and enemies from what they post on their Facebook or Twitter page. So, what can lawyers learn about jurors through social media, and what problems might arise from using social media sites to learn more about jurors and potential jurors?

At first, using social media data can be a daunting task to learn more about jurors – and even more so when it comes to potential jurors in preparation for voir dire.[2] Extensive data is compiled across different sites, and it can be simply inefficient to sift through it in certain circumstances.[3] For instance, if names of veniremembers are only given shortly before voir dire begins, too much time would be spent just trying to verify that the social media account was the correct one to even begin learning anything from it.  But there can still be a lot to gain from social media, even as a simple jumping-off point, in both jury selection and insight on the selected jury.

Jury Selection

People love to post on social media about everything from their thoughts on national issues to the best Thanksgiving recipes. While some of this information might not be useful, a lot can give attorneys more insight on who they might be selecting to be on the jury panel. Of course, during the jury selection process, voir dire, there might not be much time to dig through posts on specific topics.[4] But even still, things like a person’s relationship status, job, religion, political leanings, and education may all still be listed on a person’s Facebook profile page.

Another aspect of social media that can give attorneys quick insight into potential jurors during, or in preparation for, voir dire is the jurors' interactions on the social media site with others and other posts.[5] Twitter, for instance, allows other users to see the posts a public profile has ‘liked.’ Facebook’s post interaction is more robust and may potentially offer more insight than Twitter’s simple ‘like’ feature because Facebook allows for potential jurors to not only like, but love, dislike, indicate sorrow, or even laughter. Interactions with posts like local news articles or opinion pieces, especially relating to the topic the trial may center on, can give attorneys a powerful glance into a potential juror’s feelings.[6] This information can create a great starting point to begin tailoring voir dire questions and gain a jump start on understanding the potential jurors a little better.[7]

Gaining Insight on the Jury

When trying to gain insight into jurors' and potential jurors’ beliefs and backgrounds, a tailored approach and filtered approach yield the best results.[8] But this often requires time and resources that aren’t available during jury selection, but those resources may be at hand once the jury is set. At that point, the data serves to guide arguments, trial strategies, and strategies on evidence presentation.

Jurors may indicate things about their interests or beliefs that can be used to craft appealing trial themes, allegories, or stories that relate to the juror’s interest to better tell your client’s story.[9] This is also an opportunity to take a juror that you believed to be apathetic or unfavorable to your side during voir dire and find something that will relate to the juror, ultimately making them now sympathetic to your case.[10]

Going past social media can also be extremely helpful post-selection.[11] Doing a broader internet search of potential jurors can give information about a person’s family status, political party registration and campaign contributions, and potential wealth valuation.[12] More information, such as information about bankruptcies, liens, civil cases in general, criminal history, professional licenses, and incorporation filings, can also be gleamed about potential jurors through online subscription databases.[13]

Ethics

            Before diving into the endless sea of the internet and social media sites, it’s important to be mindful of any ethical rules and adhere strictly to them – always erring on the side of caution. The ABA Model Rule 3.5 charges attorneys with maintaining the impartiality and decorum of the court or tribunal.[14] This includes avoiding any inappropriate communications with jurors that might be an attempt to influence them, harass them, that would be unwanted, or that would be made ex parte.[15]

            But the ABA’s stance in Formal Opinion 466 is that attorneys can access potential jurors’ and jurors’ social media accounts, but they cannot send access requests, use others to send access requests, or circumvent privacy settings.[16] This would be exactly the type of ex parte and unwanted communication that Rule 3.5 guards against.[17]

            Social media can be a fantastic tool in many facets of society, including litigation strategy and jury selection. There is a treasure trove of knowledge that we make available to the public through social media platforms as a way to connect with others that can also be extremely helpful to trial attorneys hoping to learn more about what kind of juror you might be. But social media also comes with its own privacy and ethical concerns, so always stay mindful of the professional ethical rules before using social media as a tool to gain insight into who might be comprising the jury.

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[1] Kayla Wembley The Top 10 Everything of 2010 Time (December 9, 2010) (quoting the tagline of The Social Network (2010)).

[2] Jury Analyst Social Media in Jury Selection: Good or Bad? Juryanalyst.com (January 13, 2021).

[3] Id.

[4] Id.

[5] Jeffrey T. Frederick, PhD Using Social Media News Posts in Jury Selection (and More) National Legal Research Group, Jury Research Services Division (June 12, 2019, 3:06 p.m.).

[6] Id.

[7] Id.

[8] Miles Hutton Using Internet Research to Get to Know Your Prospective Jurors JD Supra (May 13, 2021).

[9] Sonia Chopra Using the Internet and Social Media in Jury Selection Plaintiff Magazine (February 2012).

[10] Id.

[11] Hutton, Supra.

[12] Id.

[13] Id.

[14] ABA Model Rules of Pro. Conduct 3.5.

[15] Id.

[16] ABA Comm. on Ethics & Pro. Resp., Formal Op. 466 (2014).

[17] Id. 

To Shuffle or Not to Shuffle? A Critical Look at the Jury Shuffle in Texas

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As an attorney sees the jury venire that has been numbered and seated, they observe a cross-section of people in that county. They begin to ready themselves for voir dire. But Texas is nothing if it isn’t big and if it isn’t unique – which means another twist might be around the corner.  

            At this point, the opposing party invokes Texas Rule of Civil Procedure 223[1] or Texas Criminal Procedure Article 35.11[2] for criminal trials – the jury shuffle. Ordinarily, if the county follows an interchangeable jury system[3], the jurors are placed on the general panel randomly and assigned for service from the top down. But, after being assigned to a court, all the names of the assigned jurors are reshuffled in a receptacle and reordered based on the shuffle if any party demands a shuffle before voir dire examination. Only one shuffle is allowed per trial in civil trials while multiple shuffles are allowed in a criminal trial. The jury shuffle is largely unique to Texas, and it is looked at with mixed feelings inside and outside the Lone Star State.

The idea behind the shuffle is that jurors seated first in order are more likely to be placed on the jury while those at the back are not. The shuffle is intended to provide a more diverse jury by reordering the seated potential jurors in an attempt to make it more likely to have a diverse panel and not be stacked by unscrupulous officials.[4] But many opponents believe that is being used for the exact opposite reasons, to make a jury less diverse.[5]

Shuffling based on the racial makeup of the jury has been the reason for several appeals under Texas law in an attempt to apply Batson [6] to the shuffle. The Court in Miller-El v. Dretke even noted that the prosecution had a predisposition to asking for a jury shuffle when the front of the panel was comprised of mainly Black jurors.[7] But as it currently stands, Texas law is not inclined to apply Batson to jury shuffling,[8] and Federal law is only inclined to view shuffling with suspicion under the circumstances, such as improperly peremptorily striking Black panel members as in Miller-El.[9] Even if Batson were applied to jury shuffling, many of the issues surrounding jury shuffling would remain because of the difficulty in showing a Batson violation.[10]

But proponents of the jury shuffle often look at it as a tool to effectively increase the diversity of selected jury. In Yanez v. State, the defendant took this approach and requested a jury shuffle to potentially move the four Hispanic panel members, who were placed at the end of the order, forward.[11] However, the double-edged sword that is the jury shuffle seemingly cuts one way more often, and that is against a diverse.

On its face, few reasons exist that are not based on prospective jurors’ race, gender, or general appearance for requesting a jury shuffle because so little information about the jurors is known before voir dire examination.[12] While it is true that a jury shuffle could be used to increase the diversity of the jury selected, better and more effective means are available that are not as easily abused such as drawing on names from the county based on various identifications, using electronic or mechanical equipment to select potential jurors, and ensuring that the district clerks are maintaining a fair jury pool.[13]

Texans are then left with two important questions regarding the state of the jury shuffle: 1) does the jury shuffle achieve more harm than good in ensuring a diverse jury; and 2) should the jury system be set up to allow for a favorable jury or an impartial one? In its current form, the jury shuffle seems to be doing more harm than good and allowing litigates to shape juries into favorable ones instead of impartial ones, often rewarding gamesmanship instead of fairness.[14]

The answer to those two questions suggests that the jury shuffle has outlived its usefulness in its current form in Texas and should be abolished or reformed to better ensure justice and fairness in jury selection.

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[1] Tex. R. Civ. P. 223

[2] Tex. Crim. P. Art. 35.11

[3] Gov. C. §§62.016, 62.017

[4] SUPREME COURT OF TEXAS JURY TASK FORCE, FINAL REPORT 5, 55-64 (1997), http://www.courts.state.tx.us/commtask/ at 176.

[5] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 316 (2004)

[6] Batson v. Kentucky, 476 U.S. 79 (1986)

[7] Miller-El v. Dretke, 545 U.S. 231 (2005)

[8] Blanton v. Quarterman, 543 F.3d 230, 242 (5th Cir. 2008)

[9] Miller-El, 545 U.S. at 253-54.

[10] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 328 (2004)

[11] Yanez v. State, 403 S.W.2d 412 (1966)

[12] Texans for Lawsuit Reform, Recommendation for Lawsuit Reform: The Civil Jury in Texas (2007)

[13] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 320 (2004)

[14] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 325 (2004)

Skeletons in the Juror's Closet

           You are the plaintiff’s attorney in a personal injury suit.  Two years ago your client was hit by a semi-truck and it is finally time for jury selection and trial.  During voir dire, Juror Number 3 tells you that he has never been involved in a serious car accident.  Fast forward two weeks.  The jury returns a verdict in favor of the defendant, but you receive an anonymous letter from one of the jurors:
     Juror Number 3 lied to you.  During deliberations, he said “I used to be a truck driver and I’ve 
     been in these types of crashes.  It’s always the non-professional driver’s fault and they just want 
     to collect money.”

Do you think that your client, and you, received a fair trial?  If not, is there anything you can do about it?

            If your case is in federal court, it appears that the Supreme Court of the United States will answer this question soon.  According to the New York Times and SCOTUSblog, the Supreme Court heard oral argument from a factually similar case in October of this year.  When the case was before the Eighth Circuit, the plaintiff argued that jury misconduct tainted the verdict in two ways: (i) through the introduction of extraneous information and (ii) because a juror lied during voir dire.

The hurdle for the plaintiff is Federal Rule of Civil Procedure 606(b), which prohibits jurors from testifying about anything that occurred during deliberations, subject to three exceptions.  Two of the exceptions involve the introduction of extraneous information or outside influence, but the Eighth Circuit held that “Jurors’ personal experiences do not constitute extraneous information; it is unavoidable they will bring such innate experiences into the jury room.”

The Eighth Circuit is correct, but that is why you asked Juror Number 3 if he had ever been in a serious car accident.  You wanted to know what experiences each juror would be taking back into the black box, and Juror Number 3 lied to you.  So what happened to the plaintiff’s second ground for jury misconduct?  The Eighth Circuit noted that FRE 606(b) is silent on the issue and cited a current circuit split.  The Eighth Circuit adopted the Third and Tenth Circuits' approach and held that statements made during jury deliberations are not admissible to show that a juror lied during voir dire for the purposes of challenging the jury's verdict.

          What is at stake in the pending case?  There are competing interests on either side of the issue.  A traditional argument is that by limiting the amount and scope of exceptions to 606(b)’s prohibition against the admissibility of statements made during jury deliberations, we uphold the insulated nature of the jury and allow the jurors to express their true opinions, even if unpopular.  Another argument is that allowing deliberation based challenges to the verdict would result in a huge number of post-verdict challenges.  Based on reports of the questions asked by the Justices during oral argument, it appears that the Court buys into both of these pro-prohibition arguments.

          However, I find these argument unpersuasive for two reasons.  First, an exception for statements made during deliberations that directly contradict a juror’s answers during voir dire would be narrow enough that it would not greatly diminish the insulated nature of the jury and would not lead to huge amounts of post-verdict challenges.  Second, a juror expressing an unpopular opinion is already in a room with eleven (or five, etc.) other human beings.  And each of the other jurors can speak freely about the deliberations (to friends, family, media, etc.) after the trial anyway.  

            I do not think that courtrooms across the United States are full of John Cusack style runaway jurors, but I do think that there are jurors like Juror Number 3 who conceal strong biases about a case during void dire and espouse those biases during deliberations.  Why not set up a procedure to evaluate this type of jury misconduct?

A Jury of Your Peers...As Selected By The Lawyers

It's no secret that not everyone likes lawyers.  They've gained a reputation for making the legal system more complicated than it should be.  Oftentimes, lawyers are even accused of twisting the facts in cases or taking advantage of technicalities to gain a favorable outcome when that outcome may not be deserved.

Why, then, are lawyers allowed to participate in the process of voir dire?  The right to a trial by the jury of ones' peers is a key component in the American legal system.  However, if you look closer at voir dire, you will notice that the group of people that constitutes an accused's "peers" is a group that has been significantly shaped by the attorneys who have the most to gain from a favorable outcome in a case.

When a group of people arrives at the court house for jury duty, the truth is that many of them will not actually cast a vote in a trial.  The final jury will be a whittled final product that makes sure that no juror could have thoughts that may affect a ruling.  The woman who lost her son to a drunk driver will be quickly stricken by the defense attorney in a D.U.I. trial.  The husband of a police officer stands little chance to escape the striking of the plaintiff's attorney in a police brutality suit.  Other attorneys may actually decide to sacrifice a helpful juror much the way Bobby Fischer may have dangled an important chess piece.

Such maneuvers should lead an inquisitive mind to wonder whether the voir dire process is actually a beneficial one.  If the true point of a jury is to compile a group of peers, is it actually helpful to eliminate so many members of the public from participation, solely on the basis of their life experiences, or even because the lead attorney may not like them?  If a large percentage of potential jurors have had to personally deal with the effects of drunk driving, does it make more sense to eliminate them from the jury pool or to allow the jury pool to correctly represent that a significant amount of people feel negatively about drunk driving?

As much as the general public may hate the way attorneys can morph trials, the answer to the question of "is voir dire good" is likely yes.  With both sides able to banish an equal number of future voters, the results do not necessarily favor one side over the other.  Those people who may be simply too unreasonable to hear a case will not be permitted to do so.  Ultimately, voir dire allows the trial to proceed with less potential objections than an unregulated jury pool might cause.

But just remember: lawyers define much of the world we live in.  Including who constitutes your "peer."

Recent Batson Challenges in Dallas

After reading Nancy Marder’s article on Batson v. Kentucky, I wanted to see how Batson challenges play out in Dallas, Texas.  I looked up cases from the last six months from the Dallas Court of Appeals that had Batson issues to see if what she argues about courts that deal with Batson is true (on a very small, anecdotal scale).   Some of the reasons she claims Batson is ineffective is that “trial judges are reluctant to find Batson violations, and appellate courts are extremely deferential to trial courts when reviewing Batson challenges.”   The most recent case involved a Batson violation, and both trial court decisions were upheld.

Sixtos v. State (Aug. 26, 2014)

A Dallas County jury convicted the defendant-appellant of aggravated assault with a deadly weapon after she drove over her boyfriend with her car during a domestic dispute.  The defendant argued on appeal that the trial court erred in allowing the State’s Batson challenge to a defense preemptory strike. 

During voir dire, the prospective juror in question was asked about his job as an engineer who contracted with the City of Dallas to repair emergency and 911 equipment.  The defendant struck him and several other males, which caused the state to challenge the strikes of males and argue that the defense struck males to avoid men on the jury sympathizing with the male victim.  Defense counsel argued that he perceived that the juror didn’t want to be there or didn’t like defense counsel because his answers were “curt.” 

Viewing the trial court’s decision with deference and applying a clearly erroneous standard, the appellate court decided that the trial court was correct in finding that the defense’s strike of the juror violated Batson.  The appellate court overruled the issue because it found support for the trial court’s determination that the strike violated Batson because it did not appear from the record that defense counsel’s reasons for the strike applied to the juror.  His answers were not short or disrespectful, so defense counsel’s reasons became illegitimate.

Hooten v. State (June 10, 2014) 

The defendant-appellant appealed his conviction for indecent exposure to a child, and one of his issues on appeal was that the trial court erred when it denied his Batson challenge to the prosecution’s preemptory strike.  The defense argued that the strike was racially motivated because the prospective juror was an African American female and she knew a Dallas County judge.  The prosecution’s argument was that the reason for the strike was that she knew a judge and that reason is race-neutral.  The appellate court did not find that the defense proved that the trial court’s ruling was clearly erroneous by making a conclusory statement that the reason was racially motivated, so it overruled the issue. 

More Thoughts

I was surprised to find a violation in a recent case after reading Marder’s article where she stated, “[A]lmost any reason that is not explicitly about race will suffice.”  The defense’s reason in Sixtos was based on counsel’s perceptions of the juror, but the trial and appeals court analyzed the juror’s responses contrary to how defense perceived the situation.  I agree with the court’s analysis of that the juror did not seem to be “curt,” but I was not in the courtroom watching the body language and listening to the tone of the juror.  The appeals court analyzed more than I thought it would have after reading Marder’s overview of the “ineffectiveness” of judges.

Marder’s thoughts on how appellate judges are extremely deferential to the trial court’s decisions ring true in this small sample.  Both cases use the extremely deferential language, which seems nearly impossible to overcome.  In Hooten, the court was deferential for good reason:  the defense shouldn’t be able to succeed with a Batson challenge using only a conclusory statement when the prosecution gave a race-neutral reason (knowing a judge).

The False Idea of Juror Rehabilitation—Why we may be covering instead of uncovering juror bias.

“It’s ok, you just need to tell us.” “It doesn’t mean you aren’t a good juror, but maybe just not a good juror for this case.” “You’ve said you’ve suffered from the same kind of injury yourself, but would you be able to set those experiences aside and be fair and impartial in this case?” The first two statements are commonly heard from attorneys seeking to start plucking jurors out of the pool for cause, but it’s the last question, with the golden words “fair and impartial”, that are troubling jury consultants, attorneys, and this law student. When bias by a potential juror is indicated, is it really fair for judges to try to rehabilitate the juror with the “fair and impartial” question?

In a study conducted by researchers from Centre College, analysis revealed two types of practices at work.  Rehabilitation, which attempts to remedy the bias a prospective juror has exposed, looks something like “You’ve said that certain information you heard on the TV news may make it difficult for you to be completely fair. Do you think you would be able to overcome those feelings if you were seated on the jury?” The second practice researchers refer to as "pre-habilitation", involves attempting to remedy potential bias up front, by signaling a socially desirable response, and then asking a subsequent bias question. “You seem like a reasonable person. Do you think you’ll be able to keep an open mind and base your opinion solely on evidence that’s presented in court?” The study found judges are more likely to engage in rehabilitation, while attorneys work up front with "pre-habilitation" questions.

Dr. Ken Broda-Bahm in his article “Getting Beyond ‘Can You Be Fair?’: Framing Your Cause Questions” asserts that the undeniable obstacle attorneys face in voir dire examination is the human tendency to portray themselves in the best possible light. This “social desirability bias” as he refers to it can be a direct product of the very courtroom and individuals we have questioning jurors. Dr. Broda-Bahm explains the bias serves as a motivation for jurors to answer questions with what they believe to be the “right” or “good” answer. “The courtroom itself, with its many trappings of official power and formality, can heighten for jurors a preference for an answer that they believe will satisfy the judge and the attorneys over an answer that honestly conveys a bias.” See,  “Getting Beyond ‘Can You Be Fair?" for a more in depth look at Broda-Bahm’s view of "pre-habilitation" and rehabilitation techniques

Parties seeking to get a juror removed for cause are stuck between a rock and hard place when judges and opposing counsel set out on the rehabilitative and "pre-habilitative" route. They are forced to use preemptive strikes on jurors they arguably should have been able to dismiss for cause. Further, what a judge views as being “fair and impartial” is arbitrary, so there’s now way to have an equal assessment across the board.

 We put on the rose colored glasses hoping that bias is as easy as an “on/off” switch jurors just sort of hit, but is it really plausible to believe that jurors facing a judge are going to always honestly indicate that they “can’t be fair and impartial?” It's unrealistic, and has empirically been shown to be so. In the long run attorneys on either side are hurting themselves in the voir dire process when they seek to cover up potential bias. Further, judges should err on the side of caution when it comes to potential strikes for cause. Close calls should be cause calls. 

Trial consultant Charli Morris does offer hope for the frustrated attorney (or aspiring attorney). Morris believes educating judges on "pre-habilitation" and rehabilitation are one step to changing the traditional voir dire practice. Further, her article "If Impartial is Impossible: How Did We Get Here and What Are We To Do?" offers an extensive list of techniques attorneys can use to make their challenges rehabilitation resistant. As trial attorneys and jury consultants continue to look at the latest jury studies and innovative techniques, I can only hope this is one that continues to be developed.