Taking Voir Dire Online

by Michael Boucher

Remember when personal information and secrets were kept in a diary?   What if you could look at a potential jurors’ personal diary?  In a way you can.  Aspects of online social networking sites are the modern day version of the diary.  Individuals document their daily experiences, moods, attitudes and a plethora of other valuable information, including biases.  This information can be crucial when picking a jury.  An article in Lawyers USA Online¹ cites a Pew research study that claims the number of adults using online social networking sites has quadrupled over the past four years.  The study also goes on to claim that as many as 35% of adults now have online profiles or diaries.  Now when I was young, my Mom would tell me to stay out of my sister’s diary.  Is my Mom right, should attorneys stay out of jurors’ online profiles or online information in general?   While Facebook and Myspace profiles are generally more intimate personal information, the internet in general, can provide insight into jurors’ minds that can win or lose a case.  Some claim that it is unethical to research jurors online, while others argue online information is public and should be used in whatever manner is useful.

Let’s look at it this way.  You’re a criminal defense attorney representing a white male for the murder of a minority.  You conduct what I will refer to as a conventional voir dire and you sit a jury.  After a day or two of trial you noticed one of the jurors seems very angry towards your client.  Her name is Erin and when you Google her you find that she is a blogger.  On her site you find a string of posts.  One such post, on September 28 is entitled, "I will eat your babies, ****!" In her post, she states that she is terrified of white people because, "I am pretty sure they all gang rapists."   She goes on to state, "I totally understand how innocent people that go to prison turn into hardened criminals.”  Then, on the 31st, another post, "I am a juror," and it is your trial.   Anne Reed a jury consultant gave this example in a May 2009 Legal Technology² article.  Neither Reeds example nor Erin’s blogged stated the type of case, but her blog did state, “i can't wait to decide the lives and deaths of men tomorrow³.”   As an attorney, when would you want to find out about Erin’s views? 

Now as with most things in life you can’t judge a book by its cover.  Often time online personas are not a true representation of an individual.  Many people are online for fantasy and the information you find online may be a pitfall.  As with all research, the information collected must be critically analyzed and put into the proper context.  When you are vetting prospective jurors the same rules apply, it is prudent to use all available resources and to properly analyze your data.  In my experience every avenue you look down will provide some good and bad information.  Without critical analysis you cannot confidently rely on information.  Online social networking sites are one such avenue.  Other avenues include blogs, editorial pieces, organizational memberships and support groups. 

Regardless of the research conducted, the main qualities that are most useful are biases, identifications, motivations and influencing experiences.  Biases are identified in many ways.  There is the obvious bias that states a persons’ position clearly.  Erin stated it very clearly in her distrust of white people.  Although her statement is offered as a phobia, her statement is clear.  Again, this must be critically analyzed.  If you visit her blog site, she has a picture and she appears to be a white woman.  This presents a potential contradiction of information which may be a pitfall. 

Individual identifications are generally revealed through memberships in organizations such as the Sierra Club or support groups.  What an individual identifies with may reveal crucial positions and additional biases.  If I was sitting a jury for an environmental defense case, I would not want members of the Sierra Club on that jury.  While traditional voir dire does provide an avenue to flush out this information, not all people are always honest.  Moreover, if an individual has a strong identity with a particular organization, they may have an agenda, therefore the motivation to be dishonest.  In this example, online searching provides a critical analysis for the voir dire information obtained.  The juror may explain in voir dire that they are not a member of any organizations or associations, but the web might tell a different story.

Motivation is generally difficult to discover.  If a person is a member of the Sierra Club, what is their motivation for being a member?  People align and identify with causes or movements for different reasons.  It may be that a person wants to help save the planet, or it may be they have an ax to grind against big business.  Perhaps there was an influencing experience that may reveal the motivation.  Maybe a family member died of cancer and there was contaminated drinking water in the home from a nearby plant.  Often times these experiences are documented in online profiles, just like my sister’s diary.

As the saying goes, knowledge is power.  In 2009 the knowledge gained from online social networking sites and the web in general provides an invaluable resource.  I would argue that if you are not researching potential jurors online as an avenue to help win your case, you are certainly stacking the cards against your client.  Odds are, the opposing counsel is looking to harness the power of online information about jurors.  Next time you are selecting a jury, take a look across the courtroom.

1-http://lawyersusaonline.com/blog/2009/03/03/what-jurors%e2%80%99-web-presence-says-about-them/
2-http://www.law.com/jsp/legaltechnology/PubArticleFriendlyLT.jsp?id=1202423725315
3-This blog post can be found at http://oakparkmastermind.blogspot.com/2007/10/i-am-juror.html